merely for greater caution." This might also have been considered an additional guaranty of the rights of the States, but Mr. Madison in his series had so changed this proposition that it had reference only to the rights reserved to the people. It read: "The exception here or elsewhere in the Constitution made in favor of particular rights shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution, but either as actual limitations of such powers, or as inserted merely for greater caution." The committee reported this amendment in the form in which it was adopted and as it now appears in the ninth amendment: + "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."5

2

4

82. SUITS AGAINST STATES.

In only one case has the Constitution been so construed as to arouse a sufficient number of the States to secure its emendation. This was occasioned by the decision of the Supreme Court that they would entertain suits instituted by individuals against States."

After several preliminary attempts had been made, an amendment passed Congress September 5, 1794, forbidding the judicial power of the United States extending "to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State," and was declared to have been ratified in a message of the President to Congress, dated January 8, 1798. In general, the effect of this amendment has been salutary, and only one effort has been made to annul it."

83. IMPLIED POWERS OF CONGRESS.

In view of the increasing tendency to rely upon the doctrine of implied powers, in 1806, Mr. Clopton of Virginia presented an amendment providing that the necessary and proper

1App., No. 42.

2 App., No. 139.

3 App., Nos. 177, 178.

4 App., No. 229.

In 1864 Mr. Davis proposed an amendment considerably expanding this article. App., No. 10390.

6 Considered more fully, ante, par. 76.

'App., No. 321.

8 App., No. 1573. Proposed in 1883. See ante, par. 76.

1

clause of section 8, Article I, in regard to the powers granted to Congress, "shall be construed so as to comprehend only such laws as shall have a natural connection with and immediate relation to the powers enumerated in the said section, or to such other powers as are expressly vested by the Constitution in the Government of the United States, or in any department or office thereof." No further attempt was made to amend the Constitution in regard to the division of powers until some twenty-three years later. In December, 1829, Mr. Hall of North Carolina introduced a resolution in the House calling for the appointment of a select committee to "inquire into the expediency of amending the Constitution so as to define more clearly the separation between the powers delegated to the Government of the United States and those retained by the people, or delegated to the State governments."2 The House refused to agree to the resolution. This was just previous to the nullification by South Carolina, but the proposition may have been prompted by a desire to settle the question of a protective tariff. On January 9, 1833, Congress received an application from the State of Georgia for the call of a constitutional convention to amend the Constitution.3 In the call some thirteen particulars were enumerated in which the resolutions declared the experiences of the past had clearly proved that the Constitution required amendment.

The first two of these were as follows: First, "That the powers delegated to the General Government, and the right reserved to the States or to the people may be more distinctly defined," and the second, "That the power of coercion by the General Government over the States, and the right of a State to resist an unconstitutional act of Congress may be determined." There is no occasion to look far to discover the events which suggested these propositions. Obviously they were, first the nullification of South Carolina, which was still

1 App., No. 377.

2 App., No. 599.

3 Alabama also made application, and South Carolina called for a convention of the States. See post, par. 177.

4 App., Nos. 613,614. The preamble declared that "there exist many controversies grow. ing out of the cases in which Congress claims to act under construction or implied pow. ers, out of the disposition of Congress to act under assumed powers, and out of the right of jurisdiction either claimed or exercised by the Supreme Court, all of which tend to diminish the affection of the people for their own Government," etc., "to a dissolution of our happy Union, and a severance of the States into hostile communities, each regarding and acting toward each other with the bitterest enmity."

in its height, for the President's special message on the situa tion was not sent to Congress until a week later; and second, Georgia's own troubles with the Federal judiciary over the Indian land question. Nothing, however, came of the appli cation; it was simply received and tabled. In 1864 Mr. Davis proposed, as one of the series of amendments to be submitted to a convention of the States, an article which provided that "in giving construction to the Constitution," in regard to "all rights, liberties, or privileges assured by it to the people, or powers reserved to the States, and all denial, restriction, or limitation of powers to the United States, the Federal Government, or any of its officers," this rule shall be inflexibly adhered to, namely, "that its particular or express language shall not be abrogated, impaired, or in any way affected by any of its general language or provision, or by any implica tions resulting from it.""

84. PERFORMANCE OF NATIONAL FUNCTIONS BY THE STATES.

The extreme jealousy with which the rights of the States were guarded can be seen by the character of an amendment proposed by the ratifying convention of South Carolina. This amendment declared that "Whereas it is essential to the pres ervation of the rights reserved to the several States, and the freedom of the people under the operation of a general government, that the right of prescribing the manner, time, and place of holding the election to the Federal Legislature should be forever inseparably annexed to the sovereignty of the sev eral States: This convention doth declare that the same ought to remain, to all posterity, a perpetual and fundamental right in the local government, exclusive of the interference of the General Government, except in cases where the legislature of the States shall refuse or neglect to perform and fulfill the same according to the terms of the said Constitution."3

It was not until 1860 that there was presented another amendment that can be properly classified under this head. Mr. Hindman of Arkansas included in the series of amend. ments introduced by him on the 12th of December, as a solu tion of the question of the hour, an article which stipulated that "all Federal officers exercising their functions within the

2

See ante, par. 77.

App., No. 1039p. For other articles of this series, see post, par. 103.
App., No. 10.

limits of the States" shall be appointed by State authority.1 But this proposition came to naught; like all the others presented at this time it failed to meet the difficulty. In 1865 two resolutions were proposed to amend the ninth section of the first article which has reference to the powers denied the United States Government. In what particulars can not be stated, for, unfortunately, the text is not given, but probably they contemplated extending the power of the central Government. A proposition the converse of that brought forward by South Carolina was prepared by Mr. Hibbard of New Hampshire, December 9, 1872. It authorized Congress to fix a uniform day for holding State elections. This amendment was probably suggested by a sense of the desirableness of such a change, and by the belief that it could not be secured without a constitutional requirement. The States have, however, gradually come to adopt for their election the day set by Congress for the national elections. There are still several exceptions."

85. GUARANTY OF THE STATE GOVERNMENT.

In addition to the guaranty contained in the Constitution, the ratifying convention of Rhode Island recommended as an amendment that "the United States shall guarantee to each State its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by the Constitution expressly delegated to the United States."5 Rhode Island had been led to ratify the Constitution in part by the apprehension that the threat which had been made to divide her territory among her neighbors might be carried into effect. Now that she had joined the Union, she naturally desired a constitutional guaranty that her integrity should be maintained, for she fully realized that as the smallest of the States of the Union, she was practically helpless against her larger and more powerful sisters. No other amendment of a similar character appears to have been presented until ninety years later. In 1880 Mr. Acklen of Louisiana proposed an amendment guaranteeing not App., No. 811.

2 Mr. Stevens of Pennsylvania, App., No. 1042, and Mr. Benjamin of Missouri, App., No. 1062.

App., No. 1355. No. 1514 also provided that the first Tuesday after the first Monday in November in each year for the Presidential election should be fixed for the election for President and Vice-President, members of Congress, and State and county officers.

4 Notably Vermont, Rhode Island, Oregon, Arkansas, Florida, and Georgia.

5 App., No. 104.

only the integrity of the Union, but also the right of the States to "enforce their own local laws for their individual government by and through their own self chosen and elected representatives and officials," without interference by the Federal Government. This was intended to check the growing tendency toward centralization.2

There have been two resolutions-the one to explain, the other to extend the power conferred upon the Federal Government by Article IV, section 4, of the Constitution, which provides that "The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the legisa. lature, or of the executive (when the legislature can not be convened), against domestic violence." The first of these was presented by Mr. Florence of Pennsylvania, in 1861.3 One of the series of articles introduced by him at this time declared that the regulation of slavery within its limits was exclusively the right of each State, and that the Constitution shall never be altered or amended to impair this right of each State without its consent; it, however, stipulated that this article shall not be construed to absolve the United States Government from rendering assistance to suppress insurrection or domestic violence, as provided in the Constitution. This proviso was doubtless suggested to meet the case of a State calling upon the officers of the General Government to assist in quelling a slave insurrection; otherwise they might refuse to render assistance on the ground that the regulation of slavery was exclusively the right of each State.

The second resolution, proposed by Mr. Drake of Missouri, in 1870, authorized the United States to protect "each State against domestic violence whenever it shall be shown to the

1App., No. 1509.

2 The preamble to this resolution declares that the "growing tendency to the centralization of power in the Federal Government has awakened throughout the country a just fear that in the near future the perpetuity of this Union may again be imperiled by internal commotion," etc., "thereby wrecking the peace and prosperity of the Republic and breaking down the doctrines of perpetual union of the States finally and fully settled by the war, as well as infringing upon that home rule of the States guaranteed by the Con stitution." The right of local self-government belonging to the people of each State is, in eleven of the older States, declared a constitutional right which the National Government can never infringe, viz, New Hampshire, Massachusetts, Vermont, Maryland, Virginia, West Virginia, North Carolina, Missouri, Texas, Colorado, and Georgia. Stimson, American Statute Law, par. 193.

3 App., No. 878.