its provisions, or is not within the grant of powers made by it, is unconstitutional, and therefore no law, and obligatory upon

no one.

(2) As between a law of the United States made in pursuance of the Constitution and a treaty made under the authority of the United States, if the two in any of their provisions are found to conflict, the one last in point of time must control. For the one as well as the other is an act of sovereignty, differing only in form and in the organ or agency through which the sovereign will is declared. Each alike is the law of the land in its adoption, and the last law must repeal everything that is of no higher authority which is found to come in conflict with it. A treaty may therefore supersede a prior act of Congress; and, on the other hand, an act of Congress may supersede a prior treaty.

(3) A State law must yield to the supreme law, whether expressed in the Constitution of the United States, or in any of its laws or treaties, so far as they come in collision, and whether it be a law in existence when the "supreme law" was adopted or enacted afterward. The same is true of any provision in the constitution of any State which is found to be repugnant to the Constitution of the Union. And not only must "the judges in every State" be bound by such supreme law, but so must the State itself, and every official in all its departments, and every citizen.

(4) The Constitution itself never yields to treaty or enactment; it neither changes with time, nor does it in theory bend to the force of circumstances. It may be amended according to its own permission; but while it stands it is "a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances." Its principles cannot, therefore, be set aside in order to meet the supposed necessities of great crises.

THOMAS M. COOLEY, Constitutional Law. 22-32.

J. C. HURD (1881)

The Revolutionary or Continental Congress, July 4, 1776, declared the "United Colonies" to be free and independent States, "in the name and by the authority of the good people of

these colonies." But the delegates to that Congress, before as well as after the establishment of State governments, had received their appointment from electoral agencies which, in their connection with the people whom they claimed to represent, were very different in the various colonies.

In the government, under the Articles of Confederation, the united political people of the States exercised their power for general national purposes, by the intervention of the same organs by which they exercised power for local or State purposes.

In the government, under the Constitution, the same political people, without a revolution, i. e., without any shifting of sovereign power, exercised their powers for national purposes by the immediate action, through special representatives, of the political people of each State.

The possession by this "people of the United States" of the powers exerted by a general government, co-existent with the possession by the same people of other powers, exerted by the State governments, continued, in manner and form more or less distinctly recognized, from the time of the Revolution onward; and, prior to the late civil war, no political people or body politic had appeared, on the territory recognized by foreign nations from time to time as belonging to the United States, in any public international relation, except as one of the United States, or been recognized by foreign nations or by any State of the Union as using or holding in severalty the powers exerted by the general government.

JOHN C. HURD, The Theory of our National Existence. 134, 135.

E. P. SMITH (1889)

In ample season for discussion and action before the adjournment of the first session of the first Congress, Madison presented a selection of the most desirable amendments suggested by the ratifying States. The changes most widely called for sacrificed nothing vital to the success of the new instrument. They rendered the Constitution its own expounder; they concentrated all the tenets of liberty in Magna Charta, the Petition of Right, and the Bill of Rights. The prompt action of the States in ratifying ten out of the twelve amendments submitted

by Congress proved that these amendments were needed, and that the efforts of the anti-Federalists for a second constitutional convention were not fruitless or unreasonable. . .

The amendments once ratified, all notes of opposition were lost in the chorus of admiration that resounded from every quarter. In the worship of the Constitution that instantly succeeded, men forgot that "it had been extorted from the grinding necessity of a reluctant people." Even those who had so powerfully contended for a second constitutional convention began during Washington's first administration to prove as preeminently "the friends of the Constitution," and it was almost impossible to believe that an instrument, accepted by all parties as the last word of political wisdom, had been produced in a conflict of opinion, adopted with doubt, ratified with hesitation, and amended with difficulty.

EDWARD P. SMITH, in J. F. Jameson's Essays on the Constitutional History of the United States. 111, 115.

HART (1891)

During the first few years of its existence the Constitution was most fortunately administered by those who had framed it, believed in it, and had the wisdom to apply it. Men like Hamilton and Washington shaped a series of organizing acts which proved but less important than the original text. Then came a period of nearly a quarter of a century (1793-1815), when the Republic was involved in foreign complications, including an annexation of territory larger than its original area, and ending in a war; the power over foreign affairs was thus consolidated. The next twenty years (1815-1835) was a time of great commercial growth, and public sentiment favored the application of national powers, both of creation and regulation. A bank was secured; internal improvements applied; commercial treaties were negotiated; and the protective policy was initiated. Then came (1835-1860) a period of great effort to restrict federal powers, partly on principle, and partly lest those powers should be used against slavery..

. . . The Constitution of 1789 has therefore undergone great changes, most of them in the direction of greater centralization. Amendments have rarely been necessary, because each

generation has found the general principles laid down sufficient to give the government power to deal with new questions which come before it. The elasticity and flexibility of the Constitution have not only preserved the federation, but have introduced a new principle into federal government. A Constitution framed for four millions of people, grouped in thirteen thinly populated rural States, suffices for sixty-three millions, in forty-four rich States, abounding in cities. The permanence of the United States is not due to the constructive skill of its founders; it rests upon the fact that the Constitution may, by the insensible effect of public opinion, slowly be expanded, within the forms of law, to a settlement of new questions as they arise.

ALBERT BUSHNELL HART, Federal Government. 59, 60.

STEVENS (1894)

On the whole, Americans, with their democratic tendencies, owe very much of the stability of their government to the weakness of their legislature and the strength of their executive. Had Congress possessed the power of Parliament to alter constitutional principle itself, by a majority vote at any session, and had the cabinet controlled the President as the English cabinet does the sovereign, the American commonwealth very probably might have been wrecked in its constructive period, or in passing through the storms of later time. The presidency is justly regarded by Americans as one of the most valuable creations of the Constitution of 1787. And the fact that the office is rooted in the past institutions of the race is not only the explanation of its existence, but a real, even though unrecognized, cause of its hold on the national heart.

...

But as soon as the draft of the Constitution left the Convention, the lack of a formal bill was severely and persistently criticised by the people. And the promise that one should be added, as soon as the new government actually got under way, was found necessary in order to induce some of the principal States to ratify the instrument. The first ten amendments, therefore, were adopted as speedily as possible by the first Congress and the nation; and to all intents they are to be regarded as a part of the Constitution in

its original unity, as a product of the formative period. Their position in this respect is essentially different from that of the amendments, which are the outcome of subsequent national experience.

Thus there is not only a bill of rights in the Constitution of the United States, but that bill of rights was consciously demanded by the American people themselves against the judgment of their own Constitutional Convention, and for the express reason that they regarded the liberties included therein as their liberties, because based upon old English law.

C. ELLIS STEVENS, Sources of the Constitution of the United States. 173, 213.

BRYCE (1896)

The Constitution of 1789 deserves the veneration with which the Americans have been accustomed to regard it. It is true that many criticisms have been passed upon its arrangement, upon its omissions, upon the artificial character of some of the institutions it creates. Recognizing slavery as an institution existing in some States, and not expressly negativing the right of a State to withdraw from the Union, it has been charged with having contained the germ of civil war, though that germ took seventy years to come to maturity. And whatever success it has attained must be in large measure ascribed to the political genius, ripened by long experience, of the Anglo-American race, by whom it has been worked, and who might have managed to work even a worse-drawn instrument. Yet, after all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definiteness in principle with elasticity in details. One is therefore induced to ask, before proceeding to examine it, to what causes, over and above the capacity of its authors, and the patient toil they bestowed upon it, these merits are due, or in other words, what were the materials at the command of the Philadelphia Convention for the achievement of so great an enterprise as the creation of a nation by means of an instrument of government. The American Constitution is no exception to the rule that everything which has power to win the obedience and respect of men must