CHAPTER I. THE STATES AND THE UNITED STATES. SECTION 1. THE COEXISTING GOVERNMENTS. Within each of the States of the American Union there exist two distinct governments, the general Federal government and the government of the particular individual State. Each of these governments has its three distinct and complete departments-legislative, executive, and judicial, and each has its own proper sphere of activity and power. The most important and the most difficult problem in American Constitutional Law has ever been the securing of a proper and harmonious relation between the two governments. It has been shown in the previous volume how the lack of a true equilibrium between State and Nation brought about the utter failure of the Articles of Confederation, and how the solution of the question nearly proved to be beyond the power of the Constitutional Convention. Nor have the more modern phases of this same general problem proved easy for the judges of our Supreme Court. Certain general principles, however, may be laid down before the consideration of the various aspects of this question are taken up in detail. SECTION 2. NATURE AND SUPREMACY OF THE UNITED STATES GOVERNMENT. The United States government is entirely the creature of the Constitution. It is a government of delegated powers, possessing no authority not, expressly or by implication, granted to it by the instrument which created it.1 Within the sphere of its jurisdiction, however, the government of the United States is supreme, and the States must yield to it. This is expressly provided in the Constitution; 2 "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State, to the contrary notwithstanding." The succeeding clause in the Constitution provides that all legislative, executive and judicial officers, not only of the United States, but also of the several States, shall be bound by oath or affirmation, to support the Constitution of the United States. In the early case of Ware vs. Hylton3 it was decided that a state statute would yield to a treaty made by the United States with a foreign country. SECTION 3. NATURE OF THE STATE GOVERNMENTS. The State governments exist independently of the United States Constitution and possess all such rights as are not, either expressly or by implication, denied to them by this Constitution. This was strongly asserted by Judge Iredell in his decision in Chisholm vs. Georgia, the sixth case ever decided by the Supreme Court of the United States: "A State does not owe its origin to the government of the United States, in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: a voluntary and deliberate choice of the people." "Before the adoption of the Constitution, the States possessed, respectively, all the attributes of sovereignty." The United States Constitution, however, somewhat restricted this general sovereignty of the States, which may now be said to possess an original residuary sovereignty. SECTION 4. DISTRIBUTION OF LEGISLATIVE POWERS BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE GOVERNMENTS OF THE STATES. The greater part of the controversies relative to the respective powers of the governments of the United States, and of the States, have arisen out of the attempted exercise of some legislative power by some State. Legislative powers, in relation to their position under the Constitution of the United States, may be divided into five classes. 1st. Those powers denied by the Constitution both to the United States and to the several States. The powers thus denied to both are the passage of any bill of attainder or ex post facto law, the granting of any title of nobility, or the depriving any person of life, liberty or property without due process of law. The restrictions contained in the last three amendments also restrain both. 2nd. Those powers which the Constitution does not grant to Congress nor prohibit to the States. Here are included those legislative powers which constitute • McLean J. in License Cases, 5 Howard, 504. the main part of the States' legislative jurisdiction. Congress has no more right to exercise a power not granted to it than it has to exercise one denied to it. 3rd. The third class consists of those powers denied by the Constitution to the United States and not prohibited to the States. The particular powers herein included will be considered in Chapter VIII on the Bill of Rights. The legislative powers included within this class are generally denied to the State legislatures by the State Constitutions. 4th. Those powers which the Constitution grants to Congress and prohibits to the States. Here are included most of the great powers of the Federal Government; the authority over foreign affairs; the power of peace or war; the power to lay duties on imports, to coin money and regulate its value. There is comparatively slight possibility for controversy in respect to powers included in any of these four classes of powers, the difficulties have mainly arisen with relation to the fifth and remaining class. 5th. In this class are included those powers which the Constitution grants to the United States government, without denying to the States. Here both governments may legislate, but if the laws of any State conflict with those of the United States, then the former must give way. An illustration of this class is to be found in the subject of Bankruptcy Laws; the power to pass such laws is given to Congress, but is not denied to the States. The Supreme Court has decided that with certain restrictions, bankruptcy laws may be passed by the States, but such laws are superseded by any Federal laws which may be passed on the subject. The extent of the right of the several states to pass bank ruptcy laws is fully discussed by the Supreme Court, in the cases of Sturges vs. Crowninshield,' and Ogden vs. Saunders. The substance of these decisions is to uphold the right of the several states to pass bankruptcy laws, subject to the following restrictions: 1st. Under Section 10 of Article I, of the Constitution, which forbids any State to pass any law imparing the obligation of contracts, no bankruptcy law passed by a State can affect any debt due at the time of the passage of such act. This, however, would not apply to laws merely changing the procedure in bankruptcy, without affecting the substantive right. 2nd. The extra-territorial force of such laws is greatly limited, in general they cannot affect debts owed to non-residents of the State. 3rd. Laws passed by the several States on the subject of bankruptcy are subservient to any laws which Congress may pass on the subject. In the past, Congress has left this field of the law almost entirely to the State legislatures. Previous to the existing law on this subject, passed in 1898, only three national bankruptcy laws had been passed. The first two acts, those of 1802 and 1840, were very short-lived. The third act, passed in 1867 was in force for eleven years. The act of 1898 as amended in 1902 in still is force. SECTION 5. THE POWER OF TAXATION AND THE POWER TO REGULATE COMMERCE. Two legislative powers are of such importance that they are made the subjects of separate chapters. These powers are the power of taxation, and the power to regulate commerce.10 ' 4 Wheaton, 122. 12 Wheaton. 213. • See Chapter VI. |