HKB
particular sphere of interest. When a state of the Union passes a law of this kind, the citizens who are injured by its execution can appeal to the federal courts.
[The remark of the author, that whenever the laws of the United States are attacked, or whenever they are resorted to in self-defence, the federal courts must be appealed to, which is more strongly expressed in the original, is erroneous and calculated to mislead on a point of some importance. By the grant of power to the courts of the United States to decide certain cases, the powers of the state courts are not suspended, but are exercised concurrently, subject to an appeal to the courts of the United States. But if the decision of the state court is in favor of the right, title, or privilege claimed under the constitution, a treaty, or under a law of congress, no appeal lies to the federal courts. The appeal is given only when the decision is against the claimant under the treaty or law. See 3d Cranch, 268. 1 Wheaton, 304.--American Editor.]
Thus the jurisdiction of the general courts extends not only to all the cases which arise under the laws of the Union, but also to those which arise under laws made by the several states in opposition to the constitution. The states are prohibited from making ex-post-facto laws in criminal cases; and any person condemned by virtue of a law of this kind can appeal to the judicial power of the Union. The states are likewise prohibited from making laws which may have a tendency to impair the obligations of contracts.[149] If a citizen thinks that an obligation of this kind is impaired by a law passed in his state, he may refuse to obey it, and may appeal to the federal courts.[150]
This provision appears to me to be the most serious attack upon the independence of the states. The rights awarded to the federal government for purposes of obvious national importance are definite and easily comprehensible; but those with which this last clause invests it are not either clearly appreciable or accurately defined. For there are vast numbers of political laws which influence the obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority.
[The fears of the author respecting the danger to the independence of the states of that provision of the constitution, which gives to the federal courts the authority of deciding when a state law impairs the obligation of a contract, are deemed quite unfounded. The citizens of every state have a deep interest in preserving the obligation of the contracts entered into by them in other states: indeed without such a controlling power, "commerce among several states" could not exist. The existence of this common arbiter is of the last importance to the continuance of the Union itself, for if there were no peaceable means of enforcing the obligations of contracts, independent of all state authority, the states themselves would inevitably come in collision in their efforts to protect their respective citizens from the consequences of the legislation of another state.
M. De Tocqueville's observation, that the rights with which the clause in question invests the federal government "are not clearly appreciable or accurately defined," proceeds upon a mistaken view of the clause itself. It relates to the obligation of a contract, and forbids any act by which that obligation is impaired. To American lawyers, this seems to be as precise and definite as any rule can be made by human language. The distinction between the right to the fruits of a contract, and the time, tribunal, and manner, in which that right is to be enforced, seems very palpable. At all events, since the decision of the supreme court of the United States in those cases in which this clause has been discussed, no difficulty is found, practically, in understanding the exact limits of the prohibition.