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What then were the meaning and scope of that supremacy which the framers of the Constitution designed to give to the acts of the government which they constructed?

In seeking an answer to this question, it is necessary to recur, as we have constantly been obliged to do, to the nature of the government which the Constitution was made to supersede. In that system, the experiment had been tried of a union of States, each possessed of a complete government of its own,

which was intended to combine their several energies for the common defence and the promotion of the general welfare. But this combined will of distinct communities, expressed through the action of a common agent, was wholly unable to overcome the adverse will of any of them expressed by another and separate agent, although the objects of the powers bestowed on the confederacy were carefully stated and sufficiently defined in a public compact. Thus, for example, the treaty-making power was expressly vested in the United States in Congress assembled; but when a treaty had been made, it depended entirely upon the separate pleasure of each State whether it should be executed. If the State govern

ceedings on them are not found in Mr. Madison's Minutes, or in the Journal of the Convention. The official record of their unanimous adoption was laid before Congress on the 28th of September, 1787, and it bears date September 17th. It recites the presence in Convention of all the States that attended


excepting New York, and in the place of that State stands "Mr. Hamilton from New York." This record precedes the official letter addressed by the Convention to Congress. See Journals of Congress for September 28, 1787, Vol. XII. pp. 149–165.

ments did not see fit to enforce its provisions upon their own citizens, or thought proper to act against them, there was no remedy, both because the Congress could not legislate to control individuals, and because there was no department clothed with authority to compel individuals to conform their conduct to the requirements of the treaty, and to disregard the opposing will of the State.

This defect was now to be supplied, by giving to the national authority, not only theoretically but practically, a supremacy over the authority of each State. But this was not to be done by annihilating the State governments. The government of every State was to be preserved; and so far as its original powers were not to be transferred to the general government, its authority over its own citizens and within its own territory must, from the nature of political sovereignty, be supreme. There were, therefore, to be two supreme powers in the same country, operating upon the same individuals, and both possessed of the general attributes of sovereignty. In what way, and in what sense, could one of them be made paramount over the other?

It is manifest that there cannot be two supreme powers in the same community, if both are to operate upon the same objects. But there is nothing in the nature of political sovereignty to prevent its powers from being distributed among different agents for different purposes. This is constantly seen under the same government, when its legislative, executive, and judicial powers are exercised through different.



officers; and in truth, when we come to the lawgiving power alone, as soon as we separate its objects into different classes, it is obvious that there may be several enacting authorities, and yet each may be supreme over the particular subject committed to it by the fundamental arrangements of society. Supreme laws, emanating from separate authorities, may and do act on different objects without clashing, or they may act on different parts of the same object with perfect harmony. They are inconsistent when they are aimed at each other, or at the same indivisible object. When this takes place, one or the other must yield; or, in other terms, one of them ceases to be supreme on the particular occasion. It was the purpose of the framers of the Constitution of the United States to provide a paramount rule, that would determine the occasions on which the author

ity of a State should cease to be supreme, leaving that of the United States unobstructed. Certain conditions were made necessary to the operation of this rule. The State law must conflict with some provision of the Constitution of the United States, or with a law of the United States enacted in pursuance of the constitutional authority of Congress, or with a treaty duly made by the authority of the Union. The operation of this rule constitutes the supremacy of the national government. It was supposed that, by a careful enumeration of the objects to which the national authority was to extend, there would be no

1 See a speech made by Hamilton in the Convention of New York. Works, II. 462.

uncertainty as to the occasions on which the rule was to apply; and as all other objects were to remain exclusively subject to the authority of the States within their respective territorial limits, the operation of the rule was carefully limited to those occasions.

The highly complex character of a system in which the duties and rights of the citizen are thus governed by distinct sovereignties, would seem to render the administration of the central power surrounded as it is by jealous and vigilant local governments an exceedingly difficult and delicate task. Its situation is without an exact parallel in any other country in the world. But it possesses the means which no government of a purely federal character has ever enjoyed, of an exact determination by itself of its own powers; because every conflict between its authority and the authority of a State may be made a judicial question, and as such is to be solved by the judicial department of the nation. This peculiar device has enabled the government of the United States to act successfully and safely. Without it, each State must have been left to determine for itself the boundaries between its own powers and those of the Union; and thus there might have been as many different determinations on the same question as the number of the States. At the same time, this very diversity of interpretation would have deprived the general government of all power to enforce, or even to have, an interpretation of its own. Such a confused and chaotic condition had marked the entire history of the Con

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federation. It was terminated with the existence of that political system, by the establishment of the rule which provides for the supremacy of the Constitution of the United States, and by making one final arbiter of all questions arising under it.

By means of this skilful arrangement, a government, in which the singular condition is found of separate duties prescribed to the citizen by two distinct sovereignties, has operated with success. That success is to be measured not wholly, or chiefly, by the diversities of opinion on constitutional questions that may from time to time prevail; nor by the means, aside from the Constitution, that may sometimes have been thought of for counteracting its declared interpretation; but by the practical efficiency with which the powers of the Union have operated, and the general readiness to acquiesce in the limitations given to those powers by the department in which their construction is vested. This general acquiescence has steadily increased, from the period when the government was founded until the present day; and it has now come to be well understood, that there is no alternative to take the place of a ready submission to the national will, as expressed by or under the Constitution interpreted by the proper national organ, excepting a resort to methods that lie wholly without the Constitution, and that would completely subvert the principles on which it was founded. For while it is true that the people of each State constitute the sovereign power by which the rights and duties of its

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