The general and State governments,
both established by the people, are established for different purposes,
and with different powers. Between those powers questions may arise; and
who shall decide them? Some provision for this end is absolutely
necessary. What shall it be? This was the question before the
Convention; and various schemes were suggested. It was foreseen that the
States might inadvertently pass laws inconsistent with the Constitution
of the United States, or with acts of Congress. At least, laws might be
passed which would be charged with such inconsistency. How should these
questions be disposed of? Where shall the power of judging, in cases of
alleged interference, be lodged? One suggestion in the Convention was,
to make it an executive power, and to lodge it in the hands of the
President, by requiring all State laws to be submitted to him, that he
might negative such as he thought appeared repugnant to the general
Constitution. This idea, perhaps, may have been borrowed from the power
exercised by the crown over the laws of the Colonies. It would evidently
have been, not only an inconvenient and troublesome proceeding, but
dangerous also to the powers of the States. It was not pressed. It was
thought wiser and safer, on the whole, to require State legislatures and
State judges to take an oath to support the Constitution of the United
States, and then leave the States at liberty to pass whatever laws they
pleased, and if interference, in point of fact, should arise, to refer
the question to judicial decision.
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