Shall We Govern Ourselves?
Cincinnati Daily Commercial, November 3, 1860
In the distribution of powers between the three-fold departments of the Federal Government, it was the aim of the framers of the Constitution to guard against any infringement on each others' functions on the one hand, and any violation of popular rights by either department, on the other. Hence the Constitution was most carefully worded so as to define the power of each of the several branches of the Government, and clauses of reservation were put in, for the purpose of guarding against usurpation on the part of either, of powers not clearly granted.
The greatest jealousy appears to have been felt, by the more democratically inclined members of the Federal convention, of the probable absorption by the Supreme judicial tribunal of an inordinate and dangerous share of authority. THOMAS JEFFERSON, PATRICK HENRY, GEORGE MASON and BENJ. FRANKLIN, than whom there were no more enlightened or patriotic statesmen in those days, solemnly protested against the investiture of the judges of the Supreme Court with a life tenure of office. They stated in the most forcible manner, the objections against such a violation of the democratic principle, upon which the government set out. They pointed to the inevitable tendency, on the part of officers unappointed by the people, irresponsible to the people, and irremovable by the people, to enlarge their jurisdiction, and assume powers dangerous to popular liberty. They showed that the privilege of power so unlimited, was almost certain to be abused; and they put on record the most earnest warnings against the manner of appointment, and the tenure of office of these Federal Judges of the Court of last resort.
It is impossible to deny, at this day, that experience has largely justified the apprehensions of these sagacious statesmen. The Supreme Court of the United States, even composed, as it has usually been, of men of high character and attainments, has nevertheless exhibited the inevitable tendency of men in whose hands is lodged a great and irresponsible power. It has undertaken to decide not only legal 'and constitutional questions, but questions of government and political polity. It has transcended its sphere of arbiter between parties in suits legitimately before it, and undertaken to arbitrate between the views which divide political parties in this nation. It has overruled and reversed the decisions of our State Courts, even on questions of purely local and domestic policy. It has arrogated to itself the power to nullify the legislation of sovereign States. It has stealthily incorporated political dicta in its judicial decisions, and pronounced opinions which have acquired a quasi judicial sanction on matters wholly beside the case in hand, and entirely beyond the jurisdiction of the Court.
One of the clearest rights of the people of each separate political community would seem to be the right to refuse to the institution of human slavery a place in their governmental polity and social order. A question so vitally associated with the interests of every citizen can only be properly determined by the aggregate voice of the citizens themselves.—Yet the Supreme Court of the United States has indirectly, if not directly denied this right of self-government, in proclaiming that slaves are property under the Constitution, and then it follows that it is the duty of the Federal Government to extend protection to that property in the Territories. This monstrous decision cuts off the people from controlling their own institutions. It compels them to submit to the introduction of a system of servile labor, odious in most cases to a majority of the people, and destructive of the interests of the free white man. It strips the people of the right of self-government, and delivers them over, bound hand and foot, to the government of the Supreme Court. It invests nine irresponsible and nearly superannuated judges with the power to dictate the institutions of a nation yet to be.
Are the people of the United States prepared to submit to so great a perversion of the forms and the substance of free government as this? If they are, they deserve not only to have negro slavery thrust upon them as an institution, but also to be slaves themselves. If the spirit of liberty has so far succumbed, if the manly independence which should characterise freemen, has so far deteriorated, that they are willing to have their laws made over their heads by the royal fiat of a Supreme Court, it is as well to surrender the name, as we have parted with the essence of free government.
For the Supreme Court to undertake to mould the institutions of future States, is to usurp powers, not only undelegated to it in the Constitution, but expressly reserved by that instrument to the people. It is one of the elementary rights of every people to decide such questions for themselves. There is no meaning or relevancy in a democratic form of government, if the democratic principle is to be straightway extracted from it, by nine respectable gentlemen in black gowns, sitting in conclave at Washington. This centralized junta of power, which is to lord it over the people's heritage, and make or unmake institutions at a word, is a singular outcome for a nation which set out to be a republic. We might as well have king and lords at once, or be ruled by an oligarchy of nobles, as to arrive at the same end of surrendering the first principle of a representative government, through the covert but absolute usurpation of the Supreme Court.