reconstruction of governments in those States. There can be no question, however, but that in doing so an interpretation was given to that clause which it is very difficult, upon strict principles of construction, to justify. Practical exigencies may have necessitated the federal authority that was exercised, but that violence was done to the meaning of this clause must be admitted. A fair interpretation of this clause would have given to the Federal Government at the most nothing more than the right to assist the citizens of the several States in establishing and maintaining governments republican in form and loyal to the Union. When this clause was discussed in the Constitutional Convention of 1787 it was explained by one member that its object was "merely to secure the States against dangerous commotions, insurrections, and rebellions;" and Madison, writing in the "Federalist," said: "It may possibly be asked what need there could be of such a precaution, and whether it may not become a pretext for alteration in the state governments without the concurrence of the States themselves. These questions admit of ready answers. If the interposition of the General Government should not be needed, the provision for such an event will be a harmless superfluity only in the Constitution. But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers? To the second question it may be answered, that if the General Government should interpose by virtue of this constitutional authority, it will be of course bound to pursue the authority. But

the authority extends no further than a guaranty of a republican form of government, which supposes a preëxisting government of the form which is to be guaranteed. As long, therefore, as the existing republican forms are continued by the States, they are guaranteed by the federal Constitution. Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for anti-republican constitutions; a restriction, which, it is presumed, will hardly be considered as a grievance."

Instead, however, of guaranteeing existing governments in the Southern States, or of assisting their citizens in establishing republican governments, the Federal Government, in pursuance of the various Reconstruction Acts passed by Congress, went on itself to assume the practical control of the establishment of new governments which they imposed upon the States against the will of the great bulk of their citiFurthermore, Congress even then refused to admit the States to a full enjoyment of constitutional rights until they had amended their constitutions in certain specific ways, and ratified the Fourteenth and Fifteenth Amendments to the federal Constitution. In so doing, not only was violence done to the guaranty clause, but the States in question were deprived of that equality with the other States of the Union to which they were constitutionally entitled.

zens.

1 Italics our own.

CHAPTER VII

FEDERAL AND STATE AUTONOMY

THE general principle governing the exercise of governmental powers in the American State is that the powers of the Federal Government and those of the individual States shall be kept as distinct and independent as possible. Thus, as differing from almost all, if not all, of the other federal States of the world, there is provided in the American State a complete governmental machinery fully equipped with its own officials for the exercise of the powers of the Central Government, and, distinct therefrom, an equally complete governmental machinery in each of the constituent Commonwealths for the performance of their several functions.

This separation of the federal and state authorities and magistracies is maintained by the enforcement of the following rules:

First, no individual Commonwealth is permitted in any way to interfere with the operation of a federal governmental organ when operating within its ⚫nstitutional province; nor, on the other hand, may the United States interfere in any way with the exercise by a State of any one of its constitutional powers.

When, however, there is an apparent conflict of powers, the conflict, as we have already learned, is considered, in the last instance, by the federal Supreme Court; and where the conflict is shown to be real, the State has to yield to the United States.

Secondly, it is held that though it is constitutional for the United States to permit or even to request a state official to perform a federal service, such state official cannot be compelled to do so. The same is true as to the performance by a federal official of a state duty. The reason for this rule has been declared to be that otherwise it would be theoretically possible for the one government so to burden with its own duties the officials of the other government as seriously to interfere with the proper performance by those officials of the duties laid upon them by their own governments.

The

That a State may not interfere with a federal agency was settled once for all by the decision of the Supreme Court in McCulloch v. Maryland. This case was all the stronger in that the federal agency, with whose activity it was alleged that Maryland had attempted to interfere by taxing it, was not an agency absolutely essential to the National Government nor expressly provided for by the Constitution. power to establish a National Bank was at most only an implied one, and, in fact, its constitutionality was very widely denied, and years after this, a bill providing for the establishment by the National Government of a similar institution was vetoed by President Jackson upon the ground of its unconstitutionality. But in this case Maryland had not only denied the

constitutionality of the bank but had taken the position that, even were it constitutional, she had, under the general power reserved to her of taxing all property situated within her territorial limits, the right to tax such branches of the bank as might be located within her borders. Thus, in this case, the State of Maryland did not claim that she might directly and deliberately interfere with the operation of a federal law, but that the exercise by her of an otherwise legitimate authority could not be declared unconstitutional simply upon the ground that, indirectly, or by remote possibility, its effect was, or might be, to interfere with the exercise of a legitimate federal power. In other words, the State took the ground that, though, as occupying spheres of authority distinct from that of the Union, the States might not directly interfere with the exercise of the constitutional powers of the General Government, yet, while acting within their reserved spheres of authority, the States were as independent and sovereign as was the Union while operating within its constitutional sphere; and that, therefore, their direct interests, within such spheres, might not properly be subordinated to the merely indirect interests of the Union. This position the Supreme Court declared an invalid one. The reasoning of Marshall, who rendered the opinion, was as follows: "The sovereignty of a State," he declared, "extends to everything which exists by its own authority, or is introduced by its permission; but does it exted to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstra