336 BURR— THE TREATY-MAKING POWER [April 20, 



ever speciously) this condition wrong; it cannot be gainsaid that 

 they wrote the clause under discussion into the Constitution and 

 advocated its adoption ; it cannot be gainsaid that contemporaneously 

 and as a reason for its adoption they interpreted it as creating a 

 condition of afifairs under the Constitution exactly contrary to that 

 existing under the Confederation; namely, a condition where treaties 

 would be supreme and forever beyond the power of any State to 

 infringe. The only issue therefore that can be logically raised is : 

 Is the language of the Constitution so ambiguous, so capable of 

 diverse construction, that one can fairly say that, whatever the 

 intention of its framers, it fails to express such intention? Or 

 to put this question concretely : When the Constitution says : " All 

 treaties . . . shall be the supreme law of the land; and the judges 

 in every State shall be bound thereby, anything in the Consti- 

 tution or laws of any State to the contrary notwithstanding " — are 

 these words so ineffective to carry their meaning that it may still be 

 said that treaties attempting to deal with any subjects not committed 

 to Congress have no operative force within the several States? If 

 so, the failure of the statesmen of America to express their thought 

 would be without a parallel in history. But it is not so. The lan- 

 guage is clear; if not the contemporary intention of its authors, 

 certainly its contemporory interpretation must control. 



In the debates in the Pennsylvania Convention, James Wilson 

 thus combined a realization of existing conditions, a statement of 

 the remedy to be applied, and an interpretation of the treaty-pro- 

 visions of the Constitution as adequate to that end : 



"The judicial power extends to all cases arising under treaties made, or 

 which shall be made by the United States. I shall not repeat at this time, 

 what has been said with regard to the power of the States to make treaties; 

 it cannot be controverted, that when made, they ought to be observed. But 

 it is highly proper that this regulation should be made, for the truth is, and I 

 am sorry to say it, that in order to prevent the payment of British debts, and 

 from other causes, our treaties have been violated, and violated too by the 

 express laws of several States in the Union. Pennsylvania, to her honor be 

 it spoken, has hitherto done no act of this kind; but it is acknowledged on 

 all sides, that many states in the Union have infringed the treaty; and it is 

 well known that when the minister of the United States made a demand on 

 Lord Carmarthen, of a surrender of the western posts, he told the minister 



