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and it would redound to the immortal honor of its authors, if it had done no more, than thus to bring treaties within the sanctuary of justice, as laws of supreme obligation. There are, indeed, still cases, in which courts of justice can administer no effectual redress ; for, when the terms of a stipulation import a contract, or when either of the parties engages to perform a particular act, the treaty addresses itself to the political, and not to the judicial, department; and the legislature must execute the contract, before it can become a rule for the courts.
§ 424. From this supremacy of the Constitution, and laws, and treaties, of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by Congress, or by a State legislature, void. So, in like manner, the same duty arises, whenever any other department of the National or State governments exceeds its constitutional functions. But the Judiciary of the United States has no general jurisdiction to declare acts of the several States void, unless they are repugnant to the Constitution of the United States, notwithstanding they are repugnant to the State Constitution. Such a power belongs to it only, when it sits to administer the local law of a State, and acts exactly, as a State tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, State as well as National, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy..
Oath of Office.—Religious Test.—Ratification of the
$425. The next clause is, “ The Senators and Representatives before mentioned, (that is, in Congress,) 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."
$ 426. That all those, who are intrusted with the execution of the powers of the National Government, should be bound, by some solemn obligation, to the due execution of the trusts reposed in them, and to support the Constitution, would seem to be a proposition too clear, to render any reasoning necessary in support of it. It results from the plain right of society, to require some guarantee from every officer, that he will be conscientious in the discharge of his duty. Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those, who feel a deep sense of accountability to a Supreme being. If, in the ordinary administration of justice, in cases of private rights, or personal claims, oaths are required of those, who try the cause, as well as of those, who give testimony, to guard against malice, falsehood, and evasion, surely like guards ought to be interposed in the administration of high public trusts, and especially in such, as may concern the welfare and safety of the whole community. But there are known denominations of men, who are conscientiously scrupulous of taking oaths, (among which is that pure and distinguished sect of Christians, commonly called Friends, or Quakers,) and, therefore, to prevent any unjustifiable exclusion from office, the Constitution has permitted a solemn affirmation to be made, instead of an oath, and as its equivalent.
§ 427. But it may not appear to all persons quite so clear, why the officers of the State governments should be equally bound to take a like oath or affirmation ; and it has been even suggested, that there is no more reason to require that, than to require, that all of the United States officers should take an oath or affirmation to support the State Constitutions. A moment's reflection will show sufficient reasons for the requisition of it in the one case, and the omission of it in the other. The members and officers of the National Government have no agency in carrying into effect the State Constitutions. The members and officers of the State governments have an essential agency in giving effect to the National Constitution. The election of the President and the Senate will depend, in all cases, upon the Legislatures of the several States; and, in many cases, the election of the House of Representatives may be affected by their agency. The judges of the State courts will frequently be called upon to decide upon the Constitution, and laws, and treaties, of the United States ; and upon rights and claims growing out of them. Decisions ought to be, as far as possible, uniform ; and uniformity of obligation will greatly tend to such a result. The executive authority of the several States may be often called upon to exert powers, or to allow rights, given by the Constitution, as in filling vacancies in the Senate, during the recess of the Legislature ; in issuing writs of election, to fill vacancies in the House of Representatives ; in officering the militia, and giving effect to laws for calling them out; and in the surrender of fugitives from justice. These, and many other functions, devolving on the State authorities, render it highly important, that they should be under a solemn obligation to obey the Constitution. In common sense, there can be no wellfounded objection to it. There may be serious evils growing out of an opposite course.
$ 428. The remaining part of the clause declares, that "no religious test shall ever be required, as a qualification to any office or public trust under the United States." This clause is recommended by its tendency to satisfy the minds of many delicate and scrupulous persons, who entertain great repugnance to religious tests, as a qualification for civil power or honor. But it has a higher aim in the Constitution. It is designed to cut off every pretence of an alliance between the Church and the State, in the administration of the National Government. The American people were too well read in the history of other countries, and had suffered too much in their colonial state, not to dread the abuses of authority resulting from religious bigotry, intolerance, and persecution. They knew but too well, that no sect could be safely trusted with power on such a subject ; for all had in turns wielded it 22
to the injury, and sometimes to the destruction, of their inoffensive, but, in their judgement, erring neighbors. And we shall presently see, that, by an amendment to the Constitution, evils of this sort in the National Government are still more effectually guarded against.
§ 429. The seventh and last article of the Constitution is, “ The ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” It is unnecessary now to comment upon this article, as all the States have ratified the Constitution. But we know, that if an unanimous ratification of it, by all the States, had been required, it would have been rejected ; for North Carolina, and Rhode Island, did not, at first, accede to it.
§ 430. And here closes our review of the Constitution in the original form, in which it was adopted by the people of the United States. The concluding passage of it is valuable, as an historical reminiscence. 6 Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States the twelfth. In witness whereof, we have hereunto subscribed our names.” At the head of the illustrious men, who framed and signed it, stands the name of “George Washington, President, and Deputy from Virginia ;' a name, at the utterance of which it is impossible not to feel the liveliest sense of gratitude to a gracious Providence, for a life of so much glory, such spotless integrity, and such exalted patriotism.
Amendments to the Constitution.
6 431. When the Constitution was before the people for adoption, several of the State conventions suggested certain amendments for the consideration of Congress, some of the most important of which were afterwards proposed to the people for adoption, by that body, at its first organization ; and, having been since ratified, they are now incorporated into the Constitution. They are mainly clauses, in the nature of a Bill of Rights, which more effectually guard certain rights, already provided for in the Constitution, or prohibit certain exercises of authority, supposed to be dangerous to the public interests. We have already had occasion to consider several of them in the preceding pages ; and the remainder will now be presented.
§ 432. Before, however, proceeding to the consideration of them, it may be proper to say a few words, as to the origin and objects of the first ten amendments, which may be considered as a Bill of Rights, and were proposed by the first Congress, and were immediately adopted by the people of the United States. The first amendment is, “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
$ 433. It has been already stated, that many objections were taken to the Constitution, not only on account of its actual provisions, but also on account of its deficiencies and omissions. Among the latter, none were proclaimed with more zeal, and pressed with more effect, than the want of a Bill of Rights. This, it was said, was a fatal defect; and sufficient of itself to bring on the ruin of the republic. To this objection, several answers were given; first, that the Constitution did, in fact, contain many provisions in the nature of a Bill of Rights, if the whole Constitution was not, in fact, a Bill of Rights ; secondly, that a Bill of Rights was in its nature more adapted to a monarchy, than to a government, professedly founded upon the will of the people, and executed by their immediate representatives and agents; and, thirdly, that a formal Bill of Rights, beyond what was contained in it, was wholly unnecessary, and might even be dangerous.