Cherokee Phoenix

From the New York Advertiser

Published February, 19, 1831

Page 1 Column 3b

From the New York Advertiser


But it is said that it is degrading to the dignity of a sovereign independent state, to be summoned as a party in a law suit, before the Supreme Court. It is not degrading to a state to do, or to be forced to do, what all states have consented to do, in adopting the constitution. If a state undertakes to enact laws in violation of the provision of the constitution, it is necessary for the due administration of justice, that enactments should be declared by this tribunal void. There is no tribunal of this description, besides the Supreme Court of the United States; and the wisdom of man, if employed for the purpose, could not devise a better or safer one than this. The Judges of that court are selected for their learning talents, and integrity, from different parts of the Union. They bring to the court an extensive acquaintance with the character of the people of the states, with their laws, usages, and institution. They are severally inhabitants of the states from which they are selected, and are dependent upon their laws for all the ordinary purposes of life, in the same manner, and to the same extent, that all the other citizens of the states are. They have the same interest then, in protecting the states in the enjoyment of their rights and privileges, that is experienced by all their fellow citizens in the states. What possible inducement can they have, therefore, to degrade the states, to deprive them of their rights, or undermine or destroy their sovereignty and independence? Under these circumstances, it is not to be supposed that they can be actuated by bad motives, but that their object must be to administer justice, and execute the laws according to their true letter and spirit. Nor is it easy to imagine that they can be disposed to grasp at illegal jurisdiction, for they already have more business to do than with all their industry and labor they can accomplish. An amendment of the constitution protects the several states being sued, in law or equity, by a citizen of another, or a foreign state. But when, in the progress of a suit, legally instituted, and pending between parties constitutionally before a state court, it becomes necessary to decide on the constitutionality of some legislative act of one of the states, this raises a point on which either party who is interested in the decision, may appeal in the last resort to the Supreme court of the United States, for the purpose of having that question only decided. And we know of no distinction in this respect between cases in civil or criminal jurisprudence. It is certainly as interesting to a man to avoid being hung under the operation of an unconstitutional legislative act, as it is to have his property secured from such an act.

If a point of this sort arises in a suit in which a state was originally a party, and in criminal cases this must always be the fact, it becomes not only proper, but necessary, to notify the state by citation to its executive head, or in some other mode which the law, or the practice may provide, that it is carried to the Supreme Court, in order that the state authority may, if it thinks proper, appear by counsel before that tribunal, and vindicate the act of the state. This is not in contravention of the clause in the Constitution, to which we have alluded, for it is not the commencement of an action against the state, but it is a resort to the only tribunal which has jurisdiction, for the purpose of obtaining the determination of a collateral question that has grown out of a suit regularly before the court, to which the state has, either by its own act, or incidentally, been introduced. If there is any degradation in this, it is in having the soundness of its legislative acts questioned, or as the case may be, declared to be void. But this can be done, when the case is regularly before the Supreme Court, whether the state make a formal appearance, or not; and if the court eventually determine that act in question is unconstitutional, it is of course void, and the state cannot enforce its execution without engaging in hostilities against the national government.

What then is the ground of all the clamour against the court, and the attacks upon its character? They manifestly proceed, not from any apprehension of its want of impartiality or capacity, but from a full conviction of its fearless integrity, justice, and independence. The state of Georgia dare not, and if possible to avoid it will not submit the question of the constitutionality of its acts respecting the Cherokees, to this learned, able, upright and most respectable tribunal. They know those acts are unjust, oppressive, and in violation of the laws of the United States; and they doubtless believe, that is once brought to the scrutiny, the court will declare them to be void. Hence every possible mode will be resorted to, in order to prevent a decision- no matter whether the effort reached to the case of life or death-all must give way to their ordinate spirit of cupidity, injustice and oppression. And aided by the exercise of a power, usurped by the present chief magistrate of the United States in dispensing with the laws of the nation which he has solemnly sworn to execute, they may succeed. But if they do succeed under such an influence, it will stamp the character of our government with deep disgrace.

We cannot be persuaded by anything less powerful than the fact itself, that the people of this country will stand carelessly by and see this great branch of their government trampled under foot, by uninterested, ambitious, and unprincipled politicians. When the Supreme Court are stripped of their constitutional powers and prerogatives, the government itself will be undermined, and its destruction cannot be avoided. The national government cannot exist, and perform its necessary duties, without the aid ' support of the judiciary. Once deprived the court of the power of determining constitutional questions, and the legislatures of the states will be let loose from all control, and as interest or passion may influence them, will reduce the national government to a state of dependence and decrepitude, which would be more characteristic of the authority of a feeble colony, than that of a large powerful, independent nation.