§ 1826. THE first clause of the sixth article of the constitution
debts contracted, and engagements entered into before the adoption of this
constitution, shall be as valid against the United States, under this
constitution, as under the confederation."1
§ 1827. This can be considered in no other light, than as a
proposition, resulting from the law of nations, and the moral obligations
of society. Nothing is more clear upon reason or general law, than the
doctrine, that revolutions in government have, or rather ought to have, no
effect whatsoever upon private rights, and contracts, or upon the public
obligations of nations.2 It results from the first principles of moral
duty, and responsibility, deducible from the law of nature, and applied to
the intercourse and social relations of nations.3 A change in the
political form of a society ought to have no power to produce a dissolution
of any of its moral obligations.4
§ 1828. This declaration was probably inserted in the
only as a solemn recognition of the obligations of the government resulting
1 See Journ. of Convention, 291.
2 See Jackson v. Luun, 3 John. Cas. 109; Kelly v. Harrison, 2 John. Cas.
29; Terrett v. Taylor, 9 Cranch, 50.
3 See Rutherforth, Inst. B. 2, ch. 9, § 1, 2; Id. ch. 10, § 14;
Prelim. Dis. § 2, 9; B. 2, ch. 1, § 1, ch. 5, § 64, ch.
14,§ 214, 215,
4 The Federalist, No. 43; Rutherforth, Inst. B. 2, ch. 10, § 14, 15;
Grotius, B. 2, ch. 9, § 8, 9.
692 CONSTITUTION OF THE U. STATES. [BOOK III.
tional law; but for the more complete satisfaction and security of the
public creditors, foreign as well as domestic. The articles of
confederation contained a similar stipulation in respect to the bills of
credit emitted, monies borrowed, and debts contracted, by or under the
authority of congress, before the ratification of the confederation.1
§ 1829. Reasonable as this provision seems to be, it did
not wholly escape
the animadversions of that critical spirit, which was perpetually on the
search to detect defects, and to disparage the merits of the constitution.
It was said, that the validity of all engagements made to, as well as made
by, the United States, ought to have been expressly asserted. It is
surprising, that the authors of such an objection should have overlooked
the obvious consideration, that, as all engagements are in their nature
reciprocal, an assertion of their validity on one side, necessarily
involves their validity on the other; and that, as this article is but
declaratory, the establishment of it in debts entered into by the
government, unavoidably included a recognition of it in engagements with
the government.2 The shorter and plainer answer is that pronounced by the
law of nations, that states neither lose any of their rights, nor are
discharged from any of their obligations, by a change in the form of their
civil government.3 More was scarcely necessary, than to have declared, that
all future contracts by and with the United States should be valid, and
binding upon the parties.
1 1 Tuck Black. Comm. App. 368; Confederation, Art. 12.
2 The Federalist, No. 43, No. 84.
3 The Federalist, No. 84; Rutherforth, B. 2, ch. 10, § 14, 15; Grotius, B.
2, ch. 9, § 8, 9.
CH. XLII.] SUPREMACY OF LAWS. 693
§ 1830. The next clause is, "This constitution, and the laws of
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
§ 1831. The propriety of this clause would seem to result
from the very
nature of the constitution. If it was to establish a national government,
that government ought, to the extent of its powers and rights, to be
supreme. It would be a perfect solecism to affirm, that a national
government should exist with certain powers; and yet, that in the exercise
of those powers it should not be supreme. What other inference could have
been drawn, than of their supremacy, if the constitution had been totally
silent? And surely a positive affirmance of that, which is necessarily
implied, cannot in a case of such vital importance be deemed unimportant.
The very circumstance, that a question might be made, would irresistibly
lead to the conclusion, that it ought not to be left to inference. A law,
by the very, meaning of the term, includes supremacy. It is a rule, which
those, to whom it is prescribed, 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 entrusted to
it by its constitution, must necessarily be supreme over those
1 See Journal of Convention, p. 222, 282, 293.
694 CONSTITUTION OF THE U. STATES. [BOOK III.
societies, and the individuals, of whom they are composed. It would
otherwise be a mere treaty, dependent upon the good faith of the parties,
and not a government, which is only another name for political power and
supremacy. But it will not follow that acts of the larger society, which
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. They will be merely acts of usurpation, and will deserve
to be treated as such. Hence we perceive, that the above clause only
declares a truth, which flows immediately, and necessarily from the
.institution of a national government.1 It will be observed, that the
supremacy of the laws is attached to those only, which are made in
pursuance of the constitution; a caution very proper in itself, but in fact
the limitation would have arisen by irresistible implication, if it had not
§ 1832. 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 with us; 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 war.3 It is, therefore, indispensable,
that they should have the obli-
1 The Federalist, No. 33. See Gibbons v. Ogden, 9 Wheat. R. 210, 211;
McCulloch v. Maryland, 4 Wheat. R. 405, 406.--This passage from the
Federalist (No. 33) has been, for another purpose, already cited in Vol. I.
§ 340; but it is necessary to be here repeated to give due effect to the
2 Ibid. See also 1 Tuck. Black. Comm. App. 369, 370.
3 See The Federalist, No. 64.
CH. XLII.] SUPREMACY OF LAWS. 695
gation 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;1 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
supreme 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.2 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.3 It is
1 See Act of Congress, 7th July, 1798, ch. 84; Talbot v. Seaman, I Cranch,
1; Ware v. Hylton, 3 Dall. 362, Per Iredell J.
2 Ware v. HyIton, 3 Dall. R. 199. See also Gibbons v. Ogden, 9 Wheat. R.
210, 211; Letter of Congress of 13th April, 1787; 12 Journ. of Congress,
3 See Iredell J.'s reasoning in Ware v. Hylton, 3 Dall. R. 270 to 127; 5
Marshall's Life of Washington, ch. 8, p. 652, 656; 1 Wait's State Papers,
45, 47, 71, 81, 145; Serg. on Const. ch. 21, p. 217,218, ch. 33, p. 396,
397, (2d edit. ch. 21, p. 218, 219, ch. 34, p. 406, 407.)--"A.
696 CONSTITUTION OF THE U. STATES. [BOOK III.
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 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.1 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.2 It was probably to obviate this
very difficulty, that this clause was inserted in the. constitution;3 and
it would redound to the immortal honour of its authors, if it had done no
more, than thus to bring treaties within the sanctuary of justice, as laws
of supreme obligation.4 There are, indeed, still cases, in which courts of
justice can administer no effectual redress; as when the terms
treaty," said the Supreme Court, in Foster v. Neilson, 2 Peters's R. 314,
"is in its nature a contract between two nations, not a legislative act.
It does not generally effect of itself the object to be accomplished,
especially so far, as its operation is infraterritorial; but is carried
into execution by the sovereign power of the respective parties to the
instrument. In the United States a different principle is established. Our
constitution declares a treaty to be the law of the land. It is
consequently to be regarded by courts of justice as equivalent to an act of
the legislature, whenever it operates of itself without the aid of. any
1 Circular Letter of Congress, 13th April, 1787; 12 Journ. of Congress, 32
2 See the opinion of Iredell J. in Ware v. Hylton 3 Dall. 270 to 277.
3 Id. 276, 277. See Journal of Convention, p. 222, 282, 283, 293.
4 The importance of this power has been practically illustrated by the
redress afforded by courts of law in cases pending before them upon treaty
stipulations. See United States v. The Peggy, 1 Cranch, 103; Ware v.
Hylton; 3 Dall. R. 199, 244, 261; United States v. Arradondo, 6 Peters's R.
691; Soulard v. Smith, 4 Peters's Sup. R. 511; Cue of Jonathan Robbins, 1
Hall's Journ. of Jurisp. 25; Bees Adm'rs Rap. 263; 5 Wheat. Rap. App.
CH. XLII.] SUPREMACY OF LAWS. 697
of a stipulation import a contract, 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.1
§ 1833. It is melancholy to reflect, that, conclusive as
this view of the
subject is in favour of the supremacy clause, it was assailed with great
vehemence and zeal by the adversaries of the constitution; and especially
the concluding clause, which declared the supremacy, "any thing in the
constitution or laws of any state to the contrary notwithstanding."2 And
yet this very clause was but an expression of the necessary meaning of the
former clause, introduced from abundant caution, to make its obligation
more strongly felt by the state judges. The very circumstance, that any
objection was made, demonstrated the utility, nay the necessity of the
clause, since it removed every pretence, under which ingenuity could, by
its miserable subterfuges, escape from the controlling power of the
§ 1834. To be fully sensible of the value of the whole
clause, we need
only suppose for a moment, that the supremacy of the state constitutions
had been left complete by a saving clause in their favour. "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
1 Foster v. Neilson, 2 Peters's Sup. R. 254, 314. See also the Bello
Corunnes, 6 Wheat. R. 171; Serg. on Const. ch. 33, p. 397, 398, 399, (ch.
34, p. 407, 408, 409, 410, 2d edit.)
2 See The Federalist, No. 44, 64.
698 CONSTITUTION OF THE U. STATES. [BOOK III.
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."1
§ 1835. At an early period of the government a question
arose, how far a
treaty could embrace commercial regulations, so as to be obligatory, upon
the nation, and upon congress. It was debated with great zeal and ability
in the house of representatives.2 On the one hand it was contended, that a
treaty might be made respecting commerce, as well as upon any other
subject; that it was a contract between the two nations, which, when made
by the president, by and with the consent of the senate, was binding
1 The Federalist, No. 44.
2 The question arose in the debate for carrying into effect the British
Treaty of 1794.
CH. XLII.] SUPREMACY OF LAWS. 699
upon the nation; and that a refusal of the house of representatives to
carry it into effect was breaking the treaty, and violating the faith of
the nation. On the other hand, it was contended, that the power to make
treaties, if applicable to every object, conflicted with powers, which were
vested exclusively in congress; that either the treaty making power must be
limited in its operation, so as not to touch objects committed by the
constitution to congress;or the assent and co-operation of the house of
representatives must be required to give validity to any compact, so far as
it might comprehend these objects: that congress was invested with the
exclusive power to regulate commerce; that therefore, a treaty of commerce
required the assent and co-operation of the house of representatives; that
in every case, where a treaty required an appropriation of money, or an act
of congress to carry it into effect, it was not in this respect obligatory,
till congress had agreed to carry it into effect; and, that they were at
free liberty to make, or withhold such appropriation, or act, without being
chargeable with violating the treaty, or breaking the faith of the nation.
In the result, the house of representatives adopted a resolution declaring,
that the house of representatives do not claim any agency in making
treaties; but when a treaty stipulates regulations on any of the subjects
submitted to the power of congress, it must depend for its execution, as to
such stipulations, on a law or laws to be passed by congress; and that it
is the constitutional right and duty of the house of representatives, in
all such cases, to deliberate on the expediency or inexpediency of carrying
such treaty into effect, and to determine and act thereon, as in their
judgment may be most condu-
700 CONSTITUTION OF THE U. STATES. [BOOK III.
cive to the public good. It is well known, that the president and the
senate, on that occasion, adopted a different doctrine, maintaining, that a
treaty once ratified became the law of the land, and congress were
constitutionally bound to carry it into effect.1 At the distance of twenty
years, the same question was again presented for the consideration of both
houses, upon a bill to carry into effect a clause in the treaty of 1815
with Great Britain, abolishing discriminating duties; and, upon that
occasion, it was most ably debated. The result was, that a declaratory
clause was adopted, instead of a mere enacting clause, so
1 See Journal of House of Representatives, 6th April, 1796; 5 Marshall's
Life of Washington, ch. 6, p. 650 to 659; Serg. on Const. ch. 33, p. 401,
(2d edit. ch. 34, p. 410, 411); 1 Debates on British Treaty, by F. Bache,
1796, p. 374 to 386; 4 Elliot's Deb. 244 to 246. -- President Washington,
on this occasion, refused to deliver the papers respecting the British
Treaty of 1794, called for by the house of representatives; and asserted
the obligatory force of the treaty upon congress in the most emphatic
terms. He added, that be knew, that this was understood in the convention
to be the intended interpretation, and he referred to the Journal of the
Convention* to show, that a proposition was made, "that no treaty should be
binding on the United States, which Was not ratified by a law;" and that it
was explicitly rejected. (5 Marshall's Life of Washington, ch. 8, p. 654
to 658.) At a much earlier period, viz. in 1790, the same point came
before the cabinet of President Washington in a treaty proposed with the
Creek Indians. Upon that occasion, there seems to have been no doubt in
the minds of any of his cabinet of the conclusiveness of a treaty
containing commercial stipulations. Mr. Jefferson, on that occasion,
firmly maintained it. A treaty, (said he,) made by the president with the
concurrence of two thirds of the senate is the law of the land, and a law
of a superior order, because it not only repeals past laws, but cannot
itself be repealed by future ones. The treaty then will legally control the
duty acta and the act for securing traders in thin particular instance.
Yet Mr. Jefferson afterwards, (in Nov. 1793,) seems to have fluctuated in
opinion, and to have been unsettled, as to the nature and extent of the
treaty-making power. 4 Jefferson's Corresp. 497, 498.
* See Journal of Convention, p. 284, 325, 326, 333, 342, 343.
CH. XLII.] SUPREMACY OF LAWS. 701
that the binding obligation of treaties was affirmatively settled.1
§ 1836. 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.2 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.3 Such a
power belongs to it only, when it sits to administer the local law of a
state, and acts exactly, as a state tribunal is bound to act.4 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.5
1 Serg. on Const. ch. 33, p. 402, (2d edit.ch. 34, p. 411; 2 Elliot's Deb.
273 to 279. -- Upon this occasion, a most admirable speech was delivered by
the late William Pinkney, in which his great powers of reasoning and
juridical learning had an ample scope. See Wheaton's Life of Pinkney, p.
2 Marbury v. Madison, 1 Cranch, 137, 176.
3 Calder V. Bull, 3 Dall. R. 386; S.C. 1 Peters's Cond. R. 172, 177.
4 Satterlee v. Matthewson, 2 Peters's Sup. R. 380, 413.
5 See Serg. on Const. ch. 33, p. 391, (2d edit. ch. 34, p. 401 ); 1 Kent's
Comm. Lect. 20, p. 420, 421, (2d edit. p. 448, 449, 450.)