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tent of its
While we may say that our Government is national in the operation of its powers, what shall we say when we 4. In the Ex- look to the extent of its powers? To what extent is our Government the government of Government a national State with truly sovereign powers? Around this question has raged the great controversy in our history.
The idea of a National Government without limit to its powers involves not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation this supremacy is completely vested in the National Legislature. We have no such National Government as that. Among communities united for particular purposes, defined by the Constitution of the Union, this supremacy is vested partly in the general and partly in the local legislatures. In the consolidated nation all local authorities are subordinate to the supreme, and may be controlled, directed, or abolished by it at pleasure. In our Federal State, or Union, the local authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority than the general authority is subject to them within its own sphere. It is the Constitution that defines these respective spheres, and limits, or assigns, the powers to each.
In this aspect our Government cannot be said to be national. That is, it is not fully national, like the government of a unified, consolidated nation. To an extent, it can exercise governmental powers like any nation; to an extent it cannot exercise such powers, but as to these powers it is purely federal. Its governmental scope, or jurisdiction, extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable mass of powers over all other objects.
To understand this more clearly and fully, distinction should be made between sovereignty and supremacy, as these terms are frequently used in discussing our Government. In certain respects supremacy is allowed by the sovereign power to the National Government; in certain other respects Supremacy. this supremacy is allowed to the State governments. Sovereignty was not retained in the States, but a mass of powers were allotted by the sovereign national people to be exercised by the States, and while this allotment continues the States are supreme as to these powers. The sovereign power resides in the people of the United States organized into States. This sovereignty was exercised, or came into being, in 1787, through the then Confederate Congress and the State conventions, in the adoption of the Constitution. It may be exercised again in amending this Constitution, or in making a new one, either through a national convention, properly called, representing all the States, or through the Federal Congress and the State legislatures, as prescribed by the Constitution. In the exercise of this sovereignty in 1787-88, the people delegated certain powers to the National Government and retained certain powers in the States. Neither the National Government nor the State government is sovereign in any particular. The nation only is sovereign; but it is the nation that is sovereign, not the National Government. The National Government and the States, through the State governments, exercise particular powers of sovereignty, permitted by the sovereign power. Sovereignty is unlimited power over the members of the State and all associations of its members. It cannot be divided. It is impossible to have two sovereign authorities within the State. But the sovereign authority may divide the exercise of sovereign powers. It may delegate certain supreme powers to one government and certain other powers to another. Our governments, both State and
National, are limited, not sovereign, and there is a relation between them. But the power of the people of the United States to alter these governments to suit themselves, to redistribute the powers that they now possess, is unlimited and absolute; that is, it is sovereign. The organs through which this sovereignty is expressed, or through which this sovereign power is exercised, are the State and National governments, or it might be the National Convention.
Historically, then, the sovereign people of the United States, acting through the States, created a Constitution. By the Constitution they erected, or recognized, two governments, Federal and State. To both of these two governments they gave supreme powers, the one government to be supreme in certain respects, the other in others. Hamilton explained it in this way:
"That two supreme powers cannot act together is false. They are inconsistent only when they are aimed at each other, or at one indivisible object. The laws of the United States are supreme as to all their proper constitutional objects; the laws of the State are supreme in the same way. These supreme laws may act on different objects without clashing; or they may operate on different parts of the same common object with perfect harmony. The meaning of the maxim that there cannot be two supremes is simply this,-two powers cannot be supreme over each other.'
Webster speaks to the same effect. In replying to Hayne upon the respective powers of the State and Federal governments, Webster says:
"We are all agents of the same supreme power, the people. The General Government and the State government derive their authority from the same source. Neither can in relation to the other be called primary, though one is definite and re
I Hamilton on the Constitution in the New York Convention, June 27, 1788. See Johnston's Representative American Orations, vol. i., p. 50.
stricted and the other is general and residuary. The National Government possesses those powers which it can be shown the people have conferred upon it, and no more. All the rest belong to the State governments, or to the people themselves."
To determine the extent of the national jurisdiction was the purpose of the long historic controversy between the advocates of national power and the advocates of States' rights. One cannot fully understand the nature of our form of government unless he knows, in a measure, the character of that contention and its outcome. The contention involved two questions:
I. What was the nature of the Union under the Constitution as to the relation between the States and the Nation?
If that question was not answered by the Constitution itself, in the first place, it has been answered by our history since. It is now at rest. It is answered in the description we have given of our country as a federal nation. The Union is no longer to be looked upon as a league. It is not a compact between the States, dissoluble at pleasure. It is a nation, one and indivisible. But this does not imply the loss of distinct existence and the right of self-government by the States. "The preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution in all its provisions looks to an indestructible union of indestructible States."
2. Accompanying this question was a second,—What were the limits to the powers of each government?
Two historic views were set forth in answer to this question. It was properly a matter for judicial constitutional construction. But it became the basis of division 'Supreme Court in the case of Texas vs. White, 7 Wall 700. See also p. 323, Bryce, vol. i.
between contending parties in their conflicting views of the Constitution. Each party emphasized one side of the truth, and it is our purpose to notice to what extent our history and our accepted constitutional interpretation have reconciled the two. One view was set forth by Jefferson. This great leader taught, quite rightly, that our Government is a government of limited powers, and that those limits are determined, not by the National Government itself, but by the Constitution. He said:
"I consider the foundations of the Constitution as laid on this ground. All powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States or to the people.' To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power no longer susceptible of any definition. Congress was not given power to provide for the general welfare, but only to lay taxes for that purpose. To consider the 'general welfare' phrase as giving a distinct and independent power to do any act they please which might be for the good of the Union would render all the preceding and subsequent enumeration of powers completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be, in its judgment, for the good of the United States.'
"The government created by the Constitution was not made the exclusive, or final, judge of the extent of the powers delegated to itself; since that would have made its discretion and not the Constitution, the measure of its powers. The construction applied by the General Government to that part of the Constitution which delegates to Congress a power to make all laws that shall be necessary and proper for carrying into execution the powers' vested by the Constitution in the Gov1 Tenth Amendment to the Constitution.
'Jefferson's Opinion on the Constitutionality of the First United States Bank, Writings of Jefferson, Ford's ed., vol. v., p. 284.
This is the well-known expression of the "sweeping clause" of the