No, I knew it was from the 1840's. But I really dropped the ball on the citation.
Any way, old Taney said in Luther that it was for the Congress to decide which government of a state was legitimate.
None of the so-called seceded state governments had any existence in law.
Walt
[Wlat] No, I knew it was from the 1840's. But I really dropped the ball on the citation.
[Walt 1554] The judicial power of the United States rests with the Supreme Court. --Every-- Justice agreed in 1863 that the Militia Act gave the power to the president to suprress rebellion.
[Walt 1554] This is from Dorr v. Rhode Island:
Upon the foregoing hypothesis, then, the following questions arise:--
1st. Had the people of Rhode Island, in the month of December, 1841, without the sanction or assent of the Legislature, a right to adopt a State constitution for themselves, that constitution establishing a government, republican in form, within the meaning of the Constitution of the United States?
2d. Was the evidence of the adoption by the people of Rhode Island of such a constitution, offered in the court below by the plaintiff in this cause, competent to prove the fact of the adoption of such constitution?
3d. Upon the issuing of the proclamation of the convention, by which it had been declared duly adopted, namely, on the 13th day of January, 1842, and the acts under it, did not that constitution become the supreme law of the State of Rhode Island?
If these questions are answered in the negative, then the theory of American free governments for the States is unavailable in practice.
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So far as the foregoing authorities are proof of anything, they establish the following positions, viz.:--
1. That in the United States no definite, uniform mode has ever been established for either instituting or changing a form of State government.
2. That State legislatures have no power or authority over the subject, and can interfere only by usurpation, any further than, like other individuals, to recommend.
3. That the great body of the people may change their form of government at any time, in any peaceful way, and by any mode of operations that they for themselves determine to by expedient.
4. That even where a subsisting constitution points out a particular mode of change, the people are not bound to follow the mode so pointed out; but may at their pleasure adopt another.
5. That where no constitution exists, and no fundamental law prescribes any mode of amendment, there they must adopt a mode for themselves; and the mode they do adopt, when adopted, ratified, or acquiesced in by a majority of the people, is binding upon all.
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8th. Why a revolution to change the form of a State government can never be resorted to within the limits of the United States Constitution, while a State remains in the Union.
The United States Constitution, Art. 4, Sect. 4, provides that 'the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.'
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The rule of State decision does not apply to this case,--
1. Because it involves no rule of property nor construction of a statute enacted by a legislature acknowledged by both parties, but related to the existence of a constitution and government under it.
2. The court never decided which was the valid constitution, but refused to take jurisdiction of that question or to hear it at all.
3. The excitement of the times forms an exception.
4. It was made a political question, and not a judicial construction, as far as it entered into the case.
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Moreover, the Constitution of the United States, as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department.
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They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the federal government to interfere. But Congress thought otherwise, and no doubt wisely; and by the act of February 28, 1795, provided, that, 'in case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to sufficient to suppress such insurrection.'
By this act, the power of deciding whether the exigency had arisen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act.
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A question very similar to this arose in the case of Martin v. Mott, 12 Wheat. 29-31. The first clause of the first section of the act of February 28, 1795, of which we have been speaking, authorizes the President to call out the militia to repel invasion. It is the second clause in the same section which authorizes the call to suppress an insurrection against a State [48 U.S. 1, 45] government. The power given to the President in each case is the same,- with this difference only, that it cannot be exercised by him in the latter case, except upon the application of the legislature or executive of the State.
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No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is committed would undoubtedly be answerable.
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No one, we believe, has ever doubted the proposition, that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it.
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