framers of the Constitution were unable to make any provision which should protect it against a general combination of the states or of the people for its destruction, and, conscious of this inability, they did not make the attempt. But they were able to provide against the operation of measures adopted in any one state, the tendency of which might be to arrest the execution of the laws of the Union; and this they have done. To this it may be added, that they provided against a dissolution of the Union, and against any direct or indirect attempts on the part of a state to withdraw from the Union, not only by this provision requiring all officers, civil and military, of the state governments to take an oath to support the Federal Constitution, but by creating distinct executive and judicial departments, and by adopting various other provisions, operating immediately and individually upon the people of the several states. Thus the Constitution exacts no pledge from the states to maintain its inviolability, but makes its preservation depend on individual obligation and duty. It permits no man to sit in the Legislature of a state who is not first sworn to support the Constitution of the United States. From the obligation of this oath no state power can discharge them. All the members of all the state legislatures are as religiously bound to support the Federal Constitution as they are to support those of their own state constitutions, and as solemnly sworn to do so as the members of Congress. No member of a state legislature can refuse to proceed at the appointed time to elect senators in Congress, or to provide for the choice of electors of President and Vice-president, any more than the members of the Senate of the Uni ted States can refuse, when the appointed time arrives, to meet the members of the other house to witness the counting of the votes given by the electors for those officers, and ascertain who are chosen. In either case, the duty binds with equal strength the conscience of the individual, and is imposed on every member by an oath in the same words. It cannot, therefore, be a matter of discretion with the states whether they will continue the government or break it up, by refusing to elect senators and appoint electors. Nor can the members of their legislatures neglect or evade those duties, when the times arrive for their performance, without such a violation of their oaths and duties as would destroy any other government. III. Among the provisions for giving efficacy to the Federal legislative powers may be included those specially vested in the executive and judicial departments, and especially the provision extending the jurisdiction of the Federal Courts to all cases arising under the Constitution of the United States. But these powers have al ready been subjected to particular examination in our review of the structure and organization of the government, and do not, perhaps, require any farther elucidation. It may, however, be as well here to observe, that the provision last specified in effect creates in the Supreme Court of the United States a COMMON ARBITER in all cases of collision between the power and authority of the Union and of the several states. Such collisions, we have seen, have already taken place, in times, too, of no extraordinary commotion, and have hitherto been happily adjusted. "But a constitution," said its great judicial oracle, "is 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 under 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, such 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 Govern ment. * 4 Wheaton, 316. |