St. George Tucker was professor of law at the College of William and Mary, one of the leading judges of the General Court in Virginia, and the American editor of Blackstone’s Commentaries, the most influential and authoritative legal work of the period. In the 1803 edition of the Commentaries, he attached an appendix discussing the meaning of the U.S. Constitution. This work was drawn from the notes if his lectures given throughout the 1790’s and contemporaneous with the earliest years of the Constitution.
In this passage from a section entitled, Section 13 — Restraints on Powers of Congress (cont.), which I just happened to notice, he discusses the importance of the power of judicial nullification, as well as the nature of the right to keep and bear arms–which is discussed at the end in the context of other individual rights such as that of property and assembly. You will also notice the antipathy towards the British parliamentary model. This excerpt is long for a blog, but I did not want to alter the complete context of the quote. I have broken what is one very long passage into separate paragraphs and put the most relevant passages in bold:
In the United States, the great and essential rights of the people are secured against legislative as well as executive ambition. . . . They are secured, not by laws, only, which the legislature who makes them may repeal, and annul at its pleasure; but by constitutions, paramount to all laws: defining and limiting the powers of the legislature itself, and opposing barriers against encroachments, which it can not pass, without warning the people of their danger.
Secondly, by that division, and distribution of power between the federal, and the state governments, by which each is in some degree made a check upon the excesses of the other. For although the states possess no constitutional negative upon the proceedings of the congress of the United States, yet it seems to he a just inference and conclusion, that as the powers of the federal government result from the compact to which the states are parties; and are limited by the plain sense of the instrument constituting that compact; they are no further valid, than as they are authorised by the grants enumerated therein: and, that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by that compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.
Thirdly, by the constitution of the legislative department itself, and the separation and division of powers, between the different branches, both of the congress, and of the state legislatures: in all which, an immediate dependence, either from the people, or the states, is happily, in a very great degree preserved.
Fourthly, by the qualified negative which the constitution of the United States, gives to the president, upon all the proceedings of congress, except a question of adjournment.
Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive.
In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game-laws, as was before observed, have been converted into the means of disarming the body of the people: the statute de donis conditionalibus has been the rock, on which the existence and influence of a most powerful aristocracy, has been founded, and erected: the acts directing the mode of petitioning parliament, &c. and those for prohibiting riots: and for suppressing assemblies of free-masons, &c. are so many ways for preventing public meetings of the people to deliberate upon their public, or national concerns. The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion.
[When reading the last sentence, bear in mind that Tucker’s is accurately describing the power of the Federal government before enactment of the Fourteenth Amendment.]
The entirety of Tucker’s Blackstone’s Commentaries can be found on the invaluable website Liberty Library of Constitutional Classics.
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