The Difficulty Which One Here Feels Is That Which Always
Attends An Attempt At Finality In Political Arrangements.
One would
be inclined to say at once that the law should be altered, and that
as the money
Required is for the purposes of the Union and for State
purposes, such a change should be made as would enable Congress to
levy an income tax on the general income of the nation. But
Congress cannot go beyond the Constitution.
It is true that the Constitution is not final, and that it contains
an express article ordaining the manner in which it may be amended.
And perhaps I may as well explain here the manner in which this can
be done, although by doing so I am departing from the order in which
the Constitution is written. It is not final, and amendments have
been made to it. But the making of such amendments is an operation
so ponderous and troublesome that the difficulty attached to any
such change envelops the Constitution with many of the troubles of
finality. With us there is nothing beyond an act of Parliament. An
act of Parliament with us cannot be unconstitutional. But no such
power has been confided to Congress, or to Congress and the
President together. No amendment of the Constitution can be made
without the sanction of the State legislatures. Congress may
propose any amendments, as to the expediency of which two-thirds of
both Houses shall be agreed; but before such amendments can be
accepted they must be ratified by the legislatures of three-fourths
of the States, or by conventions in three-fourths of the States, "as
the one or the other mode of ratification may be proposed by
Congress." Or Congress, instead of proposing the amendments, may,
on an application from the legislatures of two-thirds of the
different States, call a convention for the proposing of them. In
which latter case the ratification by the different States must be
made after the same fashion as that required in the former case. I
do not know that I have succeeded in making clearly intelligible the
circumstances under which the Constitution can be amended; but I
think I may have succeeded in explaining that those circumstances
are difficult and tedious. In a matter of taxation why should
States agree to an alteration proposed with the very object of
increasing their proportion of the national burden? But unless such
States will agree - unless Rhode Island, Massachusetts, and New York
will consent to put their own necks into the yoke - direct taxation
cannot be levied on them in a manner available for national
purposes. I do believe that Rhode Island and Massachusetts at
present possess a patriotism sufficient for such an act. But the
mode of doing the work will create disagreement, or at any rate,
tedious delay and difficulty. How shall the Constitution be
constitutionally amended while one-third of the States are in
revolt?
In the eighth section of its first article the Constitution gives a
list of the duties which Congress shall perform - of things, in
short, which it shall do or shall have power to do: To raise taxes;
to regulate commerce and the naturalization of citizens; to coin
money, and protect it when coined; to establish postal
communication; to make laws for defense of patents and copyrights;
to constitute national courts of law inferior to the Supreme Court;
to punish piracies; to declare war; to raise, pay for, and govern
armies, navies, and militia; and to exercise exclusive legislation
in a certain district which shall contain the seat of government of
the United States, and which is therefore to be regarded as
belonging to the nation at large, and not to any particular State.
This district is now called the District of Columbia. It is
situated on the Potomac, and contains the City of Washington.
Then the ninth section of the same article declares what Congress
shall not do. Certain immigration shall not be prohibited; THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS SHALL NOT BE SUSPENDED,
except under certain circumstances; no ex post facto law shall be
passed; no direct tax shall be laid unless in proportion to the
census; no tax shall be laid on exports; no money shall be drawn
from the treasury but by legal appropriation; no title of nobility
shall be granted.
The above are lists or catalogues of the powers which Congress has,
and of the powers which Congress has not - of what Congress may do,
and of what Congress may not do; and having given them thus
seriatim, I may here perhaps be best enabled to say a few words as
to the suspension of the privilege of the writ of habeas corpus in
the United States. It is generally known that this privilege has
been suspended during the existence of the present rebellion very
many times; that this has been done by the Executive, and not by
Congress; and that it is maintained by the Executive and by those
who defend the conduct of the now acting Executive of the United
States that the power of suspending the writ has been given by the
Constitution to the President and not to Congress. I confess that I
cannot understand how any man familiar either with the wording or
with the spirit of the Constitution should hold such an argument.
To me it appears manifest that the Executive, in suspending the
privilege of the writ without the authority of Congress, has
committed a breach of the Constitution. Were the case one referring
to our British Constitution, a plain man, knowing little of
parliamentary usage and nothing of law lore, would probably feel
some hesitation in expressing any decided opinion on such a subject,
seeing that our constitution is unwritten. But the intention has
been that every citizen of the United States should know and
understand the rules under which he is to live, and that he that
runs may read.
As this matter has been argued by Mr. Horace Binney, a lawyer of
Philadelphia - much trusted, of very great and of deserved eminence
throughout the States - in a pamphlet in which he defends the
suspension of the privilege of the writ by the President, I will
take the position of the question as summed up by him in his last
page, and compare it with that clause in the Constitution by which
the suspension of the privilege under certain circumstances is
decreed; and to enable me to do this I will, in the first place,
quote the words of the clause in question:
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