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Confederation." This can scarcely be deemed more than a solemn declaration of what the public law of nations recognizes as a moral obligation, binding on all nations, notwithstanding any changes in their forms of Government. It was important, however, to clear away all possible doubts, and to satisfy and quiet the public creditors, who might fear, that their just claims upon the Confederation might be disregarded or denied.


§ 422. The next clause is, "This 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, any thing in the Constitution, or laws of any State, to the contrary notwithstanding. The propriety of this power results from the very nature of the Constitution. To establish a National Government, and to affirm, that it shall have certain powers: and yet, that in the exercise of those powers it shall not be supreme, but controllable by any State in the Union, would be a solecism, so mischievous, and so indefensible, that the scheme could never be attributed to the framers of the Constitution, without manifestly impeaching their wisdom, as well as their good faith. The want of such an effective practical supremacy was a vital defect in the Confederation; and furnished the most solid reason for abolishing it. It would be an idle mockery, to give pow ers to Congress, and yet at the same time to declare, that those powers might be suspended or annihilated, at the will of a single State; that the will of twenty-five States should be surrendered to the will of one. A government of such a nature would be as unworthy of public confidence, as it would be incapable of affording public protection, or private happiness.

§ 423. In regard to treaties, there is equal reason, why they should be held, when made, to be the supreme law of the land. It is to be considered, that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed, and enforced, no foreign nation would consent to negotiate

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with as; or if it did, any want of strict fidelity, on our part, in the discharge of the treaty stipulations, would be visited by reprisals, or by war. It is, therefore, indispensable, that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. This will not prevent them from being cancelled, or abrogated, by the nation,. upon grave and suitable occasions; for it will not be disputed, that they are subject to the legislative power, and may be repealed, like other laws, at its pleasure; or they may be varied by new treaties. Still, while they do subsist, they ought to have a positive binding efficacy, as laws, upon all the States, and all the citizens of the States. The peace of the nation, and its good faith, and moral dignity, indispensably require, that all State laws should be subjected to their supremacy. The difference between considering them as laws, and considering them as executory, or executed contracts, is exceedingly important in the actual administration of public justice. If they are supremne laws, courts of justice will enforce them directly in all cases, to which they can be judicially applied, in opposition to all State laws, as we all know was done in the case of the British debts, secured by the treaty of 1783, after the Constitution was adopted. If they are deemed but solemn compacts, promissory in their nature and obligation, courts of justice may be embarrassed in enforcing them, and may be compelled to leave the redress to be administered through other departments of the Government. It is notorious, that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the States under the Confederation. They were deemed by the States, not as laws, but like requisitions, of a mere moral obligation, and dependent upon the good will of the States for their execution. Congress, indeed, remonstrated against this construction, as unfounded in principle and justice. But their voice was not heard. Power and right were separated; the argument was all on one side; but the power was on the other. It was probably to obviate this very difficulty, that this clause was inserted in the Constitution:

Aird would redound to the immortal honor of its authors, if it done no more, than thus to bring treaties within the sanctuary of justice, as laws of supreme obligation. There are, indeed, still cases, in which courts of justice can administer no effectual redress; for, when the terms of a stipulation import a contract, or when either of the parties engages to perform a particular act, the treaty addresses itself to the political, and not to the judicial, department; and the legislature must execute the contract, before it can become a rule for the courts.

§ 424. From this supremacy of the Constitution, and laws, and treaties, of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by Congress, or by a State legislature, void. So, in like manner, the same duty arises, whenever any other department of the National or State governments exceeds its constitutional functions. But the Judiciary of the United States has no general jurisdiction to declare acts of the several States void, unless they are repugnant to the Constitution of the United States, notwithstanding they are repugnant to the State Constitution. Such a power belongs to it only, wher it sits to administer the local law of a State, and acts exactly, as a State tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, State as well as National, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy.


Oath of Office.-Religious Test.--Ratification of the


§ 425 THE next clause is, "The Senators and Representatives before mentioned, (that is, in Congress,) and the members of the several State Legislatures, and all executive and judicial officers, both of the United States

and of the several States, shall be bound by oath or affir mation to support this Constitution. But no religious test shall ever be required, as a qualification to any office or public trust under the United States."

§ 426. That all those, who are intrusted with the execution of the powers of the National Government, should be bound, by some solemn obligation, to the due execution of the trusts reposed in them, and to support the Constitution, would seem to be a proposition too clear, to render any reasoning necessary in support of it. It results from the plain right of society, to require some guarantee from every officer, that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those, who feel a deep sense of accountability to a Supreme being. If, in the ordinary administration of justice, in cases of private rights, or personal claims, oaths are required of those, who try the cause, as well as of those, who give testimony, to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such, as may concern the welfare and safety of the whole community. But there are known denominations of men, who are conscientiously scrupulous of taking oaths, (among which is that pure and distinguished sect of Christians, commonly called Friends, or Quakers,) and, therefore, to prevent any unjustifiable exclusion from office, the Constitution has permitted a solemn affirmation to be made, instead of an oath, and as its equivalent.

§ 427. But it may not appear to all persons quite so clear, why the officers of the State governments should be equally bound to take a like oath or affirmation; and it has been even suggested, that there is no more reason to require that, than to require, that all of the United States officers should tak an oath or affirmation to support the State Constitutions. A moment's reflection will show sufficient reasons for the requisition of it in the one case, and the omission of it in the other. The members and officers of the National Government have no agency in carrying into effect the State Constitutions.


inembers and officers of the State governments have an essential agency in giving effect to the National Constitu tion. The election of the President and the Senate will depend, in all cases, upon the Legislatures of the several States; and, in many cases, the election of the House of Representatives may be affected by their agency. The judges of the State courts will frequently be called upon to decide upon the Constitution, and laws, and treaties, of the United States; and upon rights and claims growing out of them. Decisions ought to be, as far as possible, uniform, and uniformity of obligation will greatly tend to such a result. The executive authority of the several States may be often called upon to exert powers, or to allow rights, given by the Constitution, as in filling vacancies in the Senate, during the recess of the Legislature; in issuing writs of election, to fill vacancies in the House of Representatives; in officering the militia, and giving effect to laws for calling them out; and in the surrender of fugitives from justice. These, and many other functions, devolving on the State authorities, render it highly important, that they should be under a solemn obligation to obey the Constitution. In common sense, there can be no wellfounded objection to it. There may be serious evils growing out of an opposite course.

§ 428. The remaining part of the clause declares, that "no religious test shall ever be required, as a qualification to any office or public trust under the United States.' This clause is recommended by its tendency to satisfy the minds of many delicate and scrupulous persons, who entertain great repugnance to religious tests, as a qualification for civil power or honor. But it has a higher aim in the Constitution. It is designed to cut off every pretence of an alliance between the Church and the State, in the administration of the National Government. The American people were too well read in the history of other countries, and had suffered too much in their colonial state, not to dread the abuses of authority resulting from religious bigotry, intolerance, and persecution. They knew but too well, that no sect could be safely trusted with power on such a subject; for all had in turns wielded



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