ARTICLE VI

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.132

132 This was "a solemn assurance to public creditors and to the world that the public faith would be inviolably kept by the United States under its changed government."

Hamilton put the debt of the Union at $11,710,378 owing in foreign countries and $42,414,085 of domestic debt. The States themselves owed $25,000,000, making debts in the aggregate of $79,000,000.

The credit of the Colonies had sunk so low during the Revolution that had it not been for bankers in Holland and France the war for freedom must have failed. Thereafter the young States issued so much paper money and passed so many laws making it difficult for creditors to collect debts that it was considered necessary to give assurance to the world that the Nation would pay.

In like manner the Dominion of Canada assumed in its Constitution (1867) responsibility for existing debts.

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;

133

133 This means that the Constitution itself is a law which it is the duty of the courts (State as well as National) to

uphold and enforce as they do all other laws. A law of Congress to be one of the supreme laws must be "made in pursuance thereof" and not in conflict with the Constitution. When not made in pursuance thereof it is of course unconstitutional and of no effect.

"If the State governments had not been restrained from encroaching on the powers vested in the National Government," wrote President Monroe, "the Constitution, like the Confederation, would soon have been set at naught; and it was not within the limit of the human mind to devise any plan for the accomplishment of the object other than by making a National Constitution which should be to the extent of its powers the supreme law of the land."

"Legislators have their authority measured by the Constitution," says Cooley; "they are chosen to do what it permits, and nothing more, and they take solemn oath to obey and support it. . To pass an act when they are in doubt whether it does not violate the Constitution is to treat as of no force the most imperative obligations any person can assume."

Before this supreme law the acts of Congress, the acts of State legislatures, and the constitutions of States, when conflicting with it, go down. When the people express their will in the National Constitution all conflicting expressions of will of an inferior sort go for nothing. An excellent illustration of the absolute supremacy of the Constitution was presented in the Eighteenth Amendment, prohibiting the manufacture and sale of intoxicating liquors, because at the time of its adoption there were not only many States with laws permitting the manufacture and sale of liquors, but there were also acts of Congress, and, moreover, the National treasury derived large revenue from licenses and taxes respecting liquors. But all those fell and were nothing the instant that the Eighteenth Amendment, the supreme law, took effect. "The first section of the Amendment," said the Supreme

Court of the United States, disposing (June 7, 1920) in one decision of cases which arose in New Jersey, Rhode Island, Massachusetts, Kentucky, Wisconsin, and Missouri, "the one embodying the prohibition, is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers, and individuals within those limits, and of its own force invalidates every legislative act - whether by Congress, by a State legislature, or by a Territorial assembly — which authorizes or sanctions what the section prohibits."

A good illustration of the statement in the Constitution that a treaty (along with the Constitution itself, and the acts of Congress made in the pursuance of it) is the supreme law of the land, before which National laws, State laws, and judicial decisions must fall, is found in the Migratory Bird Case, in which the Supreme Court held (1920) that, upon our making a treaty in 1916 with Great Britain for the protection of birds passing between the United States and Canada, the States ceased to have regulatory power. When the supervisory power was given to Congress by a treaty, the treaty and the act to carry it out became the supreme law of the land. Of the three elements entering into what the Constitution declares to be the "supreme law of the land", namely, "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", the treaty is second to no other. The laws of Congress are not the supreme law of the land unless they "shall be made in pursuance thereof" of the Constitution. But the treaty is the supreme law of the land when made "under the authority of the United States" — that is, when negotiated by the President and approved by the Senate. The people having expressed their National will in a treaty, the will of a State respecting the subject must conform to the superior will.

Of the coöperation which should prevail between the State and the Nation and of the proper relation of the two governments to each other the Supreme Court said (1858):

"Nor is there anything in this supremacy of the general government, or the jurisdiction of its judicial tribunals, to awaken the jealousy or offend the natural and just pride of State sovereignty. Neither this government, nor the powers of which we are speaking, were forced upon the States. The Constitution of the United States, with all the powers conferred by it on the general government, and surrendered by the States, was the voluntary act of the people of the several States, deliberately done, for their own protection and safety against injustice from one another."

and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.134

134 Every judge in every court of the States is under oath or affirmation to support the Constitution of the United States. When any litigation arises out of the constitution of his State or out of any of its laws it is by this clause made his duty to "be bound" by the National Constitution and laws and in a proper case to hold the State constitution or law to be void for conflict with "the supreme law of the land.” This the courts of the States have done from the beginning down in almost countless cases, as where a State constitution or law has interfered with or assumed to control interstate commerce, or to deal discriminatively with the citizens of other States or of the United States, or to emit bills of credit or paper money, or to prescribe ex post facto punishment, or to impair the obligations of contracts, and so on. But when a State court fails in this respect its action is reviewable and reversible by the Supreme Court of the United States.

Discussing this clause, Dicey, the distinguished English legist, mentions that while French constitutionalists endeavored by many and strict provisions to "confine the power of the legislature", they failed to recognize and provide for "the fact that enactments of the legislature might, without being in so many words opposed to the Constitution, yet be of dubious constitutionality, and that some means would be needed for determining whether a given law was or was not in opposition to the principles of the Constitution." He states that "a constitution may be undermined by the passing of laws which, without nominally changing its provisions, violate its principles." George Washington adverted to this in his Farewell Address and said that "one method of assault may be to effect in the form of the Constitution alterations which will impair the energy of the system and thus to undermine what cannot be directly overthrown."

Dicey declares that the Americans solved the problem. They "directed their attention, not so much to preventing Congress and other legislatures from making laws in excess of their powers, as to the invention of means by which the effect of unconstitutional laws may be nullified; and this result they have achieved by making it the duty of every judge throughout the Union to treat as void any enactment which violates the Constitution, and thus have given to the restrictions contained in the Constitution on the legislative authority either of Congress or the State legislature the character of real laws, that is, of rules enforced by the courts. This system, which makes the judges the guardians of the Constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation."

In another chapter Dicey returns to the subject and points out that "in no country has greater skill been expended" in the construction of a judicial system, and he mentions again that "the guardianship of the Constitu