HKB
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.
The next observation of the author, that "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," is rather obscure. Is it intended that political laws may be passed by the central authority, influencing the obligation of a contract, and thus the contracts themselves be destroyed? The answer to this would be, that the question would not arise under the clause forbidding laws impairing the obligation of contracts, for that clause applies only to the states and not to the federal government.
If it be intended, that the states may find it necessary to pass political laws, which affect contracts, and that under the pretence of vindicating the obligation of contracts, the central authority may make aggressions on the states and annul their political laws:--the answer is, that the motive to the adoption of the clause was to reach laws of every description, political as well as all others, and that it was the abuse by the states of what may be called political laws, viz.: acts confiscating demands of foreign creditors, that gave rise to the prohibition. The settled doctrine now is, that states may pass laws in respect to the making of contracts, may prescribe what contracts shall be made, and how, but that they cannot impair any that are already made.
The writer of this note is unwilling to dismiss the subject, without remarking upon what he must think a fundamental error of the author, which is exhibited in the passage commented on, as well as in other passages:--and that is, in supposing the judiciary of the United States, and particularly the supreme court, to be a part of the political federal government, and as the ready instrument to execute its designs upon the state authorities. Although the judges are in form commissioned by the United States, yet, in fact, they are appointed by the delegates of the state, in the senate of the United States, concurrently with, and acting upon, the nomination of the president. If the legislature of each state in the Union were to elect a judge of the supreme court, he would not be less a political officer of the United States than he now is. In truth, the judiciary have no political duties to perform; they are arbiters chosen by the federal and state governments, jointly, and when appointed, as independent of the one as of the other. They cannot be removed without the consent of the states represented in the senate, and they can be removed without the consent of the president, and against his wishes. Such is the theory of the constitution. And it has been felt practically, in the rejection by the senate of persons nominated as judges, by a president of the same political party with a majority of the senators. Two instances of this kind occurred during the administration of Mr. Jefferson.
If it be alleged that they are exposed to the influence of the executive of the United States, by the expectation of offices in his gift, the answer is, that judges of state courts are equally exposed to the same influence--that all state officers, from the highest to the lowest, are in the same predicament; and that this circumstance does not, therefore, deprive them of the character of impartial and independent arbiters.