a power to Congress did not imply a prohibition on the States to exercise the same power. But it has never been supposed that this concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited. The confusion resulting from such a practice would be endless. The principle laid down by the counsel for the plaintiff, in this respect, is undoubtedly correct. Whenever the terms in which a power is granted Congress, or the nature of the power required that it should be exercised exclusively by Congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act on it.” The principle thus stated by Marshall is a simple and rational one, and has never been departed from by the Supreme Court, though that court has at times varied in its judgment whether the nature of a given power is such as to preclude state action in the absence of congressional regulation. In Houston v. Moore32 Justice Johnson says: "The Constitution containing a grant of powers in many instances similar to those already existing in the state governments, and some of those being of vital importance also to state authority and state legislation, it is not to be admitted that the mere grant of such powers in affirmative terms to Congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, unless where the Constitution has expressly, in terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States, or there is a direct repugnancy or incompatibility in the exercise of it by the States. The example of the first class is to be found in the exclusive legislation delegated to Congress over places purchased by the consent of the legislature of the State in which the same shall be, for forts, arsenals, dockyards, etc.; of the second class, the prohibition of a state to coin money or emit bills of credit; of the third class, as this court have 325 Wh. 1; 5 L. ed. 19. already held, the power to establish a uniform rule of naturalization (Chirac v. Chirac, 2 Wh. 259; 4 L. ed. 234) and the delegation of admiralty and maritime jurisdiction (Martin v. Hunter, 1 Wh. 304; 4 L. ed. 97). In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the Eleventh [Tenth?] Amendment of the Constitution, but upon the soundest principles of general reasoning." 34 So, later, in Cooley v. Board of Wardens the court declare: "The grant of commercial power to Congress does not contain any terms which expressly exclude the States from exercising an authority over its subject-matter. If they are excluded it must be because the nature of the power thus granted to Congress requires that a similar authority should not exist in the States.” Still later, in Cardwell v. American River Bridge Co., the court, after quoting a number of cases, say: "These cases illustrate the general doctrine now fully recognized, that the commercial power of Congress is exclusive of state authority only when the subjects upon which it is exerted are national in their character and admit and require uniformity of regulations affecting alike all the States, and that when the subjects within that power are local in their nature or operation, or constitute mere aids to commerce, the States may provide for their regulation and management until Congress intervenes and supersedes their action." Applying this principle the Supreme Court has held that the States may legislate regarding such matters as pilotage, wharves, harbors, etc.; but may not, even though Congress has not acted, take any steps that in effect will operate to hinder or regulate the carrying on of interstate commerce itself. "The power of Congress," the court has said in Brown v. Houston," "is certainly so far exclusive that no State has power to make any law or regula 33 12 How. 299; 13 L. ed. 996. 34 113 U. S. 205; 5 Sup. Ct. Rep. 423; 28 L. ed. 959. tion which will affect the full and unrestrained intercourse and trade between the States, as Congress has left it, or which will impose any discriminating burden or tax upon the citizens or products of other States coming or brought within its jurisdiction. All laws and regulations are restricted by natural freedom to some extent, and where no regulation is imposed by the government which has the exclusive power to regulate, it is an indication of its will that the matter shall be left free. So long as Congress does not pass any law to regulate commerce among the several States, it thereby indicates its will that the commerce shall be free and untrammeled, and any regulation of the subject by the State is repugnant to such freedom." 36 36 For a full discussion of the concurrent legislative powers of the States with reference to interstate and foreign commerce, see chapter XLII. For a further discussion of concurrent powers with reference to the federal control of elections, see chapter XXXVIII. CHAPTER IV. THE SUPREMACY OF FEDERAL AUTHORITY. § 42. Federal Supremacy. The supremacy of the Federal Government, when operating within its constitutional sphere, over all persons and bodies politic within its territorial limits, is no longer open to question. That the extent of this federal constitutional sphere of action is to be determined in the last resort by the federal Supreme Court, is equally well settled. The maintenance of this supremacy unimpaired, while at the same time preserving to the States their proper autonomy and independence of action, has, however, been a difficult task; and, so long as the federal form is retained, this task will continue to tax to the utmost the legal and political abilities of our courts and political bodies. With a quite proper motive those who have controlled the public actions of the States, and those who have guided the activities of the United States, have sought for their respective governments the greatest possible constitutional power and independence, and, therefore, have not hesitated to occupy debatable territory. Thus, without there being any denial of the supremacy of the federal law, when operating within its proper field, or of the right of the federal Supreme Court to determine, in final resort, the extent of that proper field, frequent conflicts have resulted. These conflicts in their many and varied forms furnish much of the material for the present treatise, and they will be severally considered in their logical order. It will not be without value, however, to review in this introductory chapter some of the more important cases in which the supremacy of federal over state law has been generally and broadly asserted. The general statement may be made that, since the beginning of our present Government, in no instance has the federal Supreme Court failed to assert the supremacy of the federal power when its authority has been attacked by the States. In 1793 the court upheld its right under the Constitution, as it then stood, 3 to entertain a suit against the State of Georgia brought by a citizen of another State. The next year the court clearly intimated that it would disregard a state law in conflict with a federal treaty. The supremacy of federal law was again asserted the next year in Penhallow v. Doane, and in 1796 in Ware v. Hylton. In Calder v. Bull the doctrine was definitely asserted, though its application was not found necessary, that a state law in conflict with the federal Constitution would be disregarded. In 1809, in United States v. Peters, this action became necessary and the doctrine was applied, Chief Justice Marshall speaking for the unanimous court, saying: "If the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under these judgments, the Constitution becomes itself a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all, and the people of Pennsylvania, as well as the citizens of every other State, must feel a deep interest in resisting principles so destructive of the Union and in asserting consequences so fatal to themselves. The State of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause." "It will be readily conceived," the great Chief Justice concludes, "that the order which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded." In 1810 and 1812 state laws were again held void by the Supreme Court because in conflict with the federal Constitution." 1 Chisholm v. Georgia, 2 Dall. 419; 1 L. ed. 440. 2 Georgia v. Brailsford, 3 Dall. 1; 1 L. ed. 483. 33 Dall. 54; 1 L. ed. 507. 43 Dall. 199; 1 L. ed. 568, 53 Dall. 386; 1 L. ed. 648. €5 Cr. 115; 3 L. ed. 53. 7 Fletcher v. Peck (6 Cr. 87; 3 L. ed. 162); New Jersey v. Wilson (7 Cr. 164; 3 L. ed. 303). |