In order to give effect to these precise and stringent directions, the committee of detail introduced into their draft of a constitution a preamble; two articles asserting and providing for the supremacy of the national government; a provision for the oath of officers; and a declaration of the mode in which the instrument was intended to be ratified.

The preamble of the Constitution, as originally reported by this committee, differed materially from that subsequently framed and adopted. It spoke in the name of the people of the States of New Hampshire, Massachusetts, &c., who were said "to ordain, declare, and establish this Constitution for the government of ourselves and our posterity"; and it stated no special motives for its establishment. In this form it was unanimously adopted on the 7th of August. But when, at a subsequent period, the instrument was sent to another committee, whose duty it was to revise its style and arrangement, this phraseology was changed, and the preamble was made to speak in the name of the people of the United States, and to declare the purposes for which they ordained and established the Constitution.[310] The language thus employed in the preamble has justly been considered as having an important connection with the provisions made for the ratification of the instrument to which it was prefixed.

The articles specially designed to assert and carry out the supremacy of the national government, as they came from the committee, embodied the resolutions on the same subject which had passed the Convention. The only material addition consisted in the qualification, that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Constitution. Subsequently, the article was so amended as to make the Constitution, the laws passed in pursuance of it, and the treaties of the United States, the supreme law of the land, binding upon all judicial officers.[311]

It is a remarkable circumstance, that this provision was originally proposed by a very earnest advocate of the rights of the States,—Luther Martin. His design, however, was to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the States contravening in their opinion the Articles of Union, or the treaties subsisting under the authority of the Union.[312] The purpose of the substitute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a State law, supposed to be in conflict with the Constitution, laws, or treaties of the Union, should be inoperative or valid. By extending the obligation to regard the requirements of the national Constitution and laws to the judges of the State tribunals, their supremacy in all the judicatures of the country was secured. This obligation was enforced by the oath or affirmation to support the Constitution of the United States;[313] and, as we shall see hereafter, lest this security should fail, the final determination of questions of this kind was drawn to the national judiciary, even when they might have originated in a State tribunal.[314]

Closely connected in purpose with these careful provisions was the mode in which the Constitution was to be ratified. The committee of detail had made this the subject of certain articles in the Constitution itself.[315] But the committee of revision afterwards presented certain resolutions in the place of two of those articles, which were adopted by the Convention after the Constitution had been signed; leaving in the instrument itself nothing but the article which determined the number of States whose adoption should be sufficient for establishing it.[316] These resolutions pursued substantially the mode previously agreed upon, of a transmission of the instrument to Congress, a recommendation by the State legislatures to the people to institute representative assemblies to consider and decide on its adoption, and a notice of their action to Congress by each State assembly so adopting it. The purpose of this form of proceeding, so far as it was connected with the primary authority by which the Constitution was to be enacted, has been already explained.[317]

What then were the meaning and scope of that supremacy which the framers of the Constitution designed to give to the acts of the government which they constructed?

In seeking an answer to this question, it is necessary to recur, as we have constantly been obliged to do, to the nature of the government which the Constitution was made to supersede. In that system, the experiment had been tried of a union of States,—each possessed of a complete government of its own,—which was intended to combine their several energies for the common defence and the promotion of the general welfare. But this combined will of distinct communities, expressed through the action of a common agent, was wholly unable to overcome the adverse will of any of them expressed by another and separate agent, although the objects of the powers bestowed on the confederacy were carefully stated and sufficiently defined in a public compact. Thus, for example, the treaty-making power was expressly vested in the United States in Congress assembled; but when a treaty had been made, it depended entirely upon the separate pleasure of each State whether it should be executed. If the State governments did not see fit to enforce its provisions upon their own citizens, or thought proper to act against them, there was no remedy, both because the Congress could not legislate to control individuals, and because there was no department clothed with authority to compel individuals to conform their conduct to the requirements of the treaty, and to disregard the opposing will of the State.

This defect was now to be supplied, by giving to the national authority, not only theoretically but practically, a supremacy over the authority of each State. But this was not to be done by annihilating the State governments. The government of every State was to be preserved; and so far as its original powers were not to be transferred to the general government, its authority over its own citizens and within its own territory must, from the nature of political sovereignty, be supreme. There were, therefore, to be two supreme powers in the same country, operating upon the same individuals, and both possessed of the general attributes of sovereignty. In what way, and in what sense, could one of them be made paramount over the other?

It is manifest that there cannot be two supreme powers in the same community, if both are to operate upon the same objects. But there is nothing in the nature of political sovereignty to prevent its powers from being distributed among different agents for different purposes. This is constantly seen under the same government, when its legislative, executive, and judicial powers are exercised through different officers; and in truth, when we come to the law-giving power alone, as soon as we separate its objects into different classes, it is obvious that there may be several enacting authorities, and yet each may be supreme over the particular subject committed to it by the fundamental arrangements of society. Supreme laws, emanating from separate authorities, may and do act on different objects without clashing, or they may act on different parts of the same object with perfect harmony. They are inconsistent when they are aimed at each other, or at the same indivisible object.[318] When this takes place, one or the other must yield; or, in other terms, one of them ceases to be supreme on the particular occasion. It was the purpose of the framers of the Constitution of the United States to provide a paramount rule, that would determine the occasions on which the authority of a State should cease to be supreme, leaving that of the United States unobstructed. Certain conditions were made necessary to the operation of this rule. The State law must conflict with some provision of the Constitution of the United States, or with a law of the United States enacted in pursuance of the constitutional authority of Congress, or with a treaty duly made by the authority of the Union. The operation of this rule constitutes the supremacy of the national government. It was supposed that, by a careful enumeration of the objects to which the national authority was to extend, there would be no uncertainty as to the occasions on which the rule was to apply; and as all other objects were to remain exclusively subject to the authority of the States within their respective territorial limits, the operation of the rule was carefully limited to those occasions.