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Updated: May 9, 2025
In the struggle for party ascendency, the idea was conceived of using the bank in aid of one of the factions which divided the country. The machinators of this scheme failed to accomplish it, and, being in power at the time, determined to destroy it, upon the plea of its unconstitutionality, and of having been used to overturn the Government that is, the party in power.
Laws were continually avoided both by the employers and the employees; workmen transgressed rules laid down for their welfare; the passage and execution of many laws were hampered to the last degree by short-sighted employers; the courts invalidated much legislation on the ground of unconstitutionality; and progress was frequently confined to leading states or corporations and was by no means universal.
Not foreseeing the dangerous power and countless evils which such an institution might entail on the country, nor perceiving the connection which it was designed to form between the bank and the other branches of the miscalled "American system," but feeling the embarrassments of the Treasury and of the business of the country consequent upon the war, some of our statesmen who had held different and sounder views were induced to yield their scruples and, indeed, settled convictions of its unconstitutionality, and to give it their sanction as an expedient which they vainly hoped might produce relief.
To contract by treaty to create a state of war upon certain contingencies arising would be equally tainted with unconstitutionality and would be null and inoperative.
The inherent right in the people to reform their government I do not deny; and they have another right, and that is, to resist unconstitutional laws, without overturning the government. It is no doctrine of mine that unconstitutional laws bind the people. The great question is, Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?
Regarding the bill as asserting a power in the Federal Government to construct roads and canals within the limits of the States in which they were made, he objected to its passage on the ground of its unconstitutionality, declaring that the assent of the respective States in the mode provided by the bill could not confer the power in question; that the only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution, and superadding to these avowals his opinion that "a restriction of the power 'to provide for the common defense and general welfare' to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution."
Before this travesty on the administration of law could be brought before the court of last resort, and there meet with the reversal and rebuke it deserved, men were imprisoned under sentences of many years' duration. The people contested these measures one by one in the courts; presenting in case after case the different phases of the subject, and urging the unconstitutionality of the measure.
Mark, my fellow-citizens, that by the admission of your leaders the unconstitutionality must be palpable, or it will not justify either resistance or nullification. What is the meaning of the word palpable in the sense in which it is here used? That which is apparent to everyone; that which no man of ordinary intellect will fail to perceive.
The thief in jail, the mob-leader in the hands of the police, and the murderer on the drop will be unanimous in favor of this new heresy of the unconstitutionality of Constitutions, with its Newgate Calendar of confessors, martyrs, and saints. Falstaff's famous regiment would have volunteered to a man for its propagation or its defence.
Now, as I have said, in all this I acted under the resolutions of the State of Massachusetts, certainly concurrent with my own judgment, so often repeated, and reaffirmed by the unanimous consent of all men of all parties, that I could not well go through the series, pointing out, not only the impolicy, but the unconstitutionality, of such annexation.
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