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The same restriction, with the like qualification of the consent of Congress, was applied to the keeping of troops or ships of war in time of peace, entering into agreements or compacts with another State or a foreign power, or engaging in war, unless actually invaded or in such imminent danger as will not admit of delay.'
1 Elliot, V. 548.
REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.— SUPREMACY OF THE NATIONAL GOVERNMENT. DEFINITION AND PUNISHMENT OF TREASON.
AMONG the resolutions sent to the committee, there were four which had reference to the supremacy of the government of the United States. They declared that it ought to consist of a supreme legislative, executive, and judiciary; that its laws and treaties should be the supreme law of the several States, so far as they related to the States or their citizens and inhabitants, and that the judiciaries of the States should be bound by them, even against their own laws; -that the officers of the States, as well as of the United States, should be bound by oath to support the Articles of Union; — and that the question of their adoption should be submitted to assemblies of representatives to be expressly chosen by the people of each State under the recommendation of its legislature.1
In order to give effect to these precise and stringent directions, the committee of detail introduced into their draft of a constitution a preamble; two
1 These were the 1st, 7th, 20th, and 21st of the resolutions. Ante, p. 190 et seq., note.
articles asserting and providing for the supremacy of the national government; a provision for the oath of officers; and a declaration of the mode in which the instrument was intended to be ratified.
The preamble of the Constitution, as originally reported by this committee, differed materially from that subsequently framed and adopted. It spoke in the name of the people of the States of New Hampshire, Massachusetts, &c., who were said "to ordain, declare, and establish this Constitution for the government of ourselves and our posterity"; and it stated no special motives for its establishment. In this form it was unanimously adopted on the 7th of August. But when, at a subsequent period, the instrument was sent to another committee, whose duty it was to revise its style and arrangement, this phraseology was changed, and the preamble was made to speak in the name of the people of the United States, and to declare the purposes for which they ordained and established the Constitution.1 The language thus employed in the preamble has justly been considered as having an important connection with the provisions made for the ratification of the instrument to which it was prefixed.
The articles specially designed to assert and carry out the supremacy of the national government, as they came from the committee, embodied the resolu
1 "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote
the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
tions on the same subject which had passed the Convention. The only material addition consisted in the qualification, that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitution. Subsequently, the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States, the supreme law of the land, binding upon all judicial officers.1
It is a remarkable circumstance, that this provision was originally proposed by a very earnest advocate of the rights of the States, Luther Martin. His design, however, was to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the States contravening in their opinion the Articles of Union, or the treaties subsisting under the authority of the Union. The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a State law, supposed to be in conflict with the Constitution, laws, or treaties of the Union, should be inoperative or valid. By extending the obligation to regard the requirements of the national Constitution and laws to the judges of the State tribunals, their supremacy in all the judicatures of the country was secured. This obligation was
1 The Constitution, Art. VI. (See Appendix.)
July 17. Elliot, V. 322.
enforced by the oath or affirmation to support the Constitution of the United States; and, as we shall see hereafter, lest this security should fail, the final determination of questions of this kind was drawn to the national judiciary, even when they might have originated in a State tribunal.2
1 The Constitution. Art. VI. 2 Ibid. Art. III. § 2.
3 Articles XXI., XXII., XXIII. of their draft. Elliot, V. 381.
Closely connected in purpose with these careful provisions was the mode in which the Constitution was to be ratified. The committtee of detail had made this the subject of certain articles in the Constitution itself.3 But the committee of revision afterwards presented certain resolutions in the place of two of those articles, which were adopted by the Convention after the Constitution had been signed; leaving in the instrument itself nothing but the article which determined the number of States whose adoption should be sufficient for establishing it.* These resolutions pursued substantially the mode previously agreed upon, of a transmission of the instrument to Congress, a recommendation by the State legislatures to the people to institute representative assemblies to consider and decide on its adoption, and a notice of their action to Congress by each State assembly so adopting it. The purpose of this form of proceeding, so far as it was connected with the primary authority by which the Constitution was to be enacted, has been already explained.5
4 The Constitution, Art. VII. 5 Ante, p. 177, et seq. The resolutions may be found in Elliot, V. 541 (Sept. 13). But the pro