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The Supremacy of Federal Law

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"This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land." So runs the federal Constitution, apparently as clear as a statement of law can be, leaves unsettled the question as to the power that shall decide what laws of the United States are duly made in pursuance of the provisions of the Constitution and what state laws are in conflict with the superior law. This question involves the very nature of the federal Union, and for more than half a century the famous controversy over states' rights raged around it. Happily, however, it is now definitely settled, and its leading features are of historical interest only. Federal law is supreme; and, in the last instance, the Supreme Court of the United States is the final interpreter of that law. The decisions of this Court are binding on Congress, the states, and private persons.

The application of this principle may be illustrated by two cases. Congress provided by law that when any civil suit or criminal prosecution was begun against a federal revenue officer in any court of a state,2 the case could be immediately removed into the federal courts. A federal revenue officer, in the discharge of his duty, killed a man in Tennessee, and his case, against the protest of the state, was removed to a federal court in due form. In discussing the constitutionality of this law, Mr. Justice Strong said of the federal government:

"It can act only through its officers and agents, and they must act within the states. If, when thus acting, and within the scope of their authority, these officers can be arrested and brought to trial in a state court for an alleged offence against the law of the state, yet warranted by the federal authority they possess, and if the general government is powerless to interfere at once for their protection, if their protection must be left to the action of the state courts, the operations of the general government may at any time be arrested at the will of one of its members. The legislature of a state may be unfriendly. It may affix pen

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alties to acts done under the immediate direction of the national government and in obedience to its laws. It may deny the authority conferred by those laws. The state court may administer not only the laws of the state, but equally federal law, in such a manner as to paralyze the operations of the government. . . . We do not think such an element of weakness is to be found in the Constitution. . . . No state government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it." 1

Another phase of federal supremacy is illustrated by the case involving the constitutionality of a law passed in New York fixing the hours for workmen in bakeries. The owner of a bakery contended that this law violated the principles of the federal Constitution, and on appeal to the Supreme Court his contention was upheld. Thus the state law was set aside by the superior force of the federal Constitution.2

Interstate Relations

The Constitution secures to the citizens of each state the privileges and immunities of the citizens in the several states, and the federal judiciary defines and enforces them by proper processes. This means that there are certain great legal rights3 necessary to free migration throughout the American empire, to the successful conduct of business and industry, and to the enjoyment of property, which no state may take away from a citizen of another commonwealth coming within its borders. It means also that no state may confer civil rights on its own citizens and at the same time withhold those rights from citizens of other states.' It does not mean, however, that A. of Illinois, on moving into Indiana, may claim all privileges which he

1 Tennessee v. Davis, 100 U. S. R., 257.


* Readings, p. 617; Willoughby, The American Constitutional System, chaps. v-x.

* Readings, p. 146, for judicial interpretation of the rights; see also the lucid discussion of the question in Willoughby, American Constitutional System, pp. 278 ff.

'Civil rights-rights of person and property-should always be distinguished from political rights—the right to vote, hold office, etc.

enjoyed in the former state; he is, on the contrary, entitled only to the rights enjoyed by citizens of the latter state. For example, A. enjoys in Illinois the right to sell cigarettes subject to certain restrictions; in Indiana the sale of cigarettes is forbidden by law; consequently A. cannot claim there the privilege which he had in the former state.

A concrete illustration is afforded by the case of Ward v. Maryland. By a law passed in 1868 the Maryland legislature provided that persons not permanent residents in the state must take out licenses before offering for sale, within certain districts, goods not manufactured within that commonwealth. Ward, the plaintiff in the case, was a resident of New Jersey, and, without procuring a license, he sold within the prohibited district goods not manufactured in Maryland. He was accordingly arrested for violating the law, but set up the contention that the law of Maryland was in contravention of the federal Constitution. When the case came before the Supreme Court of the United States, it was held that the statute in question was "repugnant to the second section of the fourth article of the Constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." 2

To facilitate intercourse among the several states, especially in the transaction of legal business, the Constitution provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. Congress has provided by law the form in which such acts and proceedings shall be authenticated, and has ordered that, when so authenticated, "such faith and credit. shall be given them in every court within the United States as they have by law and usage in the courts of the state from which they are taken." This provision works out in the following way. A. brings suit against B. in a court in Ohio, of which state they are both residents; and, after trial, the Ohio court decides that B. owes A. $1000 and gives judgment accordingly. B. thereupon moves into New York, taking his property along, before it can be attached for the debt. When A. in quest of his money goes after B. into New York, it is not necessary that the case should be

1 Ward v. Maryland, 12 Wallace, 418.

2 Willoughby, op. cit., pp. 280–281; Readings, p. 146.

tried again in order to get the proper process to recover his money. All he has to do is to show in the New York court of proper jurisdiction the authenticated judgment of the Ohio court. B. may contend that the records are not authentic, or the court that rendered the first judgment did not have jurisdiction, but he cannot secure a reopening of the case on its merits.'

The extradition of criminals, long an international practice based on treaty stipulations between independent countries, was carried over into the federal Constitution by the provision that any person charged with crime, fleeing from justice and found in another state, shall be delivered up on demand of the executive authority of the state from which he fled to be removed for trial in the state having jurisdiction of the crime. Congress has amplified the constitutional provision by an act declaring that on the demand from the proper authority, "it shall be the duty of the executive authority of the state" to cause the fugitive to be seized and handed over to the agent of the state making the requisition. The words "it shall be the duty" were interpreted by Chief Justice Taney as merely declaratory of a moral duty, not as mandatory and compulsory. "The act," continued the Justice, "does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the executive of the state; nor is there any clause or provision in the Constitution which arms the government of the United States with this power." The governor of a state is therefore under a moral obligation to surrender criminals, but he may use his discretion in the matter.?

The exact process followed in the rendition of criminals is prescribed in an Act of Congress. In addition most states have statutes providing that an accused person can be arrested upon information of the charge being received, and held until the official demand is made. Let us suppose that A. commits murder in Ohio and escapes into Indiana. As soon as his whereabouts are discovered, the authorities of the place where the offence was committed will request his arrest, and he will be taken into custody by the police or the sheriff of the locality where he is found. A regular charge will then be lodged against him in

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Ohio, if this has not been already done, either by an indictment by grand jury or an affidavit made before a magistrate. Thereupon the governor of Ohio will issue to the governor of Indiana a formal demand for the surrender of A., appending to it a certified copy of the indictment or affidavit. If the governor of Indiana finds that the papers are regular and that A. is a fugitive from Ohio and was in that state at the time that the alleged murder was committed, he will issue an order for his surrender to the agent appointed for that purpose by the governor of Ohio. A. will then be taken to Ohio and tried for the murder.1

Citizenship and the Suffrage

In international law, the term "citizenship" means membership in a nation, but at the time of the formation of our federal Constitution it had received no very definite connotation either in law or popular practice. The Constitution, therefore, speaks of "citizens of the United States" and "citizens of the states"; but a strict usage of the term would require us to speak of citizens of the United States and residents or inhabitants of the states, although this usage might popularly be regarded as a species of pedantry. The state, however, has no power to confer or withhold citizenship, although it may, as will be seen later, confer many civil and political rights on foreigners. The exclusive right to admit aliens to citizenship is given to the federal government by the clause authorizing Congress to make uniform rules of naturalization.

Citizenship in the United States may be acquired by birth or by naturalization. All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are ipso facto citizens of the United States. This is called citizenship by reason of birth in a particular place, i.e., jure soli. To secure civic rights to children born to citizens of the United States residing abroad, Congress has provided by law that all children born out of the limits and jurisdiction of the United States, whose fathers are at the time of their birth citizens thereof, shall be deemed citizens of the United States. The rights of

1 Reference: J. B. Moore, Extradition and Interstate Rendition.
Thayer, Cases on Constitutional Law, Vol. I, p. 459, note.

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