Constitutional history -- United States -- Sources; Constitutional law -- United States
But it may be again asked, Who is to judge of the NECESSITY and
PROPRIETY of the laws to be passed for executing the powers of the
Union? I answer, first, that this question arises as well and as fully
upon the simple grant of those powers as upon the declaratory clause;
and I answer, in the second place, that the national government, like
every other, must judge, in the first instance, of the proper exercise
of its powers, and its constituents in the last. If the federal
government should overpass the just bounds of its authority and make
a tyrannical use of its powers, the people, whose creature it is, must
appeal to the standard they have formed, and take such measures to
redress the injury done to the Constitution as the exigency may suggest
and prudence justify. The propriety of a law, in a constitutional light,
must always be determined by the nature of the powers upon which it is
founded. Suppose, by some forced constructions of its authority (which,
indeed, cannot easily be imagined), the Federal legislature should
attempt to vary the law of descent in any State, would it not be evident
that, in making such an attempt, it had exceeded its jurisdiction, and
infringed upon that of the State? Suppose, again, that upon the pretense
of an interference with its revenues, it should undertake to abrogate
a landtax imposed by the authority of a State; would it not be equally
evident that this was an invasion of that concurrent jurisdiction in
respect to this species of tax, which its Constitution plainly supposes
to exist in the State governments? If there ever should be a doubt on
this head, the credit of it will be entirely due to those reasoners who,
in the imprudent zeal of their animosity to the plan of the convention,
have labored to envelop it in a cloud calculated to obscure the plainest
and simplest truths.
Public-domain text, read in full here on John Shaqi.
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