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essary, to enforce and compel an obedience to such acts, or an observance of such treaties.''8
On the 17th of July, Mr. Luther Martin moved :
“That the Legislative acts of the United States made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the Judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding.''9
This resolution was unanimously agreed to, and was referred to the Committee of Detail.10 That committee referred the subject back to the Convention in the following form:
“The acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the several States, and of their citizens and inhabitants; and the Judges in the several States shall be bound thereby in their decisions, anything in the Constitution or laws of the several States to the contrary notwithstand
In the Convention Mr. Rutledge moved to amend this resolution to read:
“This Constitution, and the laws of the United States made in pursuance thereof, and all the treaties made under the authority of the United States, shall be the supreme law of the several States, and of their citizens and inhabitants; and the Judges of the several States shall be bound thereby in their decisions, anything in the Constitution or laws of the several States to the contrary notwithstanding."12
This amendment which enlarged the provision so as to include the Constitution, was accepted without opposition.
Later, on motion of Mr. Madison, seconded by Mr.
8 Journal, 166. 9 Journal, 364. 10 Journal, 445. 11 Journal, 455. 12 Journal, 593.
Gouverneur Morris, the amendment was reconsidered and the words “or which shall be made” were inserted after the words “all treaties made." Mr. Madison, writing on this subject, said:
“The indiscreet zeal of the adversaries to the Constitution has betrayed them into an attack on this part of it also, without which it would have been evidently and radically defective. To be fully sensible of this, we need only suppose for a moment that the supremacy of the State Constitutions had been left complete by a saving clause in their favor.
“In the first place, as these constitutions invest the State Legislatures with absolute sovereignty, in all cases not excepted by the existing Articles of Confederation, all the authorities contained in the proposed 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 with their predecessors.
“In the next place, as the constitutions of some of the States do not even expressly and fully recognize the existing powers of the Confederacy, an express saving of the supremacy of the former, would in such States, have brought into question every power contained in the proposed Constitution.
“In the third place, as the Constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other Constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others.
“In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members."'13
This clause makes the supreme law of the land, to consist, first, of the Constitution; second, of the laws which shall be made in pursuance of the Constitution; third, of all treaties made, under the authority of the United States.
13 The Federalist, No. 44.
There has been some question why this clause was inserted in the Constitution. It is probable that the supremacy of the Constitution and the laws made in pursuance thereof and treaties made under the authority of the United States, would have possessed the same efficacy without this clause. A Constitution is always the supreme law of the land for which it is made. Laws themselves are supreme, for they are the rules which control and guide the conduct of the citizens or inhabitants of the land. It is only those laws which are passed in pursuance of the Constitution which are supreme. If they fail when judged by this test they do not become the supreme law of the land.
Relative to treaties there was doubtless a special reason why they were included in this clause, and made by it part of the supreme law of the land. Prior to the adoption of the Constitution the treaty stipulations which were entered into were shamefully disregarded by the individual States. To such an extent was this indulged in that Congress, earnestly protested against it by a letter addressed to the respective States, 14
14 The letter was in part as follows:
April 13, 1787. “Sir: Our secretary for foreign affairs has transmitted to you copies of a letter to him, from our minister at the court of London, of the 4th day of March, 1786, and of the papers mentioned to have been enclosed with it.
“We have deliberately and dispassionately examined and considered the several facts and matters urged by Britain, as infractions of the treaty of peace on the part of America, and we regret that in some of the States too little attention appears to have been paid to the public faith pledged by that treaty.
“Not only the obvious dictates of religion, morality and national honor, but also the first principles of good policy, demand a candid and punctual compliance with engagements constitutionally and fairly made.
"Our national constitution having committed to us the management of the national concerns with foreign States and powers, it is our duty to take care that all the rights which they ought to enjoy within our jurisdiction by the laws of nations and the faith of treaties, remain inviolate. And it is also our duty to provide that the essential interests and peace of the whole confederacy, be not impaired or enThe purpose of the framers of the Constitution in making treaties a part of the supreme law of the land and pledging the national faith to their maintenance and binding the judiciary of the States to their observance was, that under the new government the provisions of our treaties should be faithfully carried out; and it cannot be questioned that inserting this clause in the Constitution greatly emphasized its importance, for it is a positive declaration by the Constitution, that the Constitution, the laws made in pursuance thereof and all treaties made under the authority of the United States shall be the supreme law of the land. The Constitution being the supreme law of the land no act of Congress can be binding or valid which is not authorized by it.15
Commenting upon this clause Mr. Hamilton observed: "It is said that the laws of the Union are to be the supreme law of the land.
What inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A law, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is pre
dangered by deviations from the line of public faith, into which any of its members may from whatever cause be unadvisedly drawn.
"Be pleased, sir, to lay this letter before the legislature of your State, without delay. We flatter ourselves they will concur with us in opinion, that candour and justice are as necessary to true policy as they are to sound morality, and that the most honorable way of delivering ourselves from the embarrassment of mistakes, is fairly to correct them. It certainly is time that all doubts respecting the public faith be removed, and that all questions and differences between us and Great Britain be amicably and finally settled. The States are informed of the reasons why his Britannic Majesty still continues to occupy the frontier posts, which by the treaty he agreed to evacuate, and we have the strongest assurances that an exact compliance with the treaty on our part, shall be followed by a punctual performance of it on the part of Great Britain.
"It is important that the several legislatures should, as soon as possible, take these matters into consideration and we request the favor of you to transmit to us an authenticated copy of such acts and proceedings of the legislature of your State, as may take place on the subject and in pursuance of this letter. "By order of Congress,
“ARTHUR ST. CLAIR, President." 12 Journal of Congress, 32, 36. 15 United States v. Germaine, 99 U. S. 510.
scribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government; which is only another word for political power and supremacy. But it will not follow from this doctrine, that acts of the larger society, which are
are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive, that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Federal Government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood, though it had not been expressed."'16
This clause met with much opposition when the Constitution was submitted to the States for ratification. In the North Carolina Convention it was asserted that it would sweep off all the Constitutions of the States; that it was a total repeal of every act and Constitution of the States and that as the judges are sworn to uphold it, it will produce an abolition of the State governments, and will be destructive of every law which will come in competition with the laws of the United States.17
It would be useless to enter upon any lengthy discussion of this provision. No clause of the Constitution is more frequently referred to and favorably commented upon
18 The Federalist, No. 33. 17 4 Elliot, 179, 180.