should be "the supreme law of the land," and that the judges in every state should be bound thereby "anything in the constitution or laws of any state to the contrary notwithstanding." The substance of this clause was introduced by Patterson, in the plan which was intended to leave the principle of the confederation untouched. And no wonder, for it was substantially a repetition of the "promise" made by the states in the Articles of Confederation, to "abide by the determinations of the United States in Congress assembled." Under the government of the Confederation, this promise had been of no value for the Confederation had no power to compel the states to keep it. But the creation of a national executive and judiciary made this clause in the constitution mean exactly what it said. The constitution provided that the judicial powers should extend to all cases in law and equity arising under it, or the laws and treaties made in accordance with it. When, therefore, Congress or the legislature of a state passes a law which any one considers as encroaching upon his rights as guaranteed by the constitution, he can refuse to obey it on the ground that it is unconstitutional. The case so arising comes before the federal courts, and if they in the last resort declare the act unconstitutional, it is null and void so far as the particular case before them is concerned. There is nothing in the constitution to prevent the continued enforcement of the nullified law in all other cases that are not brought before the federal courts. But the decisions of the Supreme Court are so universally respected that they have "the force of a general rule," and no executive attempts to enforce a law in any case in which they have been pronounced unconstitutional.* Americans who are familiar with no constitutional Burgess on Su system but their own, are apt to look upon preme Court of this as a matter of course, but Burgess has shown us that this is far from being the the United States. case. "In England, France and Germany," he tells us, "such an effect is scarcely thought of. We have seen however, that the supreme court of England, France and Germany might deal with a particular case just as the Supreme Court of the United States deals with it, and that the legislatures of these respective States have only about the same powers of coercion over those courts that the Congress of the United States possesses. What, then, is it which causes this all important generalization to be made immediately and unconditionally from a special decision of the Supreme Court of the United States, when such a generalization is scarcely dreamed of anywhere else?" "We must go back of statutes and constitution for the explanation. Back of these, however, there lies nothing in the domain of political science but public opinion." It is, then, the feeling of the American people that law must rest upon reason and justice, that the constitution is a *See Burgess' Science and Constitutional law, vol. II, p. 327. more reliable statement of the principles of reason and justice, than mere legislative acts, and that the judiciary is a more trustworthy interpreter of those principles than the legislature-it is this feeling which has given such authority to the interpretation of the constitution by the Supreme Court. This feeling "has been awakened and developed by the fact that the political education of the people has been directed by the jurists rather than the warriors or the priests; and it is the reflex influence of this education that upholds and sustains, in the United States, the aristocracy of the robe. I do not hesitate to call the governmental system of the United States the aristocracy of the robe; and I do not hesitate to pronounce this the truest aristocracy for the purposes of government which the world has yet produced."* QUESTIONS. 1. What is the difference between a republic and a representative democracy? Which did the Convention aim to provide for? 2. How do you account for the pronounced anti-democratic tendencies of men like James Madison and Elbridge Gerry? 3. Specify the various features of the constitution which show that it provides for a republic rather than a representative democracy. 4. Our governmental system is in fact much more democratic than the framers of the constitution intended it to be. State the reasons. 5. Contrast the Virginia and New Jersey plans. 6. What was the Connecticut compromise? * Burgess' Political Science and Constitutional Law, vol. II, p. 360. 7. Did the constitution, as Gouverneur Morris asserted, put a premium on slavery? 8. What was the compromise between the commercial states, and North and South Carolina, and Georgia? 9. State the three slavery clauses in the constitution. 10. Did the fugitive slave clause in the constitution authorize the capture of fugitive slaves, prior to the passage of a fugitive slave law? 11. When was the first fugitive slave law passed? 12. What was the compromise between state sovereignty and nationalism? 13. Which of the compromises proved to be denationalizing forces, and why? 14. What effect did the civil war have on the compromises of the constitution? 15. How did the Convention at first propose to prevent the states from passing unconstitutional laws? 16. What provision did they finally make to prevent it? 17. What does Burgess mean when he calls the aristocracy of the robe the governmental system of the United States? THE CHAPTER IV. THE ANTIFEDERAL PARTY. HE Convention finished its work in September. The constitution was published in the newspapers of Philadelphia about the middle of the month, and then the contest between the Federalists and the Antifederalists began. The programme of the Antifederalists was purely negative. Like the Irishman, who said he was "agin the government," when he was asked as he landed Programme Antifederalists. in New York what political party he be- of the We must be careful not to confuse them with the Republicans or Democrats who began to exist as a party about 1791. The questions at issue between the two parties in 1791 were entirely different from the single question which divided the Federalists and Antifederalists in 1787. Shall the constitution be adopted? That was the one question at issue between the Federalists and the Antifederalists in 1787. But the questions that divided the Federalists and Antifederalists Republicans in the administrations of Washington and Adams related to matters of finance and foreign affairs, and the proper interpretation of the and Republicans. |