States; the direction that "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, anything in the Constitution or Laws of any State to the Contrary notwithstanding;" and the inhibitions against the enactment by the States of tender laws, bills of attainder, and laws impairing the obligations of contracts. The prohibitions to the United States, as well as the States, of the enactment of bills of attainder and ex post facto laws, and the recognition of debts contracted by the United States before the adoption of the Constitution, were also designed for this end. The beneficial effects of these prohibitions cannot be overestimated."

§ 22. Significance of the Phrase "to Insure domestic

Tranquillity."

The Articles of Confederation provided no means for the insurance of domestic tranquillity. Congress could not, without the consent of the States, raise the money to arm and to pay an army with which to protect itself from domestic insult. It was at one time driven from the seat of government by a mutiny of

8 Article VI, infra.

4 Article I, § 10, infra.

5 Article I, §§ 9 and 10, infra.

It is

6 " The founders of our democratic, or rather republican institutions were neither visionaries nor socialists. among the eternal lessons of history, which they well knew, that the masses of the people were subject to the influence of supposed temporary interests, and of violent and casual forces' which might be in conflict with their own vital and permanent welfare. Realizing this truth, and the necessity of safe-guarding these vital and permanent interests, the founders of our political and legal institutions devised and the device has been supposed to be the crowning proof of their wisdom-the American polity of constitutional restraints upon all the departments of the governments which

the people established. All the original States undertook to secure the inviolability of private property. This they did, either by extracting and adopting, in terms, the famous thirty-ninth article of Magna Charta, securing the people from arbitrary imprisonment and arbitrary spoliation, or by claiming for themselves, compendiously, all of the liberties and rights set forth in the Great Charter." Argument of Hon. John F. Dillon, in Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 379. "These have been, indeed, the great triumphs of our popular system of government, for these were supposed to be its vulnerable spots. Disbelievers in republican institutions had predicted early shipwreck on these rocks, and when it came not they simply postponed the period of fulfilment." Ibid., p. 381.

eighty soldiers. The power of taxation which is granted in the Constitution was designed for that as well as other ends. Congress under the Confederation was similarly unable to assist in suppressing rebellions within the individual States. Even its right to do so, did it have the means, rested on a forced construction.2 For this reason, there was inserted the express

provision that

"The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence."

§ 23. Significance of the Phrase, “to provide for the
common Defense."

Provision for the "common defense " was one of the express objects of the Confederation of the United States,1 and was more efficiently secured by the Constitution.

The New England Confederation was formed "for offence and defence, mutuall advise and succour." 2 The Constitution furnishes new means for that purpose in its provisions for raising armies and taxation.4

§ 24. Significance of the Phrase, "to promote the
general Welfare."

The Ar

The United Colonies of New England confederated, amongst other things," for their own mutuall safety and welfare." ticles of Confederation of the United States expressed the object of the league as for "their mutual and general welfare.”2 The word "general welfare" was used in the Constitution as broader than and inclusive of the word "mutual." The clause granting Congress the power of taxation limits its exercise "to pay the debts and provide for the common defense and general welfare of the

United States."3 The phrase in the latter clause has been the excuse for the exercise of all doubtful powers by Congress, and will be considered more appropriately in connection with the power of taxation. Neither this nor any other part of the preamble is a grant of power.5

§ 25. Significance of the Phrase, “to secure the Blessings of Liberty."

The New England Confederation of 1643 assigned as an object of the league, "for preserveing and propagateing the truth and liberties of the Gospel." The experience of a century had taught the people that political liberty was more in danger, if not of more importance; and the Articles of Confederation of the United States included in the enumeration of their objects, "the security of their liberties."2 It required almost another hundred years for them to learn to extend the blessings of liberty to the people of every race within their borders.

§ 26. Significance of the Phrase, “Ordain and Establish." The words "ordain and establish" are inconsistent with the theory that the new government was a league or treaty. They are words usually applied to legislation, especially legislation of an extraordinary character. Ordinances by the common law were originally regulations made by the King without the consent of Parliament. In 1641, when the Commons were discussing the manner in which Parliament could legislate without the consent of Charles, the antiquary D'Ewes, referring to an ancient precedent which did not support his position, boldly asserted they had the right to pass laws in the form of ordinances without the consent of the Crown.1 The suggestion was applauded, and almost

3 Constitution, Article I, § 8.

4 Infra.

5 Story on the Constitution, § 462. See infra.

§ 25. 1 Quoted supra, § 4, note 1. 2 Articles of Confederation, III. § 26. The first ordinance which passed the Commons, was in 1641, authorizing commissioners to proceed to Edinburgh to treat with the Scottish

Parliament. It did not take effect till it passed the Lords. The name and form were suggested by the antiquarian D'Ewes, who cited a precedent of 1373 under Edward III, which did not apply, since that, like all other previous ordinances, was made by the King without the consent of Parliament. Gardiner's Fall of the Monarchy of Charles I, vol. i, p. 238.

invariably during the Great Rebellion until the abolition of the office of King, Parliament legislated by ordinance. The Continental Congress and Congress under the Confederation usually proceeded by ordinances or resolutions. The first Constitutions. of Pennsylvania, Vermont and Massachusetts contain the phrase "ordain and establish." Those of New York and Georgia, ordain and declare." 2

The plan of Pinckney, as now preserved, contains the same preamble as the report of the Committee of Detail:

"We, the people of the States of New Hampshire, Massachusetts, Rhode Island, Providence Plantations, Connecticut, New York, New