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THE SUPREMACY OF THE UNION.
Clause 1.-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.
608. Validity of the Public Debt.-In the prosecution of the war against England, the Confederation had contracted a large public debt, partly domestic and partly foreign. While this debt would be as binding in morals and in international law against the new Government as against the old one, since the change in no way affected the identity of the American people or the continuity of the National life, at the same time a formal assertion of its validity in the organic law could not fail to give confidence, particularly in those countries where the foreign debt was held.
60g. Weak Point in a Federal System.- This is
бор always the relation of the local governments to the general government. It is the problem of securing at once both local freedom and independence, and national union and strength. The states are equal in rank, but if the national authority stands on the same level, the union exists only in name. If the system is efficient and permanent, the national jurisdiction must therefore be paramount. This point the Constitution protects by the following clauses :
Clause 2.—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,
Clause 3.—The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath, or affirmation, to support this Constitution ; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
610. The Supreme Law.-No declaration could be more distinct and emphatic than the first of these clauses, that the National Constitution, laws, and treaties are the supreme law of the land. It makes this Constitution and these laws and treaties the paramount part of the State constitutions and governments. But the Federal Convention, not content with this declaration, provided practical safeguards of the strongest character.
611, State Judges Bound.-The judges in every State are bound by the National Constitution, laws, and treaties, no matter what the constitutions and laws of their particular States may contain. All State officers are required to take an oath to that effect; but there is peculiar propriety in singling out the judges, since they construe and declare the law, and so give effect to it by their judgments and orders. In every instance in which a State judge finds the State law in conflict with the National law, he must disregard the State and declare for the Union. Furthermore, he is bound by the decisions of the National courts in respect to the National Constitution and laws, and in respect to the State constitution and laws in so far as these involve Federal questions. This provision tends to secure a consistent and uniform jurisprudence, as well as to maintain the supremacy of the National authority.
612. The Oath Prescribed.—The first law enacted by Congress under the Constitution was one prescribing the oath to be taken by National and State officers. In 1862 a very stringent oath, popularly called the “iron-clad oath,” was prescribed for all officers under the General Government, including Senators and Representatives. This act was applied in 1865 to attorneys practicing in the National courts,
but the provision was declared unconstitutional by the Supreme Court in 1866.1 The act of 1862 has since been repealed. The oath of 1789 is: “I, A B, do solemnly swear, or affirm (as the case may be), that I will support the Constitution of the United States."
613. Limit of the National Supremacy.—The supremacy of the Union is limited to those powers and functions that are delegated to it by the Constitution. Within this sphere, it is all powerful ; beyond this sphere, it has no power whatever. The laws enacted by Congress are supreme so long as they are in force; when they are declared repugnant to the Constitution by the proper authority, they are null and void.
614. No Religious Test.–Governments having state churches have often required religious qualifications for holding offices or public trusts. The English Test and Corporate Act, passed in 1675, which included among its qualifications for entering on any municipal office a reception of the communion according to the rites of the Anglican Church, was not repealed until 1828. Jews were not allowed to sit in the House of Commons until 1858. The Lord Chancellor even now must be a Protestant. Similar tests were common in the Colonies, and have also existed in the States. It was not until 1877 that New Hampshire struck from her constitution clauses requiring her Governor and legislators to be adherents of the Protestant religion. The National Constitution makes religion an individual, and not a political matter, by establishing the widest tolerance. However, this rule has no application to the States. The Supreme Court has said: “The Constitution makes no provision for protecting the citizens of the respective States in their religious liberties; this is left to the State constitutions and laws; nor is there any inhibition imposed by the Constitution of the United States in this respect on the States."
1 Ex Parte Garland, 4 Wallace 333. 2 Permoli v. First Municipality, 3 Howard 589.
THEORIES OF THE UNION : THE CIVIL WAR.
Mention has been made more than once in these pages of conflicting theories of the Union and the Constitution. The Strict-construction and Loose-construction schools have their favorite theories and phrases. To some extent, these controversies relate to names and words rather than to facts and ideas, but by no means wholly so. Two main lines of divergent thought can be followed from the very beginning of our present government.
615. State Sovereignty.-The theory of State sovereignty assigns to the State a paramount authority. It may be thus summed up: The Declaration of Independence was the work of thirteen peoples, and not of one people. It made the States as independent of one another as of England. The Confederation was the work of States as States, and so was the Constitution. It was framed by State delegates, ratified by State conventions, and created a government of expressly delegated powers. The States are therefore sovereigns; the citizen owes allegiance first to his State, and to the Union only so long as the State remains in the Union. The United States are not a nation in the sense that England or France is a nation, but
a a confederation or league. A State has the same right to recall the powers that it has delegated to the United States that it had to delegate them originally. It is as free to secede from the Union as it was to accede to it in the first place. Of the time and reason for such secession, the State is the absolute judge. Furthermore, if a State sees fit to exercise the right of secessiou, the Union has no legal or constitutional power of coercion. Such is the full-blown theory of State sovereignty; there is a milder one that we are not called upon to state.
616. Secession of the Eleven States.-State sovereignty obtained general currency in the Southern States before the Civil War. Accordingly, when the election of President Lincoln, as they thought, endangered their rights in the Union, eleven States seceded from the
Union. Such opposition as these acts of secession encountered within the States, was made mainly on the ground of expediency; few men ventured to deny the doctrine of State sovereignty. The ordinances of secession were enacted in most cases by State conven
ons, and but few of them were submitted to the people for their ratification. The South Carolina ordinance may be taken as an example. It simply professed to undo what had been done seventytwo years before.
“We, the people of the State of South Carolina, in convention assembled, do declare and ordain, and it is hereby declared and ordained, that the ordinance adopted by us in convention, on the 23d of May, in the year of our Lord 1788, whereby the Constitution of the United States was ratified, and all other acts and parts of acts of the General Assembly of this State ratifying amendments of the said Constitution, are hereby repealed; and that the Union now subsisting between South Carolina and other States, under the name of the United States of America, is hereby dissolved.”
The seceding States did not admit secession to be an act of revolution, like the Declaration of Independence, but asserted it to be a constitutional act. How naturally it sprang from the doctrine of State sovereignty, is apparent at a glance.
617. The National Theory.—This has been stated in forms somewhat different. The following is a summary of the statement made by Chief Justice Chase in delivering the judgment of the Supreme Court in the celebrated case of Texas v. White, decided in 1869.2
The Union of the States is not, and never was, a purely arbitrary and artificial relation. It grew out of the common origin, sympathies, principles, interests, and geographical relations of the Colonies. It was strengthened by the necessities of the Revolutionary War, and the Articles of Confederation solemnly declared it to be perpetual. Moreover, the Constitution was expressly ordained to form a more perfect union. But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual State existence, or of the right of self-government by the States. On the contrary, the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitu
1 The following are the States that seceded, with the dates of the ordinances
..February 1, 1861
. April 17, 1861
. May 6, 1861 Alabama....
January 11, 1861 North Carolina....... .May 20, 1851
June 8, 1861
.. January 26, 1861 27 Wallace 700.