that the State has not the right, it may justly be replied, the power invading it, has not. It is a case unprovided for in the Constitution, and there is no common umpire. . . . [Emphasis supplied.]
There remains "no common umpire." By every rule of sound common sense and rightful Constitutional construction, it is the States themselves, parties to the compact, who should decide, in the last resort, if their compact has been violated. To leave such arbitraments to an agency of the Federal government, even as Jefferson and Madison made clear, is to substitute the discretion of the agent for the will of the principals; and it is to make the decision of a court, rather than the Constitution as agreed upon by the States, the supreme law of the land.
The Case of the Lands of Lord Fairfax
IN CHRONICLING some of the more spirited conflicts between State and Federal authority, necessarily one must place first emphasis upon the resistance by State legislatures and State governors. To this day lawmakers and chief executives speak in less inhibited fashion than judges, in protesting usurpation of power by the Supreme Court of the United States.
Yet it is important to note that the States frequently have interposed their sovereign powers through their own judiciary. As early as 1791, it was noted earlier, North Carolina's Supreme Court bluntly refused to comply with a Federal court order attempting to transfer a case from State to Federal jurisdiction.17
But it was in Pennsylvania, in 1798, that the position of the State judiciary was expounded at length for the first time. The expounder was one of the most remarkable jurists of the early years of our country, the redoubtable Judge Thomas McKean.