Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/420

 380  obligations of the constitutional compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted, that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra constitutional right, to make the appeal.

"This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States, decided by the state to be unconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three fourths of the parties.

"The distinguished names and high authorities, which appear to have asserted, and given a practical scope to this doctrine, entitle it to a respect, which it might be difficult otherwise to feel for it.

"If the doctrine were to be understood as requiring the three fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the constitution, which authorizes two thirds of the states to institute, and three fourths to effectuate an amendment of the constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.

"But it is understood, that the nullifying doctrine imports, that the decision of the state is to be presumed valid, and that it overrules the law of the United States, unless overruled by three fourths of the states.

"Can more be necessary to demonstrate the inadmissibility of such a doctrine, than, that it puts it in the power of the smallest fraction over one fourth of the United States, that is, of seven states out of twenty-four, to give the law, and even the constitution to seventeen states, each of the seventeen having, as parties to the constitution, an equal right with each of the seven, to expound it, and to insist on the exposition? That the seven might, in particular instances be right, and the seventeen wrong, is more than possible. But to establish a positive and permanent rule giving such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.

"It is to be recollected, that the constitution was proposed to the people of the states as a whole, and unanimously adopted by the states as a whole, it being a part of the constitution, that not less than three fourths of the states should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake, a proportion even