View of the Constitution of the United States - St. George Tucker

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the study of the constitution is not more necessary to the right understanding of the force and obligation of any positive law, than the study of the law, as a science, is to a full and perfect understanding of the constitution: for the rules of law must not unfrequently be consulted, to explain the principles contained in the constitution: thus, they mutually contribute to the due investigation and understanding of each other.

      In a government founded on the basis of equal liberty among all its citizens, to be ignorant of the law and the constitution, is to be ignorant of the rights of the citizen. Ignorance is invariably the parent of error: where it is blended with a turbulent and unquiet temper, it infallibly produces licentiousness, the most terrible enemy to liberty, except despotism: and even more terrible than despotism itself, were it not invariably short lived, whilst the other endures for ages; on the contrary, when ignorance is united with supineness, liberty becomes lethargic, and despotism erects her standard without opposition. An enlightened people, who have once attained the blessings of a free government, can never be enslaved until they abandon virtue and relinquish science. These are the nurses of infant liberty and its fostering genii when matured. To seek their favour is to secure it; to neglect, is infallibly to lose it.

      If an acquaintance with the constitution and laws of our country be requisite to preserve the blessings of freedom to the people, it necessarily follows that those who are to frame laws or administer the government should possess a thorough knowledge of these subjects. For what can be more absurd than that a person wholly ignorant of the constitution should presume to make laws pursuant thereto? or that one who neither understands the constitution nor the law, should boldly adventure to administer the government! Yet such instances occur not unfrequently in all countries, and the danger that they will frequently occur in this, is perhaps greater than in any other. The road to office, in most other countries is filled with a thousand turnpikes, which are rarely opened but to the rich and powerful. These possess at least the means of education and information. With us it is equally open to all; but men of talents and virtue are not always the foremost in the course; persons of this description are generally more backward, than those of inferior pretensions, to the confidence of the people; a confidence which, if they do not, they are infinitely more liable to abuse, than if their minds had been properly enlightened by study and application.

      Not only the study of the constitution, but an acquaintance with the civil history of our country, seems necessary to constitute a thorough knowledge of its laws. The several epochs required to be well known, when the laws of England were the sole rule of jurisprudence among us; or were interwoven with the laws of our own institution; which last were nevertheless considered in a subordinate degree of authority; or when the authority of the former was wholly superseded, and the latter substituted entirely in their stead, without any check or controul; and, lastly, when by an entire change of the government a new order of things was introduced, and the authority of a part of the laws of the commonwealth were submitted to the controul of the federal constitution, and jurisprudence; otherwise the student can never be certain of the validity of a law, but must wander perpetually in the mazes of doubt and error. To assist his researches in all these respects has been particularly the object of the Editor’s labours; in submitting the result of them to the public, he is not without hope that the design will be approved, however the execution may fall short of his own wishes, or the public expectation.

      ST. GEO. TUCKER.

      July 10th, 1802.

      This brief essay is Tucker’s Appendix A to the first volume of Blackstone’s Commentaries. In it he wishes to make the point that, with the Revolution, a new basis of sovereignty was established—that of the people, in contrast to the states of the Old World. This was a necessary preface to the succeeding essay “Of the Several Forms of Government.”

      Blackstone’s Com. page 46. “Sovereignty and Legislature are indeed convertible terms; one cannot subsist without the other.”

      THE GENERALITY OF EXPRESSION in this passage might lead those who have not considered with attention the new lights which the American revolution has spread over the science of politics, to conclude with the learned commentator, that, “By the sovereign power, is meant the making of laws; and where-ever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of justice may put on. It being at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions. … or else the constitution is at an end.”

      Before we yield our full assent to this conclusion, we must advert to a fact, probably truly stated by the learned author at the time he wrote; “That the original written compact of society had, perhaps, in no instance, been ever formally expressed, at the first institution of a state.”

      In governments whose original foundations cannot be traced to the certain and undeniable criterion of an original written compact. … whose forms as well as principles are subject to perpetual variation from the usurpations of the strong, or the concessions of the weak; where tradition supplies the place of written evidence; where every new construction is in fact a new edict; and where the fountain of power hath been immemorially transferred from the people, to the usurpers of their natural rights, our author’s reasoning on this subject will not easily be controverted. … But the American revolution has formed a new epoch in the history of civil institutions, by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers. … The world, for the first time since the annals of its inhabitants began, saw an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds; thus exhibiting a political phenomenon unknown to former ages. … This memorable precedent was soon followed by the far greater number of the states in the union, and led the way to that instrument, by which the union of the confederated states has since been completed, and in which, as we shall hereafter endeavor to show, the sovereignty of the people, and the responsibility of their servants are principles fundamentally, and unequivocally, established; in which the powers of the several branches of government are defined, and the excess of them, as well in the legislature, as in the other branches, finds limits, which cannot be transgressed without offending against that greater power from whom all authority, among us, is derived; to wit, the PEOPLE.

      To illustrate this by an example. By the constitution of the United States, the solemn and original compact here referred to, being the act of the people, and by them declared to be the supreme law of the land, the legislative powers thereby granted; are vested in a congress, to consist of a senate and house of representatives. As these powers, on the one hand, are extended to certain objects, as to lay and collect taxes, duties, &c. so on the other they are clearly limited and restrained; as that no tax or duty shall be laid on articles exported from any state … nor any preference given by any regulation of commerce or revenue to the ports of one state over those of another, &c. These, and several others, are objects to which the power of the legislature does not extend; and should congress be so unwise as to pass an act contrary to these restrictions, the other powers of the state are not bound to obey the legislative power in the execution of their several functions, as our author expresses it: but the very reverse is their duty, being sworn to support the constitution, which unless they do in opposition to such encroachments, the constitution would indeed be at an end.

      Here then we must resort to a distinction which the institution and nature of our government has introduced into the western hemisphere; which, however, can only obtain in governments where power is not usurped but delegated, and where authority is a trust and not a right … nor can it ever be truly ascertained where there is not a written constitution to resort to. A distinction, nevertheless, which certainly does exist between the indefinite and unlimited power of the people, in whom the sovereignty of these states, ultimately, substantially, and unquestionably resides, and the definite powers of the

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