History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle FramersCurtis, George Ticknor
History
History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle Framers
Curtis, George Ticknor
Constitutional history -- United States
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?
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