Imatges de pàgina
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framed for ages to come, and designed to approach immortality as nearly as human institutions can attain to it. Its course cannot always be tranquil: experience as well as reason teaches us that it is exposed to storms and tempests.” The same lesson had been taught to its framers under the Confederation, and had confirmed the suggestions of their own experience, and induced them to devise a new form of government for themselves and their posterity. They accordingly provided it, as far as its nature would permit, with the means of self-preservation from the perils it was destined to encounter. They well understood that no government should be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those of ordinary occurrence. They were aware that courts of justice were the means most usually employed; and under the full pressure of the evils which had arisen from the want of such a power under the Confederation, they created in the new system a distinct and independent judicial department; they conferred on it the power of construing the Constitution and laws of the Union, in the last resort, in all cases, and of preserving them from all violation from any quarter, so far as judicial decisions could preserve them; and they conferred on the chief executive magistrate the powers necessary to carry into effect the judgments and decrees of the courts, either directly in the Constitution itself, or indirectly, by vesting in the legislative department authority to do so.

IV. The next provision for giving effect to the powers of the General Government is the decla

ration that the “Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every state shall be bound thereby, anything in the Constitution and laws of any state to the contrary notwithstanding."

Without this provision the Constitution would have been evidently and radically defective. To be fully sensible of this, we need only suppose, with the authors of “The Federalist,” that the supremacy of the state constitutions had been left complete by a saving clause in their favour. In the first place, as those constitutions invested the state legislatures with absolute sovereignty in all cases, not excepted by the Articles of Confederation, all the authorities contained in the present Constitution, so far as they exceed those enumerated in the Confederation, would have been annulled, and the new Congress would have been reduced to the same impotent condition as their predecessors, which it was the avowed and leading design of the Convention in this particular to amend. In the next place, as the constitutions of some of the states did not expressly and fully recognise the powers even of the former confederacy, an express saving of such constitutions would in those states have brought in question every power contained in the new Constitution. In the third place, as the constitutions of the states differ much from each other, it might have happened that a treaty, or national law of great importance to the states, would interfere with some, and not with others, of the state constitutions, and would, consequently, have been valid in some states, and not in others. In the last place, there would have been exhibited a system (such as some modern theorists and political visionaries have conceived the Federal Constitution to be), founded on an inversion of the fundamental principles of all government, in which the authority of the whole society would be subordinate to that of the parts, the head un. der the direction of each of the members.

But the provision in question marks the characteristic distinctions between the Government of the Union and the governments of the states; and when the Constitution or laws of a state have been deemed repugnant to, or incompatible with, the Federal Constitution, with laws made in pursuance of it, or with treaties negotiated under its authority, the validity of the former has been inquired into and decided upon in a variety of cases; and in every instance where the repugnance existed, súch state constitutions or laws, or such parts of them as were incompatible with the former, have been, as we have seen, judicially abrogated and annulled. In the important case of the Bank of the United States, referred to in the last lecture,* it was declared that the law of Maryland imposing a tax on the Bank was unconstitutional and void, on the ground that the state governments have no right to tax any of the constitutional means employed by the Government of the Union to execute its constitutional powers; nor, by taxation or otherwise, to retard, impede, burden, or in any manner control the operation of constitutional laws enacted by Congress, to carry into effect the powers vested in the National Government.

* 4 Wheaton, 316.

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It was contended, on that occasion, on behalf of the state authority, that the powers of the General Government were delegated by the state governments, and that the Federal authority must be exercised in subordination to the states, who alone possessed supreme dominion. But the impossibility of sustaining such a proposition was fully and clearly demonstrated. It was admitted, indeed, that the Convention that framed the Constitution was elected by the state legislatures; but that instrument, when it came from the hands of the Convention, was a mere proposal, without actual obligation, or any pretension to it. It was reported to the then existing Congress, to “ be submitted to a Convention of delegates to be chosen in each state by the people thereof, under the recommendation of its Legislature, for their assent and ratification.” This mode of proceeding was adopted, and the proposed Constitution was accordingly submitted to the people, who acted upon it in the only manner in which they can'act effectually and wisely on such subjects, by assembling in conventions. They assembled in their respective states, not merely from convenience, but from necessity. There existed no authority under the Confederation, as now exists under the Constitution, for calling a general convention; and if such authority had existed, that mode would not have been the proper one, in a case where the people were, in effect, to pass upon virtual amendments and partial abrogations of their state constitutions. They assembled and acted, therefore, in their several states, the people of each state thus exercising a separate and independent voice in the adoption of the Federal Constitution. But the measure they adopted did

not on that account cease to be the act of the people themselves, or become the measure of the state governments.

From these state conventions, then, the Constitution of the United States owes its whole authority. The instrument submitted to them purports on the face of it to proceed from “the people of the United States," to be “ordained and es

ablished” in their name; and is declared to be thus ordained and established “in order to form a more perfect union, to establish justice, ensure domestic tranquillity, and secure the blessings of liberty to them and their posterity.” Now, if the people of the United States had never before acquired a common character, they assumed it then. The preamble to the Federal Constitution, containing these declarations, is an essential and necessary part of that instrument; and it not only enumerates the objects for which it was formed, but designates the parties by whom, and by whose authority alone, it was “ ordained and established.” The assent of the states in their sovereign capacities is implied, if not expressed, in calling their conventions, and thus submitting the new scheme of government to the people. But the people of each state were at perfect liberty to accept or reject it, and their act was final. The Constitution required not the affirmance of the state governments, nor could it be negatived by their act; but, when ratified by the people, it became of perfect obligation, and bound the states.

It has, to be sure, been said that the people had already surrendered all their powers to the state governments, and had nothing more to give. But the question whether the people may

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