Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/706

congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former would, in such states, have brought into question every power contained in the proposed constitution. In the third place, as the constitutions of the states differ much from each other, it might happen, that a treaty or national law, of great and equal importance to the states, would interfere with some, and not with other constitutions, and would consequently be valid in some of the states, at the same time, that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.^[1]

§ 1835. At an early period of the government a question arose, how far a treaty could embrace commercial regulations, so as to be obligatory upon the nation, and upon congress. It was debated with great zeal and ability in the house of representatives.^[2] On the one hand it was contended, that a treaty might be made respecting commerce, as well as upon any other subject; that it was a contract between the two nations, which, when made by the president, by and with the consent of the senate, was binding

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1. The Federalist, No. 44.
2. The question arose in the debate for carrying into effect the British Treaty of 1794.