Therefore, on August 25th, two days after the adoption of Mr. Rutledge's amendment, Mr. Madison, seconded by Gouverneur Morris, proposed to insert after "all treaties made" the phrase "or which shall be made," with the following result:

And all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.

In view of the letter to Mr. Randolph, written before the meeting of the Convention, we can understand the purpose which Mr. Madison had in mind; but it was not enough that Mr. Randolph knew it, it was necessary that the members of the Convention should know it and share it. Therefore, in proposing the amendment, he said, as he records in his Notes:

This insertion was meant 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.1

As thus amended, the article was referred to the Committee on Style,2 which reported it back to the Convention in its present form, making the Constitution, the acts of Congress made in pursuance thereof, and treaties of the United States "the supreme law of the land" instead of "the supreme law of the respective States,"—an expression which no doubt seemed to them to be a difference of form but not of substance. It appears that this particular phrase was one with which the men of affairs of the day were familiar, inasmuch as eight Constitutions of the States referred to "the law of the land," a ninth to "the laws of the land"; and that the Articles of Confederation were considered part of "the law of the land" of each State. It further appears that the treaty with Great Britain recognizing the independence of the States and its provisions were stated to be part of the "laws of the land of each of the States" in resolutions unanimously passed by the Congress of the Confederation on March 21, 1787, on the eve of the Convention, and in the Federal letter addressed by the Congress on April 13, 1787, advocating the repeal of acts of the State inconsistent with the terms of that treaty. These details, unimportant in themselves, have an added interest if it be borne in mind that four of the five members of the Committee on Style, to which the Constitution was referred for its finishing touches, were members of the Congress which had adopted the resolutions and addressed the Federal letter to the States. Indeed the content of the

3

Documentary History, Vol. III, p. 619.

This Committee was composed of Messrs. Johnson, Hamilton, Morris, Madison, and King. Journals of the American Congress, 1823, Vol. IV, pp. 735-8.

resolutions may have been responsible for the form of the clause. It is at least in conformity with the relation created between the Government of the Union, on the one hand, and the States, on the other, in the matter of treaties. The resolutions are therefore quoted:

Resolved, That the legislatures of the several states cannot of right pass any act or acts, for interpreting, explaining, or construing a national treaty or any part or clause of it; nor for restraining, limiting, or in any manner impeding, retarding, or counteracting the operation and execution of the same, for that on being constitutionally made, ratified and published, they become in virtue of the confederation, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them.

Resolved, That all such acts or parts of acts as may be now existing in any of the states, repugnant to the treaty of peace, ought to be forthwith repealed, as well to prevent their continuing to be regarded as violations of that treaty, as to avoid the disagreeable necessity there might otherwise be of raising and discussing questions touching their validity and obligation.

Resolved, That it be recommended to the several states to make such repeal rather by describing than reciting the said acts, and for that purpose to pass an act declaring in general terms, that all such acts and parts of acts, repugnant to the treaty of peace between the United States and his Britannic majesty, or any article thereof, shall be, and thereby are repealed, and that the courts of law and equity in all causes and questions cognizable by them respectively, and arising from or touching the said treaty, shall decide and adjudge according to the true intent and meaning of the same, any thing in the said acts or parts of acts to the contrary thereof in any wise notwithstanding.1

This is not the place to consider the origin, nature and the duty of judges to declare acts of Congress, constitutions and statutes of the States null and void in so far as they are contrary to the Constitution of the United States, which is also the Constitution of each of the States and therefore their fundamental law. It is nevertheless advisable to mention the way in which the judicial power of the United States, extended to cases in law and equity arising under the Constitution, acts of Congress and treaties, taken in connection with the clause of the Constitution under consideration, operates and renders the use of force against the States a stranger to the American system.

It was admitted on all sides that the authority of the United States within the sphere of its grant by the States should prevail within the States, because the grant made it the law of each of the States. That, however, was not enough, because it would not, on that account, take precedence of another or subsequent law of the State. By making the Constitution, the

1

Journals of the American Congress, 1823, Vol. vi, pp. 729-30. Session of March 21st.

acts of Congress passed in pursuance thereof, and the treaties of the United States negotiated in accordance with its terms, the supreme law of the land of each of the States, the Constitution, the acts of Congress, and the treaties became laws of each of the States, just as if they had originated in each and had been made for each and by each for itself.

Admitting this to be so, what was to be done to the United States if a State framed a constitution or passed a law inconsistent with the Constitution? The national legislature ought to possess the power "to negative all laws," said Mr. Madison, supposing him to have been the author of the Virginian plan, "passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfil its duty under the articles thereof." But a little reflection caused him to renounce the plan of coercing the States, which he did on the floor of the Convention within two days of its first session, ultimately and with much misgiving relying upon the intervention of the courts to prevent a difficulty which he foresaw might present itself. Again, what was to be done with an act of Congress itself contrary to the terms of the Constitution? Have it passed upon by a council of revision, of which judges of the Supreme Court should be members, said Mr. Madison, and he and his friends clung to each of these proposals with dogged pertinacity.

But the Convention was wiser than any of its members, including even the father of the Constitution. Admitting the necessity of coercion, the enlightened body preferred the coercion of law to the coercion of force, and in entrusting the interpretation of the laws to the courts and, in last resort, to the Supreme Court of the United States. As a step toward the desired goal, the judicial power of the United States was extended to all cases in law and equity arising under the Constitution, acts of Congress passed in pursuance thereof, and treaties made according to its terms. These were declared not merely the law of each of the States but the supreme law of the States, and this extension of the judicial power enabled any person in any State of the Union injured in his person or property to test the validity of the interpretation given to the Constitution, the validity of the law or of the treaty in a court of justice as a case in law or equity, as it arose under one or the other heading. In the course of the trial the Constitution would necessarily be interpreted and applied by the court. The act of Congress or treaty would be declared to be either in accord with the Constitution or contrary to it. In the latter case the act or treaty would be held null and void, and the transaction whereof the litigant complained would be illegal

and the injury to person and property redressed. The incorrect interpretation of the Constitution of the Union or of the States, the treaty itself, and the statute of Congress or of the States, would be set aside in the sense that it would not be regarded by the court as a justification for the act committed under its cover. Repeated acts of a like nature would be declared illegal by the courts, so that, to all intents and purposes, the interpretation of the Constitution of the United States, upon which reliance was based, would be disapproved, and the act or treaty involved declared to be to all intents and purposes invalid. The purposes which Mr. Madison and his friends had in mind would be accomplished without the intervention of force and the State itself would not be involved, inasmuch as the suit was against an individual of the State claiming under its authority as a defense for his action. This process and its results have never been more adequately or more happily described than by Sir Henry Maine in the following passage, to be found in his essay on the Constitution of the United States:

The Supreme Court of the United States, which is the American Federal institution next claiming our attention, is not only a most interesting but a virtually unique creation of the founders of the Constitution. The functions which the Judges of this Court have to discharge under provisions of the Constitution arise primarily from its very nature. The Executive and Legislative authorities of the United States have no powers, except such as are expressly conferred on them by the Constitution itself; and, on the other hand, the several States are forbidden by the Constitution to do certain acts and to pass certain laws. What then is to be done if these limitations of power are transgressed by any State, or by the United States? The duty of annulling such usurpations is confided by the Third Article of the Constitution to the Supreme Court, and to such inferior Courts as Congress may from time to time ordain and establish. But this remarkable power is capable only of indirect exercise; it is called into activity by "cases," by actual controversies, to which individuals, or States, or the United States, are parties. The point of unconstitutionality is raised by the arguments in such controversies; and the decision of the Court follows the view which it takes of the Constitution. A declaration of unconstitutionality, not provoked by a definite dispute, is unknown to the Supreme Court.

The success of this experiment has blinded men to its novelty. There is no exact precedent for it, either in the ancient or in the modern world. The builders of Constitutions have of course foreseen the violation of constitutional rules, but they have generally sought for an exclusive remedy, not in the civil, but in the criminal law, through the impeachment of the offender. And, in popular governments, fear or jealousy of an authority not directly delegated by the people has too often caused the difficulty to be left for settlement to chance or to the arbitrament of arms. "Je ne pense pas," wrote De Tocqueville, in his "Démocratie en Amérique," " que jusqu'à présent aucune nation du monde ait constitué le pouvoir judiciaire de la même manière que les Américains." 1

'Maine, Popular Government, 1886, pp. 217-8.

The coercion of law was consciously preferred to the coercion of force, and the members of the Convention were themselves aware of the success of their labors. Thus, Mr. Madison, in a letter already quoted to his friend Thomas Jefferson after the close of the Convention, said:

A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent and the guilty, the necessity of a military force, both obnoxious and dangerous, and, in general, a scene resembling much more a civil war than the administration of a regular Government. Hence was embraced the alternative of a Government which, instead of operating on the States, should operate without their intervention on the individuals composing them.1

But the most notable and far-reaching statement is that likewise previously quoted of Mr. Oliver Ellsworth, a delegate from Connecticut, soon to be a Senator under the Constitution which he had helped to frame and Chief Justice of the Supreme Court of the United States. In the convention of Connecticut, called to ratify the Constitution, Mr. Ellsworth used, it may appropriately be said, the language of advocate and of statesman, of commentator and of prophet:

This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the general government the law is void; and upright, independent judges will declare it to be so. Still, however, if the United States and the individual states will quarrel, if they want to fight, they may do it, and no frame of government can possibly prevent it. It is sufficient for this Constitution, that, so far from laying them under a necessity of contending, it provides every reasonable check against it. But perhaps, at some time or other, there will be a contest; the states may rise against the general government. If this do take place, if all the states combine, if all oppose, the whole will not eat up the members, but the measure which is opposed to the sense of the people will prove abortive. .

Hence we see how necessary for the Union is a coercive principle. No man pretends the contrary: we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose a coercion of law come out? Where will they end? A necessary consequence of their principles is a war of the states one against the other. I am for coercion by law that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, states, in their

1 The Writings of James Madison, Hunt ed., Vol. V, p. 19. Letter of October 24, 1787.