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emphasis the plain intent of members of the Convention until the culmination was reached in section 2, Article VI., and its twin text, section 2, Article III. The imperative need of some comprehensive check upon State action if a government were to be founded, the paramount importance of the creation of a tribunal to construe the Constitution, the laws, and the treaties made by the United States, and thus to avoid thirteen varying and divergent interpretations, was obvious, and the Convention would have failed to effect one of its prime objects had this result not been achieved. Its records show that it discarded the proposed legislative negative after due reflection and discussion, and that it substituted the broad judicial power after similar intelligent study.
EVOLUTION OF THE “SUPREME LAW" CLAUSE FROM THE
The precise language of the Martin resolution was referred to the committee of detail. In that committee it was changed to read as follows:
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 notwithstanding."
The report of the committee of detail was considered in the Convention on August 6th, when the foregoing paragraph was read. The report was taken up article by article. August 23d, Rutledge moved to amend the supreme law article as reported by the committee of detail so that it should read as follows:
This constitution and the laws of the United States made in pursuance thereof, 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 constitutions or laws of the several states to the contrary notwithstanding."
This was agreed to unanimously.
August 25th, Madison (Morris seconding) moved to add the words “made or which shall be" after “treaties,” in order, he said,
to obviate all doubt concerning the force of treaties preexisting, by making the words "all treaties made" to refer to them, as the words inserted would refer to future treaties. 2
In this form the article went to the committee of style where, on September 12th, it was changed as follows: For the words supreme law of the several states" were substituted the words "supreme law of the land,” the words “and of their citizens and inhabitants” being omitted. The sentence “and the judges in the several states shall be bound thereby in
* Farrand, Record of the Convention, ii., 389. a Id., ii., 417.
their decisions” was altered to read “and the judges in every state shall be bound thereby," the final paragraph remaining unaltered. September 14th, the report of the committee of style, or committee on revision, was considered by the Convention. Its report was approved. These changes made the language of the clause exactly what it is in the present Constitution.”
EVOLUTION OF THE JUDICIAL SYSTEM
The clause making the judicial power co-extensive with the Constitution was not developed in its present form until late in the sessions of the Convention. At first the judicial power was to extend only to “all cases arising under laws passed by the legislature of the United States."'3 On August 27th, Dr. Johnson of Connecticut moved to insert the words “this constitution and the" before the word "laws," thus bringing within the cognizance of the Federal Courts all cases arising under the Constitution and acts of Congress. Madison doubted whether it was not going too far to extend the jurisdiction generally to cases arising under the Constitution and whether it ought not to be limited to cases of a judiciary nature, for, said he, “the right of expounding the Constitution in cases not of this nature ought not to be given to that department. Madison's suggestion was valid. There are political cases not within the cognizance of the courts. Dr. Johnson's motion was, however, agreed to nem. con., "it being generally supposed that the jurisdiction given was constructively limited to cases of a judiciary nature. At Rutledge's instance, the words "passed by the legislature” were struck out, and after the words “U. S.” were inserted, nem. con., the words "and treaties made or which shall be made under their authority”—which, as the record said, was "conformably to a preceding amendment in another place.”: This refers to the amendment placing these identical words in the supreme law clause. To recapitulate
Farrand, Record of the Convention, ii., 603. 2 Id., 610, 624. 3 Id., ii., 186.
4 Id., ii., 428.
according to the leaders in the Convention the essential thing was a government with greater power than that of the existing Confederation and with final authority as to treaties. The vitally important question was how to reconcile legislation by the States and legislation by the Union where they might be antagonistic. To give a veto power to the national legislature would not answer, even were that veto to be restricted, as had been proposed by Charles Pinckney, to laws which should appear to be improper. The expedient of a Council of Revision involved an unwise commingling of judicial and legislative power, as the experience of New York State had already shown. At this stage the Martin resolution was offered and unanimously adopted. It proposed almost the identical thing that had been urged upon the States by Congress, in the preceding April. The acts of the Congress of the United States and the treaties made by it were to be recognized as the supreme law and the judges of the State courts were so to decide, whatever
Farrand, Record of the Convention, ii., 430, 431.
State legislatures might enact to the contrary. This all-important resolution was never rescinded. Later the Convention perceived that in order to make the “supreme law" principle vital two additions were necessary: (1) The Constitution before all else must be deemed the supreme law; (2) Inasmuch as the State judiciary might fail in allegiance to that supreme law, a national judicial system was essential as the final authority upon all laws of the States and all acts of Congress.
In the supreme law and judiciary clauses the members of the Federal Convention created a perfect mechanism for the accomplishment of a particular end without friction between the States and the general government. Irritation, they were well aware, would continually be excited if a direct negative were given to Congress upon State legislation. After rejecting the direct negative and the proposal of a Council of Revision, they decided upon the plan of which the seminal idea is found in the Martin resolution. Despite all this, are we to believe that the Convention did not know what it was doing?
The purpose of this exposition has been to establish that prior to the formation of the existing Union, the State judiciary claimed and employed the power of adjudging laws repugnant to a State constitution to be null and void; that although this right of the judges was challenged in some instances, their conclusions were generally accepted; that these decisions were known to the members of the Federal Convention; that the existence of such a power was assumed in the