Constitution Hill

“ We read that congress shall have power, and again that congress shall not have power. But neither these grants nor these inhibitions have, it is said, any relation to the territories. Against the laws enacted by the congress, or the acts done by the executive, there is no appeal, on behalf of the people of the territories, to any written constitution, or bill of rights, or charter of liberty. We offer them only this highly consolatory thought: a nation of free Americans can be trusted to deal benevolently with you. ”

“ The power of congress to legislate for the territories is full. That is, there is no legislative power elsewhere than in congress, but it is not absolute. The contention is that all the powers of congress are derived from the constitution—including the power to legislate for the territories— and that such legislation must necessarily, always and everywhere, be subject to the limitations of the constitution. ”

“ The civil rights bill, which is above any territorial legislation or any adverse judicial decision in a Territory where our power is supreme, has guarantied to him beyond peril every civil right known under the Constitution of the United States . ”

“ Little aid can be derived from the vague and illusory but often repeated formula that Congress 'by occupying the field' has excluded from it all state legislation. Every Act of Congress occupies some field, but we must know the boundaries of that field before we can say that it has precluded a state from the exercise of any power reserved to it by the Constitution. To discover the boundaries we look to the federal statute itself, read in the light of its constitutional setting and its legislative history. ”

“ It is, indeed, distressing to reflect that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law—a law filling so many ample volumes; a law overspreading the entire field of legislation ”

“ It is of the highest public importance that the jurisdiction of the state should be resisted at the borders of those places where the power of exclusive legislation is vested in the Congress by the Constitution. ”

“ But there is no doubt that the advocates of the common law were right in resisting the introduction of the pliant principles of the civilians. If it be true that the common law, and the constitution which grew along with it, embodied no philosophical principle of liberty, it is also true that they embodied no philosophical principle of despotism, such as that which was ready made in the Justinian legislation. ”

“ A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at, in that house, with the greatest indignation. Even in a single government, if the powers of the people rest on the same establishment as is expressed in this Constitution, a bill of rights is by no means a necessary measure. ”

“ If this be true—and it will scarcely be denied by anyone who has a correct idea of his own rights as an American citizen—the grant to Congress of exclusive jurisdiction in the District of Columbia can be interpreted, so far as respects the aggregate people of the United States, as meaning nothing more than to allow to Congress the controlling power necessary to afford a free and safe exercise of the functions assigned to the General Government by the Constitution. ”

“ Legislation producing this latter result, not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the Constitution, and must be disregarded-treated as if never enacted-by all courts recognizing the Constitution as the paramount law of the land. ”

“ This, like the speech of Bacon in the Senate, was afterwards published in the Chronicle. [40] The most important feature of it is the portion devoted to a consideration of the declaration contained in the report, that the right to pass upon the constitutionality of federal laws belongs to the federal government. Denying the correctness of this doctrine, Hill set forth what he conceived to be the true nature of the federal union and the rights of the states in cases of encroachment upon their reserved powers. ”

“ New York has no Bill of Rights, and her Constitution says not a word about the matter. No Bills of Rights appear annexed to the Constitutions of the other States, except the foregoing, and their Constitutions are equally silent. ”

“ The court have said
that Congress cannot exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, beyond what has been delegated.
We are then to find the authority for supreme power in the Territories in the Constitution. What are the limits upon the operations of a Government invested with legislative, executive, and judiciary powers, and charged with the power to dispose of and to make all needful rules and regulations respecting a vast public domain? ”

“ That Congress do not exercise the powers vested in them by the 4th section of the 1st article, but in cases where a state shall neglect or refuse to make the regulations therein mentioned, or shall make regulations subversive of the rights of the people to a free and equal representation in Congress, agreeably to the Constitution. ”

“ In the clause of the ordinance for the government of the Northwest Territory, intended to embrace the same object as that of the constitution, and adopted by the Continental Congress almost at the same time, it was declared that no such law ought ever to be made 'or have force,'-as if any enforcement of it, whether legislative, executive, or judicial, was as much to be guarded against as its formal enactment. ”

“ A sovereign without the means of enforcing civil rights, or compelling the performance, either civilly or criminally, of public duties on the part of the citizens, would be a most extraordinary anomaly. It would prostrate the Union at the feet of the states. It would compel the national government to become a supplicant for justice before the judicature of those, who were by other parts of the constitution placed in subordination to it. ”

“ The limited and well-defined powers under which we acted, and which could not, on any possible construction, embrace an idea of such magnitude as to assent to a general Constitution, in subversion of that, of the state. ”

“ To me, therefore, it is a marvel that in this country, under a Constitution ordained by men who were conversant with the principles of Magna Charta, and claimed them as their birthright, a Constitution which declares in its preamble that it is established 'to secure the blessings of liberty to ourselves and posterity,'-it could ever be contended that an order of the Executive, issued at his will for the arrest and imprisonment of a citizen, where the courts are open and in the full exercise of their jurisdiction, is due process of law, or could ever be made such by an act of Congress. ”

“ Congress can exercise no power over the rights of person or property of a citizen in the Territory which is prohibited by the Constitution. The Government and the citizen, whenever the Territory is open to settlement, both enter it with their respective rights defined and limited by the Constitution.
2. Congress has no right to prohibit the citizens of any particular State or States from taking up their home there, while it permits citizens of other States to do so. Nor has it a right to give privileges to one class of citizens which it refuses to another. ”

“ I dare only to say, that your happy country has not attained in a moment the perfect constitution which gives us admiration. All convenient and well-calculated laws are not framed at once; and those most exceptionable, while they stand, deserve obedience and respect. ”

“ It would be singular enough, if, in framing a national government, that common law, so justly dear to the colonies, as their guide and protection, should cease to have any existence, as applicable to the powers, rights, and privileges of the people, or the obligations, and duties, and powers of the departments of the national government. If the common law has no existence, as to the Union, as a rule or guide, the whole proceedings are completely at the arbitrary pleasure of the government, and its functionaries in all its departments. ”

“ In the Ordinance, Congress had provided a system of fundamental law, intended to be of perpetual obligation, for new communities, whose legislative power was to be moulded by certain original maxims of assumed justice and right. The opportunity thus afforded for shaping the limits of political sovereignty according to the requirements of a preconceived policy, enabled the framers of the Ordinance to introduce a limitation, which is not only peculiar to American constitutional law, but which, like many features of our institutions, grew out of previous abuses. ”

“ I say that this new system shows, in stronger terms than words could declare, that the liberties of the people are secure. It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper. When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed: Is it enumerated in the Constitution? ”

“ But, it has been asked, why not compel a state objecting to the constitutionality of a law to appeal to her sister states by a proposition to amend the Constitution? I answer, because such a course would, in the first instance, admit the exercise of an unconstitutional authority, which the states are not bound to submit to, even for a day; and because it would be absurd to suppose that any redress would ever be obtained by such an appeal, even if a state were at liberty to make it. ”

“ Certainly the most ambitious attempt to impose limits on the State has been the Bill of Rights and other restrictive parts of the American Constitution, in which written limits on government became the fundamental law to be interpreted by a judiciary supposedly independent of the other branches of government. All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. ”