States may require a convention to be called for the purpose of proposing amendments. In each case, three-fourths of the States, either through their legislatures or conventions, called for the purpose, must concur in every amendment before it becomes a part of the Constitution. That this mode of obtaining amendments is practicable, is abundantly demonstrated by our past experience in the only mode hitherto found necessary, that of amendments proposed by Congress. In this mode twelve amendments have already been incorporated into the Constitution. The guards, too, against the too hasty exercise of the power, under temporary discontents or excitements, are apparently sufficient. Two-thirds of Congress, or the legislatures of the States, must concur in proposing, or requiring amendments to be proposed; and three-fourths of the States must ratify them. Time is thus allowed, and ample time for deliberation, both in proposing and ratifying amendments. They cannot be carried by surprise, or intrigue, or artifice. Indeed, years may elapse before a deliberate judgment may be passed upon them, unless some pressing emergency calls for instant action. An amendment, which has the deliberate judgment of two-thirds of Congress, and of threefourths of the States, can scarcely be deemed unsuited to the prosperity or security of the republic. It must combine as much wisdom and experience in its favor as ordinarily can belong to the management of any human concerns.1 In England the supreme power of the nation resides in parliament; and in a legal sense, it is so omnipotent that it has authority to change the whole structure of the constitution without resort to any confirmation of the people. There is, indeed, little danger that it will so do, 1 The Federalist disposes of this article in the following brief but decisive manner : "That useful alterations will be suggested by experience could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility which would render the Constitution too mutable, and that extreme difficulty which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors as they may be pointed out by the experience on one side or the other. The exception, in favor of the equality of suffrage in the senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature, and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it." The Federalist, No. 43. as long as the people are fairly represented in it. But still it does, theoretically speaking, possess the power; and it has actually exercised it so far as to change the succession to the crown, and mould to its will some portions of the internal structure of the constitution.1 § 1831. Upon the subject of the national constitution, we may adopt, without hesitation, the language of a learned commentator. "Nor," says he, "can we too much applaud a constitution which thus provides a safe and peaceable remedy for its own defects, as they may from time to time be discovered. A change of government in other countries is almost always attended with convulsions which threaten its entire dissolution, and with scenes of horror which deter mankind from every attempt to correct abuses or remove oppressions until they have become altogether intolerable. In America we may reasonably hope that neither of these evils need be apprehended. Nor is there any reason to fear that this provision in the Constitution will produce any instability in the government. The mode both of originating and ratifying amendments (in either mode which the Constitution directs) must necessarily be attended with such obstacles and delays as must prove a sufficient bar against light or frequent innovations. And, as a further security against them, the same article further provides that no amendment which may be made prior to the year 1808 shall in any manner affect those clauses of the ninth section of the first article which relate to the migration or importation of such persons as the States may think proper to allow, and to the manner in which direct taxes shall be laid, and that no State shall, without its consent, be deprived of its equal suffrage in the senate." 2 1 See 1 Black. Comm. 90, 91, 146, 147, 151, 152, 160, 161, 162, 210 to 218. CHAPTER XLII. PUBLIC DEBT SUPREMACY OF CONSTITUTION AND LAWS. § 1832. 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 § 1833. 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. A change in the political form of a society ought to have no power to produce a dissolution of any of its moral obligations.+ § 1834. 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, moneys borrowed, and debts contracted by or under the authority of Congress before the ratification of the confederation.5 § 1835. Reasonable as this provision seems to be, it did not 1 See Journ. of Convention, 291. 2 See Jackson v. Lunn, 3 John. Cas. 109; Kelly v. Harrison, 2 John. Cas. 29; Terrett v. Taylor, 9 Cranch, 50. 3 See Rutherford, 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; Rutherford, Inst. B. 2, ch. 10, § 14, 15; Grotius, B. 2, ch. 9, § 8, 9. 5 1 Tuck. Black. Comm. App. 368; Confederation, Art. 12. 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. 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.2 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. § 1836. 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." 99 3 § 1837. 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 sol ecism 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, 1 The Federalist, No. 43, No 84. 2 The Federalist, No. 84; Rutherford, B. 2, ch. 10, § 14, 15; Grotius, B. 2, ch. 9, § 8, 9. 3 See Journal of Convention, p. 222, 282, 293. [Also Cook v. Moffat, 5 How. 295; Dodge v. Woolsey, 18 How. 341; Sinnot v. Davenport, 22 How. 327.] 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 intrusted 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.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 been expressed.2 § 1838. 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 obligation and force of a law, that they may be 1 The Federalist, No. 33. See Gibbons v. Ogden, 9 Wheat. R. 210, 211; M'Culloch 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. 2 Id. See also 1 Tuck. Black. Comm. App. 369, 370. 3 See The Federalist, No. 64. |