THE REMEDY
When the servants of the people who have been selected and sworn for the sole purpose of maintaining the constitutional provisions which the people have established for the security of their rights, fail so completely to do what they have been appointed to do, and really subvert the Constitution instead of support it, then the right to do this themselves, in their own proper persons, rests by a double tenure with the people.ROP 258.2
First, it is always the right and just prerogative of the people to set the actions of these servants alongside of the Constitution and judge whether they have indeed supported it or failed to support it. Remember the words of Dickinson, quoted on page 144, that “the people must restore things to that order from which their functionaries have departed;” and of Wilson, on page 80, that “the supreme power resides in the people, and they never part with it;” the words of Bryce, quoted on pages 150, 151, that “the people censure any interpretation which palpably departs from the old lines;” and the words of Lincoln, quoted on page 141, that “the people of these United States are the rightful masters of both Congresses and courts; not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.”ROP 258.3
This right rests always with the people, for them freely to exercise. But when the agents which they have appointed for the very purpose of detecting unconstitutional laws, and protecting the people from their injustice-when these agents themselves not only fail to do this, but actually aid in fastening unconstitutional statutes upon the people, then the right of the people to test the statutes by the Constitution, being “incapable of annihilation,” returns to the people, and rests with them, by additional tenure, and it then of right devolves upon the people, themselves and for themselves, and each one for himself, to decide the case, declare such law unconstitutional and void, and treat it so in all their actions.ROP 259.1
This is not to say, nor even to imply, that every man is at liberty to disregard, or disrespect, whatever action of the government he may not personally agree with. It is to say that it is absolutely incumbent on every citizen to be so well read in the Constitution and the Declaration that he shall know for himself the limitations upon the government, and act accordingly. Every citizen must hold himself, as well as the government, strictly to the Constitution. The Constitution is a limitation, not, indeed, upon the power of the people, except in the prescribed way, but upon the passions and caprices of the people. This is sound American principle. It is the fundamental principle of a government of the people. Let it not be forgotten that one of the chief fathers of this nation, Alexander Hamilton, in persuading the ratification of the Constitution, declared that-ROP 259.2
“Justice is the end of government. It is the end of civil society.... In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly he said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger.”-Federalist LI.ROP 259.3
And another of these, James Madison, nobly said:-ROP 259.4
“An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits.”-Federalist XLVIII.ROP 260.1
And when the agents of the people, appointed under the forms of constitutional government, take the very unconstitutional course that brings about just the anarchy and elective despotism here pointed out, then it is the right of the people, by this double tenure, to see to it that such unconstitutional laws and proceedings are disregarded, and the Constitution made to prevail. This is further sustained by authority. Let all read carefully the following passages, which are equally applicable to Legislatures and State constitutions as to Congress and the national Constitution:-ROP 260.2
“The supreme law-making power is the people, that is, the qualified voters, acting in a prescribed way. The people have by their supreme law, the Constitution, given to Congress a delegated and limited power of legislation. Every statute passed under that power conformably to the Constitution, has all the authority of the Constitution behind it. Any statute passed which goes beyond that power is invalid and incapable of enforcement. It is in fact not a statute at all, because Congress in passing it was not really a law-making body, but a mere group of private persons.ROP 260.3
“Says Chief Justice Marshall: ‘The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if those limits may at any time be passed, by those intended to be restrained? The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like any other acts, is alterable when the Legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.’ROP 260.4
“A statute passed by Congress beyond the scope of its powers is of no more effect than a by-law made ultra vires by an English municipality.”ROP 260.5
“If the subordinate body attempts to transcend the power committed to it, and makes rules for other purposes or under other conditions than those specified by the superior authority, these rules are not law, but are null and void. Their validity depends on their being within the scope of the law-making power conferred by the superior authority, and as they have passed outside that scope they are invalid.... They ought not to be obeyed or in any way regarded by the citizens, because they are not law.”ROP 261.1
“Not merely Congress alone, but also Congress and the President conjoined [and the Supreme Court also-A. T. J.], are subject to the Constitution, and cannot move a step outside the circle which the Constitution has drawn around them. If they do, they transgress the law and exceed their powers. Such acts as they may do in excess of their powers are void, and may be, indeed ought to be, treated as void by the meanest citizen.”-Bryce, American Commonwealth, Vol. I, pp. 245, 246, 243, 36.ROP 261.2
It is impossible to demonstrate more clearly or to present more forcibly the truth that the constitutional right of the people is absolute, to disregard every Sunday law or other religious or ecclesiastical thing that is made a part of the common or any other law. And by this absolute constitutional right every person can, with courage, consistency, and righteousness, carry on uncompromising opposition to the religious despotism that is fastening itself upon the country.ROP 261.3