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Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Public Debts – Supremacy of Constitution and Laws
Sec. 1826. THE first clause of the sixth article of the constitution is: “All 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
Sec. 1827. This can be considered in no other light, than as a declaratory 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
Sec. 1828. This declaration was probably inserted in the constitution, not only as a solemn recognition of the obligations of the government resulting from national 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.5
Sec. 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.6 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.7 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.
Sec. 1830. The next clause is, “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, any thing in the constitution or laws of any state to the contrary notwithstanding.”8
Sec. 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 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.9 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 been expressed.10
Sec. 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.11 It is, therefore, indispensable, that they should have the obligation 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;12 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.13 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.14 It is 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.15 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.16 It was probably to obviate this very difficulty, that this clause was inserted in the constitution;17 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.18 There are, indeed, still cases, in which courts of justice can administer no effectual redress; as when the terms 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.19
Sec. 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.”20 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 constitution.
Sec. 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 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.”21
Sec. 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.22 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 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 cooperation 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 cooperation 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 conducive 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.23 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 that the binding obligation of treaties was affirmatively settled.24
Sec. 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.25 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.26 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.27 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.28
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; Vattel, Prelim. Dis. § 2, 9; B. 2, ch. 1, § 1, ch. 5, § 64, ch. 14, § 214, 215, 216.
4. The Federalist, No. 43; Rutherforth, Inst. B. 2, ch. 10, § 14, 15; Grotius, B. 2, ch. 9, § 8, 9.
5. 1 Tuck Black. Comm. App. 368; Confederation, Art. 12.
6. The Federalist, No. 43, No. 84.
7. The Federalist, No. 84; Rutherforth, B. 2, ch. 10, § 14, 15; Grotius, B. 2, ch. 9, § 8, 9.
8. See Journal of Convention, p. 222, 282, 293.
9. 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 subsequent passages.
10. Ibid. See also 1 Tuck. Black. Comm. App. 369, 370.
11. See The Federalist, No. 64.
12. See Act of Congress, 7th July, 1798, ch. 84; Talbot v. Seaman, I Cranch, 1; Ware v. Hylton, 3 Dall. 362, Per Iredell J.
13. 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, 39.
14. 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 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 legislative provision.”
15. Circular Letter of Congress, 13th April, 1787; 12 Journ. of Congress, 32 to 36.
16. See the opinion of Iredell J. in Ware v. Hylton 3 Dall. 270 to 277.
17. Id. 276, 277. See Journal of Convention, p. 222, 282, 283, 293.
18. 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.
19. 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.)
20. See The Federalist, No. 44, 64.
21. The Federalist, No. 44.
22. The question arose in the debate for carrying into effect the British Treaty of 1794.
23. 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 Conventiona 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 after-wards, (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.
a. See Journal of Convention, p. 284, 325, 326, 333, 342, 343.
24. 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. 517.
25. Marbury v. Madison, 1 Cranch, 137, 176.
26. Calder V. Bull, 3 Dall. R. 386; S.C. 1 Peters’s Cond. R. 172, 177.
27. Satterlee v. Matthewson, 2 Peters’s Sup. R. 380, 413.
28. 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.)