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guaranteed in the written constitutions of the respective States. It was to the States the people looked for these guarantees. But they wished to make assurance doubly sure, and they therefore also limited the new National Government in these directions. The new Constitution was a written instrument intended to serve as a fundamental law for the new government which it created; and therefore it was to that government, and to it alone (unless otherwise expressly stated), that all of its provisions and restrictions apply. Its limitations, therefore, rest only on the Federal Government. For example, "No bill of attainder or ex post facto law shall be passed." This prohibits the General Government, but not the States, from passing such enactments. To prohibit the States from passing such measures it was necessary that the Constitution should say in addition, as was done in the next section: "No State shall pass a bill of attainder or ex post facto law. The rule of construction is thus summarized by one of the greatest of American jurists:


"To state the rule of construction concisely it is this: The restrictions imposed upon government by the Constitution and its amendments are to be understood as restrictions upon the government of the Union except where the States are expressly mentioned."9

This Federal System, a Nation made by a union of States, provides for a distribution of powers between the two governments, State and National. The constitutional powers to be exercised in America are classified according to this distribution. The classification is as follows:

1 Constitution, Art. I., Sec. 9, Cl. 3.

Ibid., Sec. 10, Cl. I. Hon. Thomas M. Cooley, Constitutional Law, p. 19.

1. Powers vested in the National Government alone. 2. Powers vested in the State governments alone.

3. Concurrent powers, or those that may be ex- Classification ercised by either State or National Government. of Powers. 4. Powers forbidden to the National Government.

5. Powers forbidden to the States.

6. Powers forbidden to both governments.

In early

1. Powers

the Central Government.

1. The first class of powers are general in their character, such as touch the interest of all the people. days the Central Government was looked upon merely as a "department for foreign affairs." Conferred on The States were to be left free to regulate all their domestic concerns for themselves. Those things that the whole people can attend to for all the parts better than any part can attend to for itself are turned over to the National Government. These are: (a) foreign relations, (b) the regulation of commerce with foreign countries and among the States, (c) the making of peace and war, and the general defence for which an army and navy may be needed, (d) coining money and the regulation of the currency and of weights and measures, (e) the management of the post-office, (f) the regulations concerning naturalization and bankruptcy, (g) the governmental machinery for the departments charged with these purposes.

2. Powers Vested in

the States


2. The powers vested in the States alone are not named in the Constitution. It is not necessary nor possible that they should be; because, as we have seen in considering the limitations on State and National power imposed by the Constitution, the States may do all things from which they are not prohibited by that instrument. In conferring the general powers upon the National Government the people reserved all other powers to the States,-barring those specifically excepted. All unmentioned governmental powers rest where they rested before the adoption of the

The Powers

of the State

and Inherent;

National Government are Delegated and Enumerated.

Constitution, that is, in the States. The powers of the States are original and inherent. Those of the National Government are delegated,-that is, they are enumerated in and defined by the Constitution Are Original creating the Union. The powers of the State those of the 'belonged to it before it entered the Union. It is clear that this is historically true of the original thirteen States; and since this is a Union of equal States, then from the constitutional point of view this must also be held to be true of the later States, even though, as an historical fact, as Territories before becoming States of the Union they exercised no powers of government except what were conferred upon them by the National Government. The powers of the State, then, embrace all that "residuary mass of powers not recited in the Constitution either as belonging to the National Government or as prohibited to the States. If there is a question as to whether a State can exercise a power, the presumption is that it can, unless it can be shown to have been taken away by the Constitution. This preserves local self-government to the people.

3. Concurrent

3. Concurrent Powers are those that may be exercised by both the State and the National Government. It does not follow because a power has been conferred Powers. upon the National Government that it may not also be exercised by the State governments. There are powers that from their very nature both governments must be left to exercise, such as the power of taxation, the promotion of learning, and the encouragement of arts and manufactures. On such subjects two legislative wills may act at the same time over the same persons. The exercise of such powers as are essential to the maintenance of a government, such as the taxing power and the direct control of the citizen through the operation of the courts, must be left to either government. Certain limitations on the taxing power are imposed on both governments.


Neither government can tax exports from any State.' And since "the power to tax involves the power to detroy," ' no State, except by the consent of Congress, may tax any corporation or other agency created for Federal purposes, or any act done under Federal authority; nor shall the National Government tax any State, its agency, or its property. Neither government, by the use of the taxing power, shall be able to destroy, or prevent the effective operation of, the other. In cases of conflict of authority as to objects of taxation the national authority must prevail and its claims must be satisfied first, though in taxation it is not expected that one power will exclude the operation of the other.

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Power Excludes

Legislation by the States.

There are other powers that are concurrent, not from their nature, but because they are specified as such in the Constitution,-subjects like bankruptcy or matters relating to the election of Senators and Representatives. But if Congress acts on these subjects the State laws relating to them must give way. "It is not the mere The Exercise existence of a national power, but its exercise, of a National which is incompatible with the exercise of the same power by the States. The Constitution says: "Congress shall have power to establish uniform laws on the subject of bankruptcies. Congress is permitted but is not commanded by the Constitution to exercise such power. If it does not exercise the power, any State may pass its own bankrupt laws; but if Congress chooses to exercise this power its act excludes all others; that is, all State acts of bankruptcy fall. State legislation takes effect only in the absence of Federal legislation.

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4. The fourth class of powers, those forbidden to the

1 Constitution, Art. I., Secs. 9 and 10.

Supreme Court, McCulloch vs. Maryland, 1819.

'Cooley, Constitutional Law, p. 35; Sturgis vs. Crowninshield. Art. I., Sec. 8, Cl. 4.

National Government, are, for the most part, included in the first ten amendments.' The chief of these, not also forbidden to the States, are as follows:

4. Prohibi

tions on

the National

Government. (a) The writ of habeas corpus shall not be suspended except when the public safety may require it. (b) No capitation or direct tax shall be laid, except in proportion to the population.

(c) In commercial regulations no preference shall be given to the ports of one State over those of another.

(d) No money shall be drawn from the public treasury but in consequence of appropriations made by law.

(e) No law shall be passed establishing or prohibiting any religion, or abridging freedom of speech or of the press, or of public meeting or of bearing arms.

(f) No religious test shall be required as a qualification for any office under the United States.

(g) No person shall be tried for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in a military or naval service; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall any one be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

(h) In all criminal prosecutions the right of trial by jury in the district wherein the crime shall have been committed shall not be denied the accused, who shall be informed of the nature and cause of the accusation, be confronted by the witnesses against him, and have compulsory process for obtaining witnesses in his favor, and have assistance of counsel for his defence.

(i) In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re

1 See also Art. I., Sec. 9, of the Constitution.

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