[Sidenote: Serious opposition to the Lowndes bill.]
Mr. Sergeant, the spokesman of the opposition to Mr. Lowndes' report, met these propositions with the counter-propositions, that a Territory becomes a Commonwealth of the Union only by a Congressional Act admitting it to that status; that no other kind of a Commonwealth than a Commonwealth in the Union is known to the political { 97} system of the United States; that all the acts done by Congress and by the people resident within a Territory before the Congressional Act of admission are nothing more than preliminaries, and that a Territory remains a Territory until the passage of this latter act; that the provision in the Missouri instrument in regard to the exclusion of mulattoes and free negroes was repugnant to that clause in the Constitution of the United States which guarantees to the citizens of any Commonwealth the privileges and immunities of citizens in every other Commonwealth of the Union into which they may go; and that Congress, not the Judiciary, is the body which should determine whether such repugnance exists, and, if so, correct it.
There is no doubt that, from the point of view of a correct political logic, the opponents of Mr. Lowndes' propositions in regard to the making of a Commonwealth of the Union stood upon the firmer ground, despite the fact that the precedents did not sustain fully their claims. As a fact, Congress had been guilty of such irregularities in the admission of some of the Commonwealths as to give much support to the notion that there could be a Commonwealth in the political system of the United States before its formal admission into the Union. But the argument is unanswerable, that a Commonwealth not in the Union is a foreign state; that in order that a Territory shall attain this latter position and status its constitutional right to secede from the United States must be recognized, which is absurd; and that, therefore, the Congressional Act of admission is what makes a Territory of the Union into a Commonwealth of the Union, the only kind of a Commonwealth known to the political system of the United States.
They also stood upon the firmer ground in holding { 98} that it is the duty of Congress to scrutinize closely the measures proposed for enactment by it from the point of view of their constitutionality, and to pass no act, of the constitutionality of which it is not reasonably convinced, under the pretext that the Judiciary is the proper body to correct the usurpation. The members of Congress take the same oath to uphold the Constitution as the judges do. The revisory powers of the Judiciary over the acts of Congress were not given in order to excuse the Congress from exercising its preliminary judgment upon the constitutionality of its own acts. They were given simply to correct errors in judgment.