§ 34. “Shall be Binding on the Courts, Judges and People.”

The importance of these words, as indicating one of the fundamental principles of the Constitution, should be specially noted. They make Clause 5 of the Commonwealth Constitution Act substantially similar in scope and intention to article VI. sec. 2 of the Constitution of the United States, supra. Under this clause, the Act, the Constitution, and laws of the Commonwealth made in pursuance of its powers, will be the supreme law of the land, binding on the Courts, Judges, and people of every State, notwithstanding anything to the contrary in the laws of any State. The latter words operate as a rescission of all State laws incompatible with the Act, with the Constitution, and with such laws as may be passed by the Parliament of the Commonwealth in the exercise of its Constitutional rights. Therefore, by this clause, coupled with sections 106 to 109, all the laws of a State, constitutional as well as ordinary, will be in effect repealed so far as they are repugnant to the supreme law. All the laws of any State, so far as not inconsistent with the supreme law, will remain in force until altered by the proper authority.

The pre-eminent significance of this direct action of the federal laws on the Courts, Judges, and people, is that it forms a distinctly national feature of the Constitution and differentiates it from the weakness and imperfection of a confederate system of government. The constitutional value of these words will be better appreciated by comparing this Constitution with the Articles of Confederation of the American States (1781), from which they are absent.

Those articles established a league of States organized in a Congress in which each State had an equal voice. The Congress was endowed with certain legislative powers, but it lacked any means of enforcing obedience to its mandates. Not only was there no federal executive or judiciary worthy of the name, but the laws of the Congress were directed to the States as political entities and not to private individuals. Congress could not pass a single law binding on the Courts, Judges, or people of the States. It could only recommend the States to pass local Acts giving effect to its laws or requisitions. (Fiske, Critical Period of American History, p. 99.) One of the greatest triumphs of the American Constitution (1787) was that it gave expression to the original and noble conception of a dual system of government operating at one and the same time upon the same individuals, harmonious with each other, but each supreme in its own sphere (id. 239). This dual system gave rise to two groups or classes of laws— State laws and Federal laws—both equally binding on individuals and enforceable by appropriate procedure. Thereby the federal principle of the Union of States, which was the basis of the Articles of Confederation, was preserved and conjoined with the national principle that the laws of the Union should be binding on the people of the Union, interpreted by the judges of the Union, and enforced by the Executive of the Union.

“In all communities there must be one supreme power and one only. A confederacy is a mere compact, resting on the good faith of the parties; a national, supreme government must have a complete and compulsive operation.” (Gouverneur Morris, in the Federal Convention, 30th May, 1787. Bancroft's History of the United States, vol. 2, p. 15.)

“In the nature of things punishment cannot be executed on the States collectively; therefore such a government is necessary as can operate directly on individuals.” (George Mason, id., p. 15.)

“ he difference between a federal and a national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities.” (Madison, in The Federalist, xxxix., p. 237, cited Foster on the Constitution, vol. I., p. 106.)

As of the laws of Congress and the Constitution of the United States, so of the laws of the Federal Parliament and the Constitution of the Commonwealth, it may be

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said that their authority extends over the whole territory of the Union, acting upon the States and the people of the States. Whilst the Federal Government is limited in the number of its powers, within the scope of those powers it is supreme. No State Government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which the Constitution has committed to it. (Tennessee v. Davis, 100 U.S. 257.)