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He declares that I originated the clause which enacts that “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 the laws of any state to the contrary notwithstanding.” To place this matter in a proper point of view, it will be necessary to state, that as the propositions were reported by the committee of the whole house, a power was given to the general government to negative the laws passed by the state legislatures, a power which I considered as totally inadmissible; in substitution of this I proposed the following clause, which you will find very materially different from the clause adopted by the Constitution, “that the legislative acts of the United States, made by virtue and in pursuance of the articles of the union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, so far as those acts or treaties shall relate to the said states or their citizens, and that the judiciaries of the several states shall be bound thereby in their decisions, any thing in the respective laws of the individual states to the contrary notwithstanding.” When this clause was introduced, it was not established that inferior continental courts should be appointed for trial of all questions arising on treaties and on the laws of the general government, and it was my wish and hope that every question of that kind would have been determined in the first instance in the courts of the respective states; had this been the case, the propriety and the necessity that treaties duly made and ratified, and the laws of the general government, should be binding on the state judiciaries which were to decide upon them, must be evident to every capacity, while at the same time, if such treaties or laws were inconsistent with our constitution and bill of rights, the judiciaries of this state would be bound to reject the first and abide by the last, since in the form I introduced the clause, notwithstanding treaties and the laws of the general government were intended to be superior to the laws of our state government, where they should be opposed to each other, yet that they were not proposed nor meant to be superior to our constitution and bill of rights.
The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciaries of the several states; thereby rendering law as tedious, intricate and expensive, and justice as unattainable by a great part of the community, as in England; and enable the rich to oppress and ruin the poor.
The proposal to endow Congress with the power to negative state legislation having been rejected by the Convention, Luther Martin of Maryland moved that "the legislative acts of the United States made in virtue and in pursuance of the Articles of Union, and all treaties made or ratified under the authority of the United States, shall be the supreme law of the respective States, and the judiciaries of the several States shall be bound thereby in their decisions, anything in the respective laws of the individual States to the contrary notwithstanding."
The contention of Virginia was based upon the assumption that the Federal and the State Judiciaries constituted independent systems for the enforcement of the Constitution, the national laws, and treaties, and such an assumption Marshall held to be erroneous.
When anything goes badly, they always build something new into the government, but they never abolish anything. They have a president, a premier, and an executive cabinet, and a tricameral legislature, and two complete and distinct judiciaries. The premier is always the presidential candidate getting the next highest number of votes.
Finally, the whole question of the relation of the national courts to the state judiciaries, though it is elaborately discussed by Alexander Hamilton in the "Federalist," is left by the Constitution itself to the practically undirected wisdom of Congress, in the exercise of its power to pass "all laws which shall be necessary and proper for carrying into execution" * its own powers and those of the other departments of the Government.
For the legislative nullification of such measures proposed by the Virginia and Kentucky resolutions is thus substituted judicial nullification by the local judiciaries. In Martin vs. Hunter's Lessee, * which was decided in February, 1816, Story, speaking for the Court, undertook to answer Roane.
But this was only the first step: legislative power had still to be defined and confined. Marshall's audacity in invoking generally recognized moral principles against legislative sovereignty in his interpretation of the "obligation of contracts" clause pointed the way to the American judiciaries for the discharge of their task of defining legislative power.
She had not been in Paris for some months; the horrors and bloodshed of the Reign of Terror, culminating in the September massacres, had only come across the Channel to her as a faint echo. Robespierre, Danton, Marat, she had not known in their new guise of bloody judiciaries, merciless wielders of the guillotine.
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