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war_news_from_mexicoThe Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it—the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge of the extent of his own powers, without reference to his constituent? To a certain extent he is compelled to do this, in the very act of exercising them, but this is always in subordination to the authority by whom his powers were conferred. If this were not so, the result would be, that the agent would possess every power which the constituent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason.

If such a rule should prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the federal government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single department of that government may do so? Nay, it is said that this department may not only judge for itself, but for the other departments also. This is an absurdity as pernicious as it is gross and palpable. If the judiciary may determine the powers of the federal government, it may pronounce them either less or more than they really are. That government at least would have no right to complain of the decisions of an umpire which it had chosen for itself, and endeavored to force upon the States and the people. Thus a single department might deny to both the others, salutary powers which they really possessed, and which the public interest or the public safety might require them to exercise; or it might confer on them powers never conceded, inconsistent with private right, and dangerous to public liberty. —from A Brief Enquiry into the Nature and Character of our Federal Government

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2 replies to this post
  1. “Thus a single department might deny to both the others, salutary powers which they really possessed, and which the public interest or the public safety might require them to exercise; or it might confer on them powers never conceded, inconsistent with private right, and dangerous to public liberty.”

    Too bad for us all that the latter is what occurred wherein the “government” has arrogated powers unto itself that were never granted. Of course “progressives” and “liberals” will always find them in the emanations and penumbras. I’ll have to get a copy of Upshur’s A Brief Inquiry as it should go well with Tucker’s View of the Constitution and Liberty Fund’s Webster-Hayne Debate.

  2. Mr. Upshur must be rolling over in his grave. Reminds me of Franklins comment on leaving the Constitutional Convention as to what kind of government they fashioned, I believe it was “a Republic Madame if we can keep it.” I can stand correction on that if need be.
    Plainly any government is ultimately liable to corruption, excessive power, waste and scandal, hence the never ending need for men of character. Today they are more needed then ever.

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