Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/175

 CH. XXVII.] of argument, displayed in the various discussions, backed by the high authority, claimed for the Supreme Court to adjust such controversies, not a single constitutional question of a political character, which has ever been agitated during this long period, has been settled in the public opinion, except that of the unconstitutionality of the Alien, and Sedition laws; and what is remarkable, that was settled against the decision of the Supreme Court." Now, in the first place, the constitutionality of the Alien, and Sedition laws never came before the Supreme Court for decision; and consequently, never was decided by that court. In the next place, what is meant by public opinion deciding constitutional questions? What public opinion? Where, and at what time delivered? It is notorious, that some of the ablest statesmen and jurists of America, at the time of the passage of these acts, and ever since, have maintained the constitutionality of these laws. They were upheld, as constitutional, by some of the most intelligent, and able state legislatures in the Union, in deliberate resolutions affirming their constitutionality. Nay more, it may be affirmed, that at the time, when the controversy engaged the public mind most earnestly upon the subject, there was, (to say the least of it) as great a weight of judicial, and professional talent, learning, and patriotism, enlisted in their favour, as there ever has been against them. If, by being settled by public opinion, is meant that all the people of America were united in one opinion on the subject, the correctness of the statement cannot be admitted; though its sincerity will not be questioned. It is one thing to believe a doctrine universally admitted, because we ourselves think it clear; and quite another thing to establish the fact. The Sedition and Alien laws were generally deemed inexpedient, and therefore any allusion to them now rarely occurs, except in political discussions, when they are introduced to add odium to the party, by which they were adopted. But the most serious doubts may be entertained, whether even in the present day, a majority of constitutional lawyers, or of judicial opinions, deliberately hold them to be unconstitutional.

If public opinion is to decide constitutional questions, instead of the public functionaries of the government in their deliberate discussions and judgments, (a course quite novel in the annals of jurisprudence,) it would be desirable to have some mode of ascertaining it in a satisfactory, and conclusive form; and some uniform test of it, independent of mere private conjectures. No such mode has, as yet, been provided in the constitution. And, perhaps, it will be found upon due inquiry, that different opinions prevail at the same time on the same subject, in the North, the South, the East, and the West. If the judgments of the Supreme Court (as it is more than hinted) have not, even upon the most deliberate juridical arguments, been satisfactory, can it be expected that popular arguments will be more so? It is said, that not a single constitutional question, except that of the Alien and Sedition laws, has ever been settled. If by this no more is meant, than that all minds have not