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Title: The Essentials of American Constitutional Law

Author: Francis Newton Thorpe

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    The
    Essentials of American
    Constitutional Law

    By

    Francis Newton Thorpe, Ph.D. LL.D.
    (Of the Pennsylvania Bar)
    Professor of Political Science and Constitutional Law
    University of Pittsburgh

    “It is a Constitution we are expounding.”—_John Marshall_

    G. P. Putnam’s Sons
    New York and London
    The Knickerbocker Press




    COPYRIGHT, 1917
    BY
    FRANCIS NEWTON THORPE

    [Illustration]

    Made in the United States of America




                            * AD * JUVENES *
                         * LEGUM * STUDIOSOS *
                               * QUANDO *
                        * ADVOCATOS * JUDICES *
                            * LEGISLATORES *
                               * HODIE *
                          * ANNORUM * AMICOS *
                           * HIC * LIBELLUS *
                             * DEDICATUS *




PREFACE


The principles of American constitutional law are the foundation of
all judicial decisions, and it is (as Marshall observes) “the province
and duty of the Courts to say what the law is.” Judicial decisions,
however, are technical, are handed down by experts, and set forth
authoritatively as results of experience which the junior student of
the law is likely to find difficult, if not incomprehensible. But
to attempt merely to simplify the law, or its interpretation by the
Courts, is likely to result in variation from the original spirit and
purpose of the law: because decisions are essentially a reduction of
questions at issue to a principle, and laws themselves are (or ought to
be) simple, clear, comprehensive, and complete.

For purposes of study or instruction it is necessary to bring the
principle involved in a law (be it the Supreme Law of the Land,—that
is, the Constitution, a Treaty, or an Act of Congress; or a State
Constitution, or an Act of a State Legislature) within the compass of
a principle, or a fundamental, by examination of an issue, or issues,
in which the principle is involved. There must ever be before the Court
the issue _and_ the law, and the law itself may be an issue, in the
American system of government which recognizes the authority of the
Court to pass on the constitutionality of the law.

But principles are not numerous. Possibly in Nature there is but one
basic principle and all our so-called “natural laws” are but aspects
of that principle as the human mind conceives or recognizes it. The
analogy in government permits the assertion that the principles of
constitutional law are few. Possibly they are severally aspects of one
principle: that of sovereignty. To the student of the law, especially
to junior students, principles are matters of memory rather than of
understanding. It is a vigorous and essentially mature mind that can
reduce a complex issue to such simple form as to deduce the principle
on which it rests.

Books on American constitutional law should be simple, comprehensive,
authoritative, and specially adapted to the conditions under which the
subject is pursued. In later years the subject is usually approached
through two books: a treatise on constitutional law, and a book
(collection) of leading cases illustrative of the principles involved.
The tendency is toward bulky volumes. Meanwhile other subjects than
constitutional law,—other branches of the law,—must be pursued.
Multiplicity of subjects is characteristic of the curriculum whether
at Law School or at College or University. Time is brief: studies
are many. The necessary result is concentration upon the essentials
of a subject,—careful isolation of its principles together with
familiarity with authoritative illustrations of their application.
This means a small, compact, authoritative book on the subject. There
are few principles,—there are innumerable applications of them. Values
are twofold,—perception of the principle, and understanding of its
application. The question is not “What principle?” but rather, “What
application?” Thus the student of law may wisely be led to consider, to
weigh, to study the great or the leading application of a principle:
that is, he is properly directed to the important decisions of the
Courts of Law. In America, these decisions are handed down by the
Supreme Courts of States and the Supreme Court of the United States.
From these decisions the principles of our constitutional law may be
derived. Great writers, like Hamilton, Madison, Kent, Story, or Cooley,
must be listened to: but it is the Court of Law that speaks with
authority. Our great writers on constitutional law and our great judges
sitting as Courts of Law practically agree as to what comprise the
principles of our constitutional law.

Whether the principles of the law are reached by induction or by
deduction does not affect the principles. Judicial decisions illustrate
both methods of approach. Stated broadly,—a treatise on constitutional
law sets forth its principles and cites decisions as illustrations of
their application; a collection of cases provides many illustrations
from which the principles may be, or are, deduced. By combining the
treatise and the case-book (and the present volume may be used in
connection with any of the current “Collections” of “Leading Cases”)
the benefits of both methods,—deductive and inductive,—are realized.
Whether the two sorts of books are used together, or in succession,
must depend upon the time, the place, and the importance assigned to
the subject itself. Highly beneficial results have followed when a
first semester has been given to the treatise, and a second to the
cases, whether in a “Collection” (of which there are several of highest
value now in use), or in the original “Reports.”

But constitutional law is more than a technical subject for a Law
School: it is a branch or part of the study of government,—of political
philosophy so-called. It is a branch of “Politics” as Aristotle
uses that word. Hence it is also a “culture” study, entitled to a
respectable place in the curriculum of College or University. But
as such a study, it must also be pursued as are other branches of
philosophy. Whatever part it has as dialectics it also has part in
the interpretation of the government,—of the sovereignty behind that
government,—under which we live. The difficulties of constitutional law
are also the difficulties of government and of philosophy itself.

Shall the college man leave college with a fair knowledge of
the principles of the Supreme Law under which he lives? That is
the question. Whatever book or books or method best brings that
consummation is the best.

            F. N. T.

  _University of Pittsburgh._




CONTENTS


    CHAPTER I.
                                                              PAGE
    THE SUPREME LAW                                              1


    CHAPTER II.

    THE LAW OF LEGISLATIVE POWERS (1)                           18


    CHAPTER III.

    THE LAW OF LEGISLATIVE POWERS (2)                           33


    CHAPTER IV.

    THE LAW OF TAXATION                                         51


    CHAPTER V.

    THE LAW OF COMMERCE                                         63


    CHAPTER VI.

    THE LAW OF CONTRACTS AND PROPERTY                           89


    CHAPTER VII.

    THE LAW OF THE EXECUTIVE POWER                             102


    CHAPTER VIII.

    THE LAW OF JUDICIAL POWER                                  113


    CHAPTER IX.

    THE LAW OF STATE COMITY, TERRITORIES, AND POSSESSIONS      146


    CHAPTER X.

    THE LAW OF LIMITATIONS                                     164


    CHAPTER XI.

    THE LAW OF FUNDAMENTAL RIGHTS                              191


    CHAPTER XII.

    THE LAW OF CITIZENSHIP                                     212


    THE CONSTITUTION OF THE UNITED STATES                      230

    CASES CITED                                                265

    INDEX                                                      273




The Essentials of American

Constitutional Law




CHAPTER I

THE SUPREME LAW


1. The supreme law of the land is the Constitution, and acts of
Congress and treaties made under its authority. By this supreme law
the judges in every State are bound, “anything in the constitution or
laws of any State to the contrary notwithstanding.” All legislative,
executive, and judicial officers both of the United States and of
the several States are bound by oath or affirmation to support the
Constitution, and in our actual government, every administrative
official, State or national, is bound in like manner.[1] Aliens
becoming American citizens by naturalization,—by which they disavow
allegiance to any other sovereignty,—solemnly bind themselves, by
oath or affirmation, to support the Constitution. Every citizen is
impliedly under oath to support the Constitution.

2. Such supremacy of the Constitution is essential to American
sovereignty. The people of the United States ordained and established
this supreme law. They are sovereign. The oath or affirmation to
support it is the formal and sovereign promise of fidelity to that
sovereign, to any sovereign, or quasi-sovereign,—for example, to
England, France, or a State in the American Union. The supreme law of a
sovereignty,—its “constitution,” may be written, like ours, or partly
unwritten, as the British constitution. The essential fact is of the
supremacy of the law because of the sovereignty of the law-giver.

3. The laws of the United States are made by Congress and the
President, or by Congress alone over his veto.[2] The laws of a State
are made by its legislature and governor, or by the legislature
alone over his veto; but Congress, the President, State legislature
and governors are only agents of their sovereign: they possess
_derivative_, not _original_, powers; they _represent_ sovereignty. The
American sovereign is “We the People” of the United States, and for
many purposes, “We the People” of the respective States. All government
in America is representative government. The sovereign makes laws
through its agents or representatives. No other method is possible in
a sovereignty conceived and operating as ours. Whether the law thus
formulated be a constitution,—national or State,—an act of Congress or
of Assembly, it is an expression, on the principle of agency, of the
will of the sovereign. The Convention that frames a constitution is an
agent of sovereignty; the Congress or State Legislature that enacts a
law is an agent of that sovereignty, and that sovereignty prescribes
through its agents the method of ratifying and administering that law.
Through other agents, e. g., the judiciary, that sovereignty interprets
constitutions and laws.[3] Legislative, executive, judicial, and
administrative officials constitute the governmental group, the public
servants to whom, for a term, the sovereign delegates some of its
powers. The members of this group are agents of the sovereign and are
answerable to that sovereign as is the agent to his principal.

4. Madison, in _The Federalist_, states the whole case: A republic is

  a government which derives all its powers directly or indirectly
  from the great body of the people, and is administered by persons
  holding their offices during pleasure, for a limited period, or
  during good behavior. It is essential to such a government that
  it be derived from the great body of the society, not from an
  inconsiderable proportion, or a favored class; otherwise a handful
  of tyrannical nobles, exercising their oppressions by a delegation
  of their powers, might aspire to the rank of republicans, and
  claim for their government the honorable title of republic. It is
  sufficient for such a government that the persons administering
  it be appointed, either directly or indirectly, by the people, and
  that they held their appointments by either of the tenures just
  specified; otherwise every government in the United States, as well
  as every other popular government that has been or can be well
  organized or well executed, would be degraded from the republican
  character.[4]

5. The supreme law of the land represents the will of the people of the
United States for purposes of government. The authority of that law
is derived wholly from the people. They may change or amend it at any
time. They prescribe the procedure for such change or amendment.[5]
Through this supreme law the entire public business is carried on. The
constitution of Massachusetts sets forth the essential fact:

  All power residing originally in the people, and being derived from
  them, the several magistrates and officers of government, vested
  with authority, whether legislative, executive, or judicial, are
  their substitutes and agents, and are at all times accountable to
  them.[6]

The distinction between original and derivative powers made by the
constitution of Massachusetts is true of the supreme law of the United
States.

6. The quality of supremacy involves and implies sovereignty.
Sovereignty is indefinable; is not, strictly speaking, comprehensible.
There is therefore a difference between sovereignty and government.
Sovereignty ordains and establishes a form of government. The form
varies among different peoples and at different times. The Constitution
declares that “The United States guarantees to every State in this
Union a republican form of government.”[7] This form, in America, is
the creation, that is, the creature, of the sovereign, the people. The
essential matter here is of powers and relations, and is made clear by
Chief Justice Marshall: The government of the United States proceeds
directly from the people; is ordained and established in their name
for definite purposes declared in the Preamble to the Constitution,
and the assent of the States in their sovereign capacity is implied in
calling the Convention of 1787, which framed the Constitution, and in
submitting that instrument to the people. The people were at perfect
liberty to accept or to reject it, and their act was final. It required
not the affirmance and could not be negatived by the State governments.
When thus adopted, the Constitution was of complete obligation, and
bound the State sovereignties.[8] But had not the people of America, in
1787, already surrendered all their powers to the State sovereignties
and had nothing more to give? The question whether they may resume
and modify the powers granted to their government cannot be raised in
this country. The people always possess that power and since 1787 they
have exercised it in making seventeen amendments to the Constitution.
The legitimacy of the general government might be doubted had it been
created by the States, for the States, as governments, are creations of
the people, and possess only derivative powers. “The powers delegated
to the State sovereignties were to be exercised by themselves, not by a
distinct and independent sovereignty created by themselves.” The States
were competent to form a league, such as was the Confederation of 1781,

  but when “in order to form a more perfect Union” it was deemed
  necessary to change this alliance into an effective government,
  possessing great and sovereign powers, and acting directly on
  the people, the necessity of referring it to the people, and of
  deriving its powers directly from them, was felt and acknowledged
  by all. The government of the Union is emphatically and truly a
  government of the people. In form and substance it emanates from
  them. Its powers are granted by them and are to be exercised
  directly on them, and for their benefit. This government is
  acknowledged by all to be one of enumerated powers. But the
  question respecting the extent of the powers actually granted is
  perpetually recurring, and will probably continue to arise as long
  as our system shall exist. The government of the Union, though
  limited in its powers, is supreme within its sphere of action.[9]

This supremacy results from the nature of the government.

  It is the government of all; its powers are delegated by all; it
  represents all, and acts for all. Though any one State may be
  willing to control its operations, no State is willing to allow
  others to control them. The nation, on those subjects on which
  it can act, must necessarily bind its component parts. But this
  question is not left to mere reason; the people have in express
  terms decided it by saying, this Constitution and the laws of the
  United States which shall be made in pursuance thereof, and all
  treaties made under its authority, shall be the supreme law of
  the land, and by requiring executive, legislative, judicial (and
  administrative) officers to take the oath of fidelity to it.[10]

7. The question of sovereignty arises here and, as commonly stated, of
national sovereignty and of State sovereignty. The equal vote allowed
each State by the Constitution,[11] “is at once a recognition of the
portion of sovereignty remaining in the individual States, and an
instrument for preserving that residuary sovereignty.”[12] Are there
two sovereignties in America?

  The sovereignty of a State [declares Marshall], extends to
  everything which exists by its authority, or is introduced by its
  permission; but does not extend to these means which are employed
  by Congress to carry into execution powers conferred on that
  body by the people of the United States. These powers are not
  given by the people of a single State, but by the people of the
  United States to a government whose laws, made in pursuance of the
  Constitution, are declared to be supreme. Consequently, the people
  of a single State cannot confer a sovereignty which will extend
  over them.[13]

8. The exercise of the taxing power illustrates the principle here
involved. The power of taxation residing in a State measures the extent
of sovereignty which the people of a single State possess, and can
confer on its government.

  We have a principle (here) [continues Marshall], which leaves the
  power of taxing the people and property of a State unimpaired;
  which leaves to a State the command of all its resources, and which
  places beyond its reach all these powers which are conferred by
  the people of the United States on the government of the Union,
  and all these means which are given for the purpose of carrying
  these powers into execution. We have a principle which is safe for
  the States and safe for the Union.... The people of the United
  States did not design to make their government dependent on the
  States. The government of the Union possesses general powers of
  taxation.... The people of all the States and the States themselves
  are represented in Congress, and by their representatives exercise
  this power. When they tax the chartered institutions of the States,
  they tax their constituents and these taxes must be uniform.[14]
  But when a State taxes the operations of the government of the
  United States, it acts upon institutions created not by their own
  constituents, but by people over whom they claim no control. It
  acts upon the measures of a government created by others, as well
  as themselves; for the benefit of others in common with themselves.
  The difference is that which always exists, and always must exist,
  between the action of the whole on a part, and the action of a
  part on the whole, between the laws of a government declared to
  be supreme, and these of a government which, when in opposition
  to those laws, is not supreme.... In America, the powers of
  sovereignty are divided between the government of the Union and
  those of the States. They are each sovereign with respect to the
  objects committed to the other.[15]

Plainly the essential matter here is one of functions. Neither the
government of the United States nor that of a State is sovereign, for
each possesses only delegated powers. But the powers delegated to
the two governments are not for all purposes the same, or of equal
extent. The two governments have different jurisdictions. Distinctively
federal functions are not State functions, as, for example, the
distinctively Federal functions of coining money, making treaties, and
declaring war.[16] On the other hand, distinctively State functions
are the exercise of the police power of the State,[17] the control of
intrastate commerce, the power of extradition between States,[18]
the validity in a State of the public acts, records, and judicial
proceedings of another State[19] and the right of citizens of each
State to all privileges and immunities of citizens in the several
States.[20]

9. The question of the relative sovereignty of the United States and
that of a State is one of jurisdiction, and is determined by extent
of powers delegated, not of original powers possessed. Delegated
powers are expressed in constitutions and laws. Two governments exist
in America: that of the Union and that of the respective States.
The Constitution of the United States was ordained and established
by the people of the United States for themselves, for their own
government and not for the government of the individual States.[21]
The constitution of a State is made by the people of that State for
themselves only. Sovereignty in America has declared the Constitution
of the United States the supreme law of the land, thus formally
relegating State constitutions and laws to inferior rank,—that is, to a
position of powerlessness when in conflict with the supreme law. Thus
when we speak of two “sovereignties,” or of “residuary sovereignty,”
we really mean “two governments of delegated powers,”—that is, the
State governments and the national government. When we speak of the
two sovereignties, we do not mean _sovereignty_ (which is by nature
indivisible), but _government_ (which is divisible), the creation of
sovereignty and, unlike sovereignty, possesses only delegated powers.

10. For administrative purposes, or, stating the case in other words,
for legal reasons and in harmony with precedents in law, the terms
“sovereignty” and “residuary sovereignty” continue in use among
lawyers, judges, political writers, and civil officials; but government
is not, never was, and in such a country as ours, never can be
sovereignty. American constitutional law is law made by authority of
the sovereign people: the law of the United States is made by Congress,
the authorized legislative agent of the people of the United States:
the law of the State, is made by its Legislature, the authorized
law-making agent of the people of the State. The same essential may be
stated after the manner of Chief Justice Marshall as the law of the
whole: the Nation; the law of the part, the State. Government is the
child of sovereignty.

11. Because of the sovereignty of the people of the United States, and
consequently, of the supremacy of the Constitution, several results
follow:

Madison expresses one of these in _The Federalist_[22]:

  The idea of a national government involves in it 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.

Marshall expresses other results,—

  The general government, though limited as to its objects, is
  supreme with respect to these objects. This principle is a part
  of the Constitution. To this supreme government ample powers are
  confided. With the ample powers confided to this supreme government
  are connected many express and important limitations on the
  sovereignty of the States.[23]

Hamilton, commenting on the Constitution, declares that “the national
and State systems are to be regarded as one whole.”[24] And finally,
although our supreme law does not contain the word “sovereign,” or
“sovereignty,” it implies sovereignty. The crowning illustration of
this principle of implied sovereignty grew out of the acquisition of
Louisiana in 1803. President Jefferson could find no provision of the
Constitution specifically empowering the United States to make the
acquisition, or to incorporate the region into the United States. He
therefore proposed amending the Constitution so as to authorize the
purchase. The President’s doubts of the power of the United States to
acquire Louisiana were weaker than his doubt of power to incorporate
the province into the United States,—that is, to make a foreign
province or provinces inhabited, by an alien people, partakers in
an American Commonwealth. He consulted his Cabinet. Levi Lincoln,
the Attorney-General, was of opinion that to share the privileges
and immunities of the people of the United States with a foreign
population required the consent of the people of the United States, and
he suggested that if a treaty of cession were made, containing such
agreements, it should be put in the form of a change of boundaries
instead of a cession, so as to bring the territory within the United
States. Albert Gallatin, Secretary of Treasury, replied that to him it
appeared: (1) That the United States as a nation have an inherent right
to acquire territory; (2) That whenever that acquisition is by treaty,
the same constituted authorities in which the treaty-making power
is vested have a constitutional right to sanction the acquisition;
and (3) That whenever the territory has become acquired, Congress
have the power either of admitting it into the Union as a new State,
or of annexing it to a State, with the consent of that State, or of
making regulations for the government of such territory.[25] Thus,
according to Gallatin, the United States, by its very nature, has the
undoubted right to acquire, to hold, and to govern territory as a
possession.[26] Twenty-five years after the purchase of Louisiana,
Chief Justice Marshall handed down the decision of the Supreme Court,
that “the Constitution confers absolutely on the government of the
Union the powers of making war and of making treaties; consequently
that government possesses the power of acquiring territory, either
by conquest or treaty.”[27] In this decision, Marshall reasons as
did Gallatin that a nation is by its very nature, sovereign, and
possesses the powers and functions of sovereignty. When the American
nation, a sovereign, created a government of delegated powers, under
the Constitution, it delegated to that government powers adequate to
its purposes as a nation.[28] The essential purpose of sovereignty
is to continue sovereign. The word “sovereign” though not occurring
in the Constitution is necessarily implied as a permanent quality or
mark of the power that ordained and established the Constitution.
Sovereignty cannot be delegated, but a supreme law, such as the
Constitution, necessarily implies a sovereignty that has delegated
the powers expressed or implied in the Constitution itself. In other
words, the Constitution of the United States is the supreme law of
the land because the people of the United States are a sovereign.
Sovereignty alone has original powers; all others are delegated. Thus
the Constitution itself declares that “The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.”[29]

12. American constitutional law is, therefore, the authoritative
formulation, in constitutional, or statutory, or treaty form, of
the will of the sovereign, the people of the United States. This
formulation accords with the powers delegated by that sovereign. The
expression of this delegation of powers in the conduct of the public
business is government. Therefore in America, government is another
word for the delegation of powers,—for limitations of authority.
Sovereignty is unlimited; government is limited. The Constitution of
the United States is the supreme law of the land because through it the
people of the United States,—not the people of any particular State or
group of States,—have delegated larger powers than have the people of
any particular State through its constitution. The whole is greater
than the part. “That the people have an original right to establish for
their future government such principles as, in their opinion, shall
most conduce to their own happiness, is the basis on which the whole
American fabric has been erected.”[30] The exercise of this original
right is an exercise of sovereignty. The result of this exercise,
in America, is the Constitution of the United States which, this
sovereignty declares to be “the supreme law of the land.”[31]




CHAPTER II

THE LAW OF LEGISLATIVE POWERS (1)


13. The organization of the government of the United States reflects
the original and supreme will of the people as they have seen fit to
assign to different departments of that government their respective
powers. “The powers of the Legislature are defined and limited;
and that these limits may not be mistaken, the Constitution is
written.”[32] Thus the Constitution declares that “all legislative
powers _herein granted_” are vested in Congress.[33] The inevitable
conclusion is “no grant, no power.” Congress possesses only delegated
powers. If an issue arises under an act of Congress, there must ever
be the fundamental question of authority for the act. This question
of authority once settled, the act, by the terms of the Constitution
itself, is a part of the supreme law.[34] Rarely is an act of Congress
declared unconstitutional. Legislative experience avoids the enactment
of laws whose constitutionality is doubtful.

14. The general American doctrine is of the separation of delegated
powers, and is commonly set forth in State constitutions.[35] Such
separation of powers is not expressly declared in the Constitution
of the United States; the principle here is of limitation no further
than is necessary for the protection of each department of government.
Fundamentally it is a question of functions. Whatsoever authority
is necessary and proper for a department of government to exercise,
belongs to that department. The separation of powers,—legislative,
executive, judicial,—is a matter of agreement or convention made
by the sovereign. Government is a _unit_, not a tripartite machine
or device. But in order to administer government, and make it, as
the business man would say, “a going concern,” it is conceived and
organized into departments. Sovereignty in America vests legislative
power, so far as the people of the United States have delegated that
power,—in Congress. The Constitution does not specify all the powers
so delegated. Such specification is impossible. Such specification
“could scarcely be embraced by the human mind”; its details “would
partake of the prolixity of a legal code.”[36] The practical procedure
is followed in the Constitution of selecting general—that is, large,
comprehensive powers, or groups of powers, and authorizing Congress to
exercise them. As a matter of practical government, had the American
people chosen to declare in the Constitution that Congress shall have
power to make all laws necessary and proper for the government of
the United States, the grant would be essentially the same as that
made by naming the powers of Congress in that instrument. The powers
delegated to Congress are mentioned chiefly in the eighth section of
the first article of the Constitution. In other parts of the same
article other powers of Congress are declared, such as the power of
each House over its members; to choose a presiding officer; the power
of the Representatives to impeach; of the Senators to convict,—or try
impeachments, and the respective powers of the Houses, under some
circumstances, to elect a Vice-President, or a President,—and other
powers, as of proposing amendments.[37]

15. The powers of Congress, delegated to it as a whole, or to its
respective Houses, and largely regulative of congressional membership
and procedure, may be described as necessary parliamentary powers,
excepting the powers of the respective Houses in the selection of
President and Vice-President. Parliamentary powers are functions
essential to the efficiency of a legislative body, and they were
worked out, largely, before and during colonial times. Such
parliamentary functions were exercised by the British Parliament and by
State Legislatures prior to the making of the Constitution. Indeed, the
provisions respecting such powers, in the State constitutions from 1776
to 1787, were the immediate precedents for them in the Constitution
of the United States.[38] But when we speak of the legislative
powers vested in Congress, we do not mean, commonly, these strictly
parliamentary powers; rather do we mean another group or class of
powers included under such headings as “taxation,” “money,” “commerce,”
“banking,” “the army,” “the navy,” “territory,” and others of notable
rank. Such powers as those indicate (or seem to indicate), a larger
delegation of authority to Congress than its authority to regulate its
membership. Whatever may be thought of the relative rank of the powers
of Congress, all emanate from the same source, “the people of the
United States.”

16. In determining the nature and extent of these powers, we are aided
by the Constitution itself which sets limitations. Thus,

  all duties, imposts, and excises shall be uniform throughout the
  United States.[39] The privilege of the writ of _habeas corpus_
  shall not be suspended unless when in cases of rebellion or
  invasion the public safety may require it.[40] No bill of attainder
  or _ex post facto_ law shall be passed.[41] No tax or duty shall be
  laid on articles exported from any State.[42] No preference shall
  be given by any regulation of commerce or revenue to the ports of
  one State over these of another; nor shall vessels bound to or from
  one State be obliged to enter, clear, or pay duties in another.[43]
  No money shall be drawn from the treasury but in consequence of
  appropriations made by law; and a regular statement and account
  of the receipts and expenditures of all public money shall be
  published from time to time.[44]

In addition to these limitations, there are limitations set forth in
the first ten, in the thirteenth, fourteenth, and fifteenth amendments.
These amendments, in the aggregate, deny to Congress authority to
violate what we commonly designate as fundamental rights. In other
words, the people of the United States have given Congress no power
whatever to imperil these rights: they are excepted out of the
government of the United States.[45]

17. In the several States a like limitation of the powers of the
Legislature is made in the constitutions. A typical statement of this
limitation may be found in the constitution of Pennsylvania, in the
last clause of the Declaration of Rights:

  To guard against transgressions of the high powers which we
  (“the people of the Commonwealth”) have delegated, we declare
  that everything in this article (“the Declaration of Rights”) is
  excepted out of the general powers of government and shall forever
  remain inviolate.[46]

The discrimination here is between government and sovereignty by means
of a clear limitation or denial of powers. Thus the carefully guarded
fundamental rights are sovereign, not governmental rights. That the
sovereign has the right or power to delegate any of these fundamental
rights, or the control over them is a question in political science.
That the sovereign, in the modern republic, has not so delegated them,
is indisputable. Yet, in 1913 the people of the United States ratified
the Sixteenth Amendment, namely, that “The Congress shall have power to
lay and collect taxes on incomes from whatever source derived, without
apportionment among the several States and without regard to any census
or enumeration.”[47] This amendment more nearly identifies government
with sovereignty than any other in the Constitution. It removes
limitations on the power of Congress with respect to what is commonly
called “direct taxation.” It makes Congress practically sovereign in
its power to impose such taxation and to collect such taxes. It does
not require that direct taxes, like indirect taxes, shall be “uniform
throughout the United States.” It is the first departure in America
from the doctrine of limited government.[48]

18. Of the powers delegated to Congress by the American people it may
be said that, save as excepted by the silence of the Constitution,
or by positive limitation, they are universal and affirmative. Their
extent as well as their nature are made known by interpretation,—that
is, through the judiciary.[49] Judicial interpretation must be
distinguished from economic, industrial, political, or even moral
interpretation. The Constitution provides only for judicial
interpretation.[50] The American people have vested legislative powers
in Congress, and the exercise of them by Congress must be measured
by the terms of the grant.[51] Thus far the supreme test of the
constitutional exercise of these powers is to compare the particular
act of Congress with the Constitution. Shall the act overrule the
Constitution, or shall the Constitution overrule the act? This is
the final test of congressional exercise of powers delegated; it
is the essential measure of federal legislation. Practically it
is congressional legislation which, sooner or later, brings out
clearly,—or at least as clearly as the government of the United
States can bring out,—the real nature of that government. Thus it is
congressional legislation which, as tested in the courts of law, brings
into view the implied and inherent powers of the federal government;
the relations of that government with the States, and the powers of
that government as to territories and outlying possessions.[52] So,
too, it is congressional legislation that determines the objects and
the extent of taxation, both direct and indirect; that regulates
commerce, coins money, and fixes its value; affords equal protection
to citizens, and applies the police power of the United States. It is
congressional legislation which largely determines the jurisdiction
of federal courts and assigns duties and powers to the President.[53]
In brief, the legislative powers vested in Congress reflect the
convictions of the people of the United States of the eighteenth
century, when the trend of political thought was to dethrone kings and
to enthrone legislatures, with basic regard for individualism. A like
tendency and regard are discernible in the State constitutions of that
period. The American people did not create an omnipotent Congress,
but they created a Congress having few limitations and these they
practically nullified by the “sweeping clause” which empowers Congress
“to make all laws which shall be necessary and proper for carrying
into execution,” the powers granted, “and all other powers vested by
this Constitution in the government of the United States, or in any
department or officer thereof.”[54]

19. The phrase “necessary and proper” practically includes all the
purposes of government, and these the Constitution itself sets forth, as

    To form a more perfect Union,
    To establish justice,
    To insure domestic tranquillity,
    To provide for the common defense,
    To promote the general welfare,
    To secure the blessings of liberty

to themselves (“the people of the United States”) and their
posterity.[55]

This exercise of power by Congress is essentially _political_, and
Congress alone is judge of “the choice of means and is empowered to
use any means which are in fact conducive to the exercise of a power
granted by the Constitution.”[56] This conclusion is inevitable. A
legislative body could exist on no other principle. Thus it follows
that necessity is supremacy, in the case of congressional legislation.
To any understanding of American constitutional law, comprehension of
this principle is fundamental.

20. May Congress abuse its powers? Possibly. The remedy is through
popular election of members of either House, and repeal of the laws
which—even though their constitutionality be sustained by the courts,
may, in the judgment of the people, transcend limits popularly supposed
to be placed on Congress. Thus there are two checks on congressional
legislation: the courts of law and the votes of the people. It follows
that the American sovereign—the people—may by their votes approve or
condemn congressional legislation—approval or condemnation resulting in
a continuance or a change of membership of Congress, in conformity to
the relative strength of political parties. It is here that part of the
unwritten constitution is disclosed. The written Constitution contains
no reference to political parties, but actual government in the United
States is by and through political parties who, as organized agencies
of the public mind, give expression, in large measure, to the unwritten
constitution. Interpretation of the Constitution, and of course, of
the powers of Congress, is largely interpretation by political parties.

21. Two interpretations of the Constitution have evolved in America,
the strict, or literal, commonly called the Jeffersonian, and the
liberal, or interpretation according to the spirit of the Constitution,
commonly called the Hamiltonian. Chief Justice Marshall was a
disciple of Hamilton and enthroned his ideas in the decisions of the
Supreme Court for thirty years, and these the first thirty years of
the existence of the Court. Later judges, whatever their politics,
have rarely departed from the course of interpretation laid down by
Marshall. To what extent the political convictions of a judge determine
his judicial decisions, and to what extent party doctrines find
utterance in the decisions of courts of law are matters of opinion
quite as diverse as the men who hold them. Yet, in order to understand
American constitutional law it is necessary also to be familiar with
American political and constitutional history. Without that history,
that law lacks background and circumstance.[57]

22. In attempting, then, to understand the legislation of Congress,
which is an exercise of delegated powers, it is also necessary to
know the history of the times in which it was enacted. Thus the first
ten amendments were added in response to a quite unanimous demand of
the American people for what they considered at the time, 1789, an
adequate protection of their fundamental rights. The Eleventh Amendment
of 1798 grew out of the unwillingness of the people that a State
should be made defendant in a federal court at the suit of a citizen
of another State; therefore federal jurisdiction in such cases was
denied. The Twelfth Amendment of 1804 was added to remedy a defect in
the Constitution in the method and procedure of choosing the President
and the Vice-President. The Thirteenth, Fourteenth, and Fifteenth
Amendments, of 1865, 1868, and 1870, were added because of the negro
race. The Sixteenth and Seventeenth Amendments, of 1913, were added
after long agitation over direct taxation and the popular election
of senators of the United States, the one essentially an economic,
the other, a political question. The history of the times records how
these amendments were brought about. So too does that history largely
explain the legislation enacted by Congress by authority of these
amendments.[58]

23. The essential fact as to the powers of Congress is of their
limitation. Turning to the Constitution itself, one will find that
it devotes nearly three times as much matter to legislative as to
executive power; and nearly eight times as much matter to legislative
as to judicial power. Doubtless this spatial distribution of powers (or
limitation of powers) tells the whole story. Government is largely an
affair of legislation. Essentially, government is the public business,
controlled and administered for public or general purposes. Government,
in a republic, may be said to express itself in laws. So important
is this expression of the will of the sovereign, constitutional law
consists almost wholly of the interpretation of legislation. This means
that the principles of government are to be learned chiefly from the
judicial decisions in particular cases; and this again means that the
particular law having in due course come before the tribunal, that
law, when tested by the supreme law of the land is sustained, or is
declared to be without authority,—hence it is unconstitutional. In the
final test, all legislation of Congress must stand the strain of this
question: By what authority is this law made? We come then, sooner or
later, in congressional legislation, to the supreme law of the land and
to sovereignty in America,—“We, the people of the United States.”

24. It is a presumption of law, necessary in the conduct of government,
that all acts of Congress are constitutional until pronounced
unconstitutional by a competent judicial tribunal. An issue arising
between parties involves a law. In deciding the issue the tribunal
decides as to the constitutionality of the law, provided its
constitutionality forms part of the issue. Unless the issue of the
constitutionality arises and is before the tribunal, that body can make
no decision respecting the constitutionality of the law. Thus whether
or not the powers exercised by Congress, as expressed in a piece of
legislation—exceed the powers granted to it by the Constitution is a
question which Congress itself is powerless to decide. The Constitution
itself does not so declare; on the other hand it does not provide that
Congress shall be the final judge of its own powers. The principle
regulative of the exercise by Congress of powers delegated to it is
laid down by the Supreme Court:[59] “Let the end be legitimate, let
it be within the scope of the Constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the Constitution,
are constitutional.”




CHAPTER III

THE LAW OF LEGISLATIVE POWERS (II)


25. The powers of Congress, whether expressed or implied, are powers
incident to sovereignty, being essential to the existence of the
government which sovereignty has created. The principle is laid down in
_The Federalist_, that the government of the Union “must possess all
the means and have a right to resort to all the methods of executing
the powers with which it is intrusted.”[60] The immediate comparison
here is between the government of the United States and those of the
States. The federal government must possess powers as adequate for its
purposes as are the powers possessed and exercised by the particular
States. The principle is laid down by Hamilton yet more explicitly:

  A government ought to contain in itself every power requisite to
  the full accomplishment of the objects committed to its care,
  and to the complete execution of the trusts for which it is
  responsible, free from every other control but a regard for the
  public good and to the sense of the people.[61]

This principle applies to both American governments,—that of each
State, and that of the United States. Each within its own jurisdiction
is supreme. This means that the national government possesses powers
adequate to the existence and efficient operation of such a government.
With this principle in mind, the exercise, by Congress, of its
powers becomes reasonably plain. The people of the United States are
a sovereignty; they have ordained and established the Constitution
of the United States. This Constitution is a plan of republican,
that is of representative, government. The powers granted by this
sovereignty to this government are adequate to the ends and purposes
of this government. Whence follows all our constitutional law: for the
constitutional law of the States cannot vary essentially from that
of the United States. The principle here is stated by Chief Justice
Marshall: “The Constitution, when thus adopted, was of complete
obligation, and bound the State sovereignties.”[62]

26. The powers of Congress are derived through this Constitution
and are adequate to the legislative needs of the government thus
created. Here again applies the principle as to proper legislative
powers: “Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the
letter and spirit of the Constitution, are constitutional.” If this
principle be true (and it lies at the basis of government in America),
it seems unnecessary that the Constitution should specify, or enumerate
the powers of Congress. These which are enumerated may not be said
to be in any logical order. Doubtless the qualities of sovereignty
are equal qualities—each essential to the supreme end and purpose of
sovereignty—which end and purpose is to be and to remain sovereignty.

27. But to Congress and to the State Legislatures powers are granted.
Does the grant of powers to Congress extinguish the grant to the State
Legislatures? Here, again, Hamilton states the principle:

  An entire consolidation of the States into one complete sovereignty
  would imply an entire subordination of the parts; and whatever
  powers might remain in them, would be altogether dependent on the
  general will. But as the plan of the Convention (“of 1787”) aims
  only at a partial union or consolidation, the State governments
  would clearly retain all the rights of sovereignty which they
  before had, and which were not, by that act, exclusively delegated
  to the United States. This exclusive delegation, or rather, this
  alienation, of State sovereignty, would only exist in three cases:
  where the Constitution in express terms granted an exclusive
  authority to the Union; where it granted in one instance an
  authority to the Union, and in another prohibited the States from
  exercising the like authority; and where it granted an authority
  to the Union, to which a similar authority in the States would be
  absolutely and totally contradictory and repugnant.[63]

The implication of the extinguishment of the powers of the State
Legislature by the powers of Congress can arise only where exercise of
State authority is “absolutely and totally contradictory and repugnant
to the power delegated to Congress.”[64] Therefore “where the authority
of the States is taken away by _implication_, they may continue to
act until the United States exercise their power, because until such
exercise there can be no incompatibility.”[65] The principle here
laid down is illustrated by laws fixing the standard of weights and
measures; bankruptcies; counterfeiting the coin and securities of the
United States; copyrights and patent rights. If Congress legislates
on these subjects, such legislation excludes State legislation in
conflict with it. In the absence of congressional and in the presence
of State legislation, on these (and some other subjects falling in
the same class) the respective State legislation is supreme within
the jurisdiction of the State.[66] Stated in a different way, this
principle of American constitutional law would read,—the mere grant to
the federal government of power over a subject does not necessarily
extinguish State authority over the same subject. Thus the State has
power by common law, or by statute, to fix a standard of weights and
measures. The issue here is not one merely of authority but of relative
authority. The exercise of authority by Congress is not, by that fact,
prohibition of exercise of authority by a State. This exercise is
radically different from that of legislation on coining money, making
treaties, granting titles of nobility, issuing letters of marque and
reprisal,—or any other subject over which Congress has exclusive, and a
State no jurisdiction. Here the question is one of exclusive, or sole
authority. Thus, State Legislatures have authority to pass bankrupt or
insolvent laws, provided there is no act of Congress, on the subject,
in force establishing a uniform system of bankruptcy conflicting with
the State law, and, further, providing that the State law does not
impair the obligation of contracts.[67]

28. But State insolvent laws apply to contracts within the State
between one of its citizens and a citizen of another State, and they
do not apply to contracts not made within the State. The principle
here is one of jurisdiction: no State has authority outside its
own jurisdiction. Therefore interstate matters are beyond State
jurisdiction and are exclusively under the control of Congress. This
principle is expressed judicially: “Insolvent laws of one State cannot
discharge the contracts of citizens of other States because they have
no extra-territorial operation.”[68]

29. Congress exercises any of its powers as an agent of its sovereign,
the people of the United States. These powers, like those of the
President, or of the federal courts, are expressed or implied; the
government of the United States is “a national government with
sovereign powers, legislative, executive, and judicial.”[69] Because
this government is a sovereign government it possesses the choice of
means to make its sovereignty real. Hence it possesses power to pay the
debts of the United States, to borrow money, to incorporate banks, to
coin money, to make war, and to do whatever acts it considers necessary
and proper, and in such manner as it sees fit,—all acts of sovereignty.
It alone can determine what is a legal tender, what the value of coins,
domestic or foreign (within its jurisdiction) and, in brief it can do
all acts such “as accord with the usage of sovereign governments.” Thus
the national currency may be coin or paper, as Congress shall regulate.
Whatsoever Congress by legislation declares to be a legal tender in
payment of debts between individuals or corporations is thereby a legal
tender, because Congress is “the legislature of a sovereign nation”
and is expressly empowered by the Constitution to enact laws of the
kind.[70] This power is commensurate with the jurisdiction of Congress
in this matter,—a power which absolutely and totally excludes the power
of the several States.

30. As a matter of constitutional law, it must be admitted that,
granting the national sovereignty of the people of the United States,
it must follow that the legislature of this sovereign nation would
possess such power over currency and coinage. That is, the power would
be _implied_ if it were not expressed. It is the office or function
of a supreme national government to legislate for national ends and
purposes.[71]

But the principle of national sovereignty which operates in
Congressional legislation on money, currency, coinage, and legal
tenders, does not nullify the principle of contracts. A lawful
contract between parties that calls for payment of a particular article
with a particular article, be it silver coin, gold coin, national
bank notes, treasury notes, reserve bank issues, or subsidiary coin,
is satisfied only when executed in the terms of the contract. The
obligation of the contract would be impaired if it were executed
otherwise than as the contract itself sets forth.[72]

31. Congress is not under contract to coin money, to pay the debts of
the United States, or to borrow money in any particular way. Duties,
excises, and imports must be _uniform_ throughout the United States,
and this condition is a fundamental limitation. No limitation is placed
by the Constitution on the power of Congress over the currency. This
power is supreme. It is a power which, duly exercised, secures the
existence of sovereignty itself.[73]

A function of sovereignty is performed in the issuing of a bill of
credit, the sovereign power thus pledging its faith, and the thing
issued is designed to circulate as money. The State, or Commonwealth,
in the Union, is not a sovereign for this purpose, as the Constitution
provides.[74] So when a State incorporates a bank, which issues
bills of credit, the act of the bank is not an act of sovereignty,
and the State, though a stockholder in the bank, imparts none of its
sovereignty to the bank. The bank as a corporation, not the State as
an incorporator, is answerable for the obligations of the bank.[75] To
constitute a “bill of credit,” in the meaning of the Constitution, it
must be issued by a State, on the faith of the State and be designed to
circulate as money.[76]

32. Power to provide for the punishment of counterfeiting the
securities and current coin of the United States is specially delegated
to Congress,[77] but it is not denied to the several States. The
power to coin money belongs exclusively to Congress[78] as a mark
and necessary incident of sovereignty, but counterfeiting the coin
constitutes an offense against both the State and the United States.
The uttering of counterfeit coin is a cheat, and the State can protect
its citizens against fraud by exercise of its police power. Such
offenses fall strictly within State jurisdiction. Counterfeiting
debases the coin, throws spurious and base metal, or false securities
into circulation, and is an offense against that constitutional power
which is exclusively authorized to create a currency for public uses.
The offense is against the sovereignty of the nation, and, being a
fraud, it is against the sovereignty of the State. In either case it
imperils sovereignty.[79]

33. The power of Congress to establish post offices and post roads is
not an exclusive power, for the States are not prohibited to legislate
on the same subject. But Congress has unlimited power over it and may
designate what may be included in and what may be excluded from the
mails. This exercise is doubtless of the police power. It does not
follow that congressional establishing and regulation of post offices
and post roads mean that Congress has power to deal with crime or
immorality within a State in order to maintain that it possesses the
power to forbid the use of the mails in aid of the perpetration of
crime and immorality. So a postal law of Congress excluding lottery
tickets from the mail is not an abridgment of the freedom of the press.
Congress, by reason of the nature of its functions, is empowered to
determine what shall and what shall not be carried in the mails, and
the right of freedom of speech does not give the right to injure the
objects or to defeat the purposes which government is ordained and
established to further and protect.[80] But the State, in exercise of
its police power, may undoubtedly protect its citizens from injury
springing out of that intercourse known as the mail service so long as
it is wholly intrastate,—that is, within its jurisdiction.

34. Copyrights and patent rights are privileges granted by Congress for
a term of years and are strictly statutory—for the United States has
no common law. The States may exercise their powers in like manner,
subject to the essential condition that the Constitution is the supreme
law of the land. Copyrights and patent rights are examples of rights
which exist by act of Congress,[81] but the right thus created does not
annul the ordinary police power as put forth in the police regulations
of a State. The person owning or controlling either copyright or
patent right is not thereby empowered to defy the laws of a State as
respecting the sale of the article in which or over which he has the
exclusive right. The article itself may be adjudged injurious to the
public and, therefore, by police regulation, forbidden to be sold or to
be exposed for sale in the State. The patent right prevents others than
the inventor from participating in the fruits of his invention, without
his consent; but the exercise of the right must be in subordination to
the police regulations of the State, otherwise, “a person might with
as much propriety claim a right to commit murder with an instrument,
because he held a patent for a new and useful invention.”[82] It may
be accepted as a principle that “patent laws do not interfere with
the power of a State to pass laws for the protection and security of
its citizens, in their persons and property, or in respect to matters
of internal polity, although such laws may incidentally affect the
profitable use or sale by a patentee of his inventions.”[83]

35. The power of Congress, expressly delegated to it, “to define and
punish piracies and felonies committed on the high seas, and offenses
against the law of nations,” is not exclusive. The States are not
prohibited from legislating on the subject. Offenses committed within
the jurisdiction of a State are punishable by State laws. Such offenses
are punishable by common law. If there is no act of Congress covering
the offense, then the United States has not assumed jurisdiction. But
absence of a specific mention or definition of the offense does not
invalidate a claim of jurisdiction when the result of the offense
is piracy. Piracy is robbery committed within the jurisdiction of
the admiralty,[84] but an offense that effects piracy, though not
technically robbery, is piracy.[85] As piracy is an offence against
the law of nations, and not strictly against domestic municipal law,
it falls within the jurisdiction of the admiralty—a jurisdiction over
which the judicial power of the United States is expressly extended by
the Constitution.[86] This jurisdiction is not exclusive as provided
for by the Constitution. Practically, however, the States do not
legislate on the subject, unless it be to provide for the execution of
their police power over their own waters.

36. The “admiralty jurisdiction” of the United States is co-extensive
with its authority over or on waters, fresh or salt, including the
high seas, the Great Lakes, and rivers and streams commerce over
which it has power to regulate. Thus this jurisdiction is over the
American ship wherever it may be. “Offenses committed on vessels
belonging to citizens of the United States, within their admiralty
jurisdiction (‘that is within navigable waters’) though out of the
territorial limits of the United States, may be judicially considered
when the vessel and parties are brought within their territorial
jurisdiction.”[87]

37. The war power is possessed by Congress exclusively,[88] for
the limitation of the States as to declaring war can be construed
only as an exclusive delegation of this power to the United States.
The exercise of this power is a sovereign act and may consist in a
formal declaration of war, or a formal recognition or declaration
of a state of war. War existing by such regulation, the President,
as commander-in-chief of the army and navy, and of the militia of
the several States when called into the actual service of the United
States, is bound by his oath faithfully to execute his office—which
is to execute the laws of the United States. It is for the President
to determine how to execute his office; that is a political, not a
judicial question. “He must determine what degree of force the crisis
demands.” He must decide the character of the opposing forces, whether
they are belligerents, or of some other character. He may close ports
or declare a blockade of the enemy. He possesses the whole executive
power of the United States. Ratification of his acts though _ex post
facto_ are constitutional,—fundamentally because sovereignty having
vested the executive office in a President, and he having performed
its duties to the best of his ability, refusal to consider his acts as
constitutional would be repudiation by sovereignty of an act which had
been done by its authority.[89]

38. The word “State” in the Constitution refers to a State of the
Union.[90] For while the Constitution was made, “ordained and
established by the people of the United States for themselves,”[91]
it was made for the people of the United States in States. Thus it
follows that over a domain not constituting a State, that is, over a
domain consisting of a ceded district, or a territory, or an outlying
possession, Congress has sole jurisdiction. Only the United States
and the several States possess sovereignty. No State, or a member of
the Union, has jurisdiction over the district and there is no other
American government than Congress to exercise it. “Territory” like
property by common law must have an owner; if it is self-owned and
self-governed, it is sovereign; otherwise it is a subject or possession
of sovereignty. It follows, as to American constitutional law, that
subdivisions of States are wholly within State jurisdiction: Congress
having no jurisdiction over counties or cities other than as, in a
general way over matters, Congressional legislation affects counties
and cities as parts of States throughout the United States.[92] And
unless a State has ceded its jurisdiction over a district within its
borders, it has full authority to levy taxes, to execute its inspection
and other police laws and regulations within that district. Thus Kansas
ceded the Ft. Leavenworth Military Reservation to the United States in
1875, but the deed of cession granted no more than use of the land as
a military post; the State, therefore, could levy and collect taxes
within this area, having never parted with the sovereign right to do
so.[93] And any other powers or rights of the State, over this area,
not explicitly granted to the United States by Kansas in the deed of
cession remain intact in the State; its original jurisdiction as a
State, save as explicitly modified by that deed, remains.

  39. The power of Congress to govern territory, implied in the right
  to acquire it, and given to Congress in the Constitution,[94] to
  whatever other limitation it may be subject, the extent of which
  must be decided as questions arise, does not require that body to
  enact for ceded territory, not made a part of the United States
  by Congressional action, a system of laws which shall include the
  right of trial by jury, and that the Constitution does not, without
  legislation, and of its own force, carry such right to territory so
  situated.[95]

The principle laid down by the Supreme Court recognizes two kinds or
classes of ceded territory: one, “made a part of the United States
by congressional action,” that is, incorporated into the United
States; the other, unincorporated. While congressional authority over
either class is supreme, when the Constitution and laws of the United
States are extended by Congress over a territory, they cannot be
withdrawn,[96] for if the Constitution could be withdrawn directly it
could be nullified indirectly by acts passed inconsistent with it. The
Constitution would thus cease to exist as such and would become of no
greater authority than an ordinary act of Congress.[97] The decision
of the Court as to the power of Congress over territory of the United
States makes Congress absolute in the exercise of its power. The Court
does enumerate the limitations on Congress, in such control, but leaves
each limitation to be determined as the issue involving it shall
arise.[98] The safeguard against congressional absolutism is thus
expressed by the Court:

  There are certain principles of natural justice inherent in the
  Anglo-Saxon character, which need no expression in constitutions
  or statutes to give them effect, or to secure dependencies against
  legislation manifestly hostile to their real interests.[99]




CHAPTER IV

THE LAW OF TAXATION


40. In our system of government [observes the Supreme Court], it is
oftentimes difficult to fix the true boundary between the two systems,
State and federal [and, adopting the words of Chief Justice Marshall,
proceeds],—endeavoring to fix this boundary upon the subject of
taxation, if we measure the power of taxation residing in a State by
the extent of sovereignty which the people of a single State possess,
and can confer on its government,—we have an intelligible standard
applicable to every case to which the power may be applied. We have
a principle which leaves the power of taxing the people and property
unimpaired; which leaves to a State the command of all its resources,
and which places beyond its reach all these powers which are conferred
by the people of the United States on the government of the Union,
and all these means which are given for the purpose of carrying these
powers into execution. We have a principle which is safe for the States
and safe for the Union.[100] We are relieved, as we ought to be, from
clashing sovereignty.

It follows that the powers and functions of the two governments can
be harmonized “only by a wise and forbearing application of this
principle.”[101]

41. A tax is a burden or charge imposed by the legislature on property
or persons to raise money for public purposes.[102] The two essentials
of a good tax are that it is to be laid for a public purpose and by
authority. The exercise of the taxing power not only distinguishes
sovereignty but also the government which sovereignty creates by
delegation of power. But the State cannot exercise taxing power beyond
its jurisdiction,[103] a limitation parallel to the limitation of the
sovereignty of the State, that is, a version (however unphilosophical)
of the idea in the phrase “residuary sovereignty.”[104] But unless
restrained by the federal Constitution the power of Congress as to
mode, form, or extent of taxation is unlimited.

The test here is jurisdiction.[105] Taxation is the correlative of
protection. As the State cannot protect so it cannot tax beyond its
jurisdiction.[106] Thus the person or the property must be within the
jurisdiction of the State to bring either within its taxing power. Tax
laws can have no extra-territorial operation,[107] but there is no
established limit of the taxing power or to the selection of objects to
which it is applicable.[108]

42. A State Legislature may abuse this power, but the Constitution of
the United States was not intended to furnish a corrective for every
abuse of power committed by the State governments. Relief lies wholly
with the electors within the State who, if the State constitution does
not afford security against unjust taxation and unwise legislation, can
both alter the State constitution and elect other legislators.

  So long as the State by its laws, prescribing the mode and
  subjects of taxation, does not entrench upon the legitimate
  authority of the Union, or violate any right recognized, or secured
  by the Constitution of the United States, the (Supreme) Court, as
  between the State and its citizens, can afford no relief against
  State taxation, however unjust, oppressive, or onerous.

The discretion of the State,—that is, of the State Legislature, is
beyond the power of the federal government, or any of its departments,
to supervise or control.[109]

43. The fundamental idea in America is that each government—the State,
the national—possesses powers and functions adequate to its own
ends and purposes. Thus the State has no power to lay a tax on any
constitutional means employed by the government of the Union to execute
its powers, otherwise, by taxation of such means or agencies,—say the
mail, the mint, judicial process, patent rights,—the States might
defeat all the ends of the national government,—a design not intended
by the people of the United States.[110] But this protection of
government is not limited to the United States by limiting the States;
it applies to the States as limiting the United States.

  The sovereign powers vested in the State governments by their
  respective constitutions, remain unaltered and unimpaired, except
  so far as they were granted to the government of the United
  States.[111] As the powers not delegated were reserved to the
  States respectively, or to the people, the government of the
  United States can claim no powers not so delegated, and the powers
  actually granted must be such as are expressly given, or given by
  necessary implication.

In our complex system, the existence of the States in their separate
and independent condition

  is so indispensable, that without them the general government
  itself would disappear from the family of nations.[112] Whence the
  necessary conclusion that the means and instrumentalities employed
  for carrying on the operations of their governments (the State
  governments), for preserving their existence, and fulfilling the
  high and responsible duties assigned to them in the Constitution,
  should be left free and unimpaired, should not be liable to be
  crippled, much less defeated by the taxing power of another
  government, which power acknowledges no limits but the will of the
  legislative body imposing the tax, and more especially, those means
  and instrumentalities which are the creation of their sovereign and
  reserved rights, one of which is the establishment of the judicial
  department, and the appointing of officers to administer the laws.
  Without this power and the exercise of it, no one of the States,
  under the form of government guaranteed by the Constitution, could
  long preserve its existence.[113]

44. One of the reserved powers of the States was to establish a
judicial department.

  All of the thirteen States were in possession of this power, and
  had exercised it at the adoption of the Constitution; and it is
  not pretended that any grant of it to the general government is
  found in that instrument. It is therefore one of the sovereign
  powers vested in the States by their constitutions, which remained
  unaltered and unimpaired, and in respect to which the State is
  as independent of the general government as that government is
  independent of the States. In respect to reserved powers, the State
  is as sovereign and as independent as the general government.[114]

The means and instrumentalities employed by the one government to carry
its powers into operation are as necessary to its self-preservation as
the means and instrumentalities are necessary to the other. Unimpaired
existence is as essential to the one as to the other. There is no
express provision in the Constitution that prohibits the general
government from taxing the means and instrumentalities of the States,
or prohibiting such taxation.

  In both cases the exemption rests upon necessary implication, and
  is upheld by the great law of self-preservation; as any government
  whose means employed in conducting its operations, if subject to
  the control of another and distinct government, can exist only at
  the mercy of that government.[115]

45. This was the constitutional law of the United States as settled in
1870,[116] the case arising in Massachusetts; the plaintiff a judicial
officer of that Commonwealth having brought suit to recover from the
United States Revenue Collector the amount of income tax exacted from
him, it being part of his salary as a judge in that Commonwealth. The
Supreme Court of the United States sustained the plaintiff for reasons
given in the opinion, part of which has been quoted. By parity of
reasoning, as followed in that decision, any act of Congress imposing
a tax on the salary of any State officer, if his office is a means
and instrumentality employed by the State to carry its powers into
operation must be declared unconstitutional. In 1913 the Constitution
was amended so that “The Congress shall have power to lay and collect
taxes on incomes from whatever source derived, without apportionment
among the several States, and without regard to any census or
enumeration.”[117]

Does this amendment increase the taxing power of Congress beyond that
power as possessed prior to 1913 and as limited by the Supreme Court
in its decision in the case of The Collector _v._ Day? If any officer
of a State, executive, legislative, judicial, or administrative,
receives a salary, large or small, (and it forms part of his income) is
it beyond the jurisdiction of the United States as a taxable estate,
despite the explicit power of Congress, in this Sixteenth Amendment “to
lay and collect taxes on incomes, from whatever source derived?” Does
the amendment overrule the decision in The Collector _v._ Day?[118]
Evidently the amendment empowers Congress to levy an income tax wholly
in disregard of the effect of the tax in impairing the “necessary
means and instrumentalities of a State.” Here too the issue is one
of jurisdiction. The person taxed being within the jurisdiction of
the United States has no redress against that jurisdiction more than
has a person, taxed and being within the jurisdiction of a State,
redress against the State. But can the Commonwealth of Massachusetts,
or any other State, imposing an income tax, lay and collect it from
whatever source derived, and that source be the treasury of the United
States,—that income be salary received by a citizen of the State who
also is a federal official, say a federal Judge, or a Collector of
the Revenue, or a United States Marshal, or a Senator of the United
States, or a Congressman, or the President of the United States?[119]

46. In the operations of government, the delegation of authority
by the executive, the legislative, or the judiciary is rare. The
constitutional test, in either case, is purpose and authority. Thus a
municipal corporation is a representative not only of the State, but
is a portion of its governmental power. It is one of its creatures,
made for a specific purpose, to exercise within a limited sphere the
powers of the State. “The action is no less a portion of the sovereign
authority when it is done through the agency of a town or city
corporation.”[120] Thus a tax authorized by the State Legislature, to
be imposed by a municipal corporation is a good tax in law, provided
it is for a public purpose. This is not a delegation of the taxing
power, but is the exercise of it by the Legislature. The municipality
itself has no power to tax, or even to be a municipality, save
by authority of the State, usually by the constitution, vested in
its Legislature. The amount of the tax, the subjects of taxation,
the method of assessment and of collection are wholly within the
discretion of the Legislature. The exemption of churches, schools,
colleges, and charitable institutions may or may not be required by
a State constitution. If this is silent on the subject, the question
is wholly one of legislative discretion. A charitable institution
has no fundamental right to exemption from taxation, as a person
has a fundamental right to “due process of law.”[121] The principle
of exemption from taxation is that taxation of the person or the
property tends to destroy the powers or to impair the efficiency of the
State.[122]

47. A tax must not only be laid by authority but it must be for a
public purpose. Thus any assessment imposed upon persons or property by
the government, State or federal, for the gain, emolument, or advantage
of a private person, or an official, is unconstitutional. The purpose
must be public, as for example, for schools, highways, canals, public
buildings, markets, asylums, jails, or to keep the same in repair and
to use them for public purposes. The Legislature cannot authorize a
town or a county, or any subdivision of the State, to raise money for
other than public purposes and uses. It cannot confer benefits on
individuals, however meritorious, by taxation.[123]

48. Taxes, imposed under the Constitution, have been classed as direct
or indirect,—the direct being apportionable among the States according
to population; the indirect being uniform throughout the United
States.[124]

The Sixteenth Amendment of 1913 abolishes the limitation of
apportionment or enumeration in the imposition and collection of an
income tax. The Income Tax law of October 3, 1913—the first of the kind
enacted by Congress under the amendment—exempted incomes of $3000, or
less, or $4000, or less, as the person taxed may be single or married.
The amount of the exemption is fixed at the discretion of Congress. So
too is the rate of taxation by duties, imposts, and excises, as well as
the inclusion or exclusion of articles subject to them, but Congress
must make such taxes uniform throughout the United States.[125]

The taxing power may be used to encourage or to discourage an
activity, or to destroy it. As thus used, the exercise of the taxing
power, whether by the State or by the United States, may characterize
the policy, or administration of its government. So too if a State
engages in manufacturing, or in any activity or occupation taxable
under federal revenue laws, it is amenable in taxes like a private
person.[126]




CHAPTER V

THE LAW OF COMMERCE


49. The power to regulate commerce belongs to sovereignty. By the
Constitution Congress is empowered “to regulate commerce with
foreign nations, and among the several States, and with the Indian
tribes.”[127] The principle of this regulation, or of the exercise
of the power, is essentially that of taxation: it is a matter of
jurisdiction. “The power of Congress to regulate commerce,” observes
Chief Justice Marshall, in the first American judicial decision on the
subject, “comprehends and warrants every act of national sovereignty
which any other sovereign nation may exercise.”[128]

The enormous powers Congress wields through this clause cannot be fully
defined. The Supreme Court has not defined them. Like sovereignty
itself, the exercise of its essential powers, even when delegated
functionally in government, does not yield to the limits of definition.
The decisions of the Supreme Court are not definitions of the power
over commerce so much as they are definitions of the particular
exercise of the power of Congress within its jurisdiction, with respect
to commerce, by the Constitution.[129] For the States also have
jurisdiction over commerce. Our knowledge of the boundaries of these
two jurisdictions arises from the conflict of laws concerning them.

50. In defining national jurisdiction and State jurisdiction over
commerce, two propositions are fundamental:

(1) The Constitution of the United States is the supreme law of the
land.[130]

(2) It is the province and duty of the judicial department to say what
the law is.[131]

It should be clearly understood that power to regulate commerce is
incident to sovereignty. Government—whatever its form—is a delegation
of power by sovereignty, and of necessity possesses this power of
regulation. The degree or extent of the delegation of the power
to regulate commerce marks unmistakably the jurisdiction of the
government exercising the power. The analogy is in the taxing power.
In our system of dual government—national and State—there are two
jurisdictions. The respective States have power over commerce; the
United States has power to regulate commerce,—each jurisdiction
expressly or impliedly outlined by the Constitution.

51. With slight change in wording, the leading decisions of the Supreme
Court on the power of the United States to lay and collect taxes, and
its decisions on the subject interpretative of the taxing power of the
States, apply, in principle, to their respective powers over commerce:

  If we measure the power of {taxation             }
                             {“regulating commerce”}
residing in a State, by the extent of sovereignty which the people of
a single State possess and can confer on its government, we have an
intelligent standard, applicable to every case to which the power may
be applied. We have a principle which leaves the power of
  {taxing the people and property of the State}
  {“regulating the commerce of the State”     }
unimpaired; which leaves to a State the command of all its resources,
and which places beyond its reach all those powers which are conferred
by the people of the United States on the government of the Union,
and all those means which are given for the purpose of carrying those
powers into execution. We have a principle which is safe for the
States, and safe for the Union. We are relieved, as we ought to be,
from clashing sovereignty; from interfering powers.[132]

52. No evil contributed more to the feebleness of the old Confederation
than its inability to regulate commerce. The mischief being great, the
grant of power to correct the mischief was correspondingly great. This
grant of power to regulate commerce comprehends “all foreign commerce
and all commerce among the States.” As inefficiency was the evil, the
grant of power was to secure efficiency. In construing this grant—the
commerce clause of the Constitution—the large and single purpose is so
to construe as not to impair its efficiency and thus defeat the object
of the grant.[133]

The commerce clause has become the authority for exercising the
enormous powers of the national government as is illustrated, possibly,
by the exercise of power under no other clause. This means that the
United States in exercising this delegated power exercises so vast a
power that it seems to be sovereignty itself. Vast as this power is—and
practically it is incommensurable—it is a delegated, not an original
power of the national government. The scope, purpose, and nature of
this national power to regulate commerce are indicated by the Supreme
Court in its construction of the commerce clause. Here as in the
exercise of the taxing power the test is jurisdiction. The essential
question is, What is the jurisdiction of the United States, what that
of the respective States over commerce?

53. Commerce is intercourse,[134] and comprehends traffic, navigation,
telegraphic intercommunication, and consequently, communication by
telephone, wireless, or signals.[135]

The Constitution empowers Congress to regulate commerce “among the
several States,” an expression which excludes “the completely interior
traffic of a State.” This completely internal commerce is reserved
for the State itself. To whatsoever extent the foreign or interstate
commerce of the United States penetrates a State, it is subject to
regulation by the United States; it is carried on within national
jurisdiction. The power of Congress to regulate commerce within this
jurisdiction is complete in itself and knows no limitations other than
these prescribed in the Constitution. Thus this power to regulate
commerce, though limited to commerce with foreign nations and among the
States, and with the Indian tribes, is plenary as to these objects,
and Congress in exercising this power is commonly spoken of as
“sovereign.”[136] It follows, that as the Constitution is the supreme
law of the land, and the Supreme Court has power to say what the law
is—State laws to regulate commerce, in conflict with national laws,
are unconstitutional. The essential issue, in such conflict, is one of
jurisdiction. And here, the real question is whether the regulation
of commerce by a State is essential to its existence as a State, or
regulation by the United States is essential to its existence as the
United States. Such regulation by a State is known as the exercise of
the police power.[137]

But the United States also possesses police power. The line of
demarcation between the State and the national police power follows
closely, if not precisely, the line of demarcation between State power
and national power to regulate commerce.[138] The State has power to
protect itself,—that is, to guard its people against contagious or
infectious diseases, as is exemplified in laws for the inspection
of foods, for forbidding the pollution of streams, for securing
the accuracy of weights and measures, the peace and good order of
communities, the comfort of the inhabitants,—and, in a word,—to
exercise such authority as, were no such authority exercised, the State
would cease being the State.

54. The power granted to Congress to regulate commerce is not a power
granted to the States; it pertains to the United States only. Therefore
Congress has no power to regulate commerce that is not “with foreign
nations, and among the several States, and with the Indian tribes.”
Practically this deprives the State of police power over foreign and
interstate commerce, and deprives the United States of police power
over commerce that is, as to the State, completely internal. To what
extent a State can protect itself from the entrance of paupers, insane
or diseased persons, is a question for determination by the Courts.
If such persons are “commerce” their entrance is a matter within
the jurisdiction of Congress. But the welfare of the people of the
United States is essentially the welfare of the people of the States,
and Congress, in considering that welfare, avoids possible conflict
with State legislation. Thus the immigration laws—all of which are
national—include, or seek to include, these provisions for inspection
which a State would prescribe, in the exercise of its police power for
the health, safety, and general welfare of its own citizens. But here,
too, a dominant principle prevails;

  The government of the United States, within the scope of
  its powers, operates upon every foot of territory under its
  jurisdiction. It legislates for the whole nation, and is not
  embarrassed by State lines. Its peculiar duty is to protect one
  part of the country from encroachments by another upon the national
  rights which belong to all.[139]

Tested by this principle, any State laws conflicting with national
immigration laws are unconstitutional.

55. The power to regulate commerce among the several States extends to
commercial highways and to agencies employed in such commerce. Thus
waterways capable of navigation and the free and unobstructed use of
them are subjects of congressional legislation under the commerce
clause. From this it follows that Congress legislates concerning these
waterways, their protection, their dredging, the bridges that cross
them, the boats that navigate them, the form, size, construction,
command, and equipment of these boats, the inspection of boilers, the
licensing of officers,—indeed, concerning navigation in its broadest
application under the commerce clause. Vessels engaged in such
commerce are described as “the public property of the nation, and
subject to all the requisite legislation of Congress.”[140]

56. In like manner, the national power to regulate commerce extends
over interstate commerce when carried on by land transportation.
Thus cars on railroads used in interstate commerce must be equipped
with automatic couplers and continuous brakes, and locomotives with
driving-wheel brakes.[141]

To what length this regulation of commerce may be carried by Congress
is unknown, nor can it be determined in advance. The limitations,
if any, are of expediency.[142] Thus in exercise of this vast power
Congress may regulate hours of labor, wages, selection and use of
material in construction of vehicles engaged in such commerce; the
education, training, and conduct of persons engaged in handling such
commerce; the age of employment; and physical equipment for the welfare
of employees, as well as tariff rates and other incidents.[143]

57. But in the exercise of this power to regulate commerce Congress has
legislated “to protect trade and commerce against unlawful restraints
and monopolies.”[144] Individuals, or corporations under State laws,
engaged in business, in so far as they are contracts, combinations
in the form of trusts, or otherwise, or conspiracies in restraint of
trade or commerce among the several States are illegal. The test here
is, Are such combinations in restraint of commerce among the several
States, or with foreign nations, or with the Indian tribes? If any such
combination be in restraint of commerce completely internal in a State,
it does not fall within the jurisdiction of the United States. If
illegal, it is illegal by State laws.[145] Thus a combination that is
engaged in manufacturing is within the jurisdiction of the police power
of the State, not within the jurisdiction given by the commerce clause
of the Constitution.[146] The regulation of manufactures is not the
regulation of commerce. A monopoly of manufacturing is not necessarily
a monopoly of commerce among the several States. In other words,
manufacturing is not commerce. The Constitution does not give Congress
power to regulate manufactures. However, as soon as the article
manufactured becomes an article of commerce among the several States,
then it is subject to regulation by Congress.

58. As soon as the article is manufactured it is subject to the law of
the State; the moment the article commences its final movement from the
State of its origin, that moment it is an article of commerce as that
word is used in the Constitution, and is within the jurisdiction of
Congress.[147]

  Manufacture is transformation,—the fashioning of raw materials
  into a change of form for use. The functions of commerce are
  different. The buying and selling and the transportation incidental
  thereto constitute commerce; and the regulation of commerce in
  the constitutional sense, embraces the regulation at least of
  such transportation. If it be held that the term includes the
  regulation of all such manufactures as are intended to be the
  subjects of commercial transactions in the future, it is impossible
  to deny that it would also include all productive industries that
  contemplate the same thing. The result would be that Congress
  would be invested, to the exclusion of the States, with the
  power to regulate, not only manufactures, but also agriculture,
  horticulture, stock-raising, domestic fisheries, mining,—in short,
  every branch of human industry.[148]

Assumption of power such as this by Congress would conflict with the
residuary powers of the States,—powers over intrastate commerce, and
that vast authority possessed by the States and known as their police
powers. Were such authority possessed and exercised by Congress, the
State governments would be paralyzed and between the States and the
United States there would be endless conflict.

59. It is not the delegation to Congress of power to regulate commerce
that makes the exercise of a similar power by the State void; it is
the actual exercise by Congress of its power to regulate commerce that
works the prohibition. In the absence of congressional legislation
on the subject the State may legislate. Thus a State law for the
regulation of pilots and pilotage, in the absence of Federal law for
the same, is valid.[149] This means that sovereignty acting through the
State government controls—or has jurisdiction—unless sovereignty has
acted in the matter through the government of the United States. Thus,
where the subject, say a bridge, a wharf, or a stream, over which power
may be exercised, is local in its nature and operation, or constitutes
a mere aid to commerce, the authority of the State may be exerted for
its regulation and management until Congress interferes and supersedes
State action.[150]

But a license fee exacted by a State law, from a vessel engaged in
commerce is a tax for the use of navigable waters and not a charge
in the nature of compensation for any specific improvement, or use
of wharves. It is a burden on commerce and is a State regulation of
commerce in conflict with the power of Congress to regulate it and
therefore unconstitutional.[151] But the internal commerce of a State,
that is, the commerce that is wholly confined within its limits is as
much under its control as foreign or interstate commerce is under the
control of the general government.[152]

60. By the words “taxation of commerce” is understood the taxation of
the agency, means, instrument, vehicle, or article in such a way or
with such effect as to control commerce; and by “control” is understood
any degree of control. If the State can tax foreign or interstate
commerce lightly, it can tax it heavily, and if heavily, it can so
tax as to destroy commerce. So long as the article imported remains
in the original form of package, the property of the importer, in his
warehouse, it is within the jurisdiction of the United States; but as
soon as it has become incorporated and mixed with the mass of property
in the State, it is within the jurisdiction of the State and becomes
subject to its taxing power.[153]

Were the State to tax the importer as such, this would be a tax
on importation and beyond State jurisdiction. So too would be any
charges, imposed by the State, on the introduction or incorporation
of the imported article into and with the mass of property in the
State. The essential principle here is that the taxing power of the
State cannot reach and restrain the action of the national government
within its proper sphere. “It cannot interfere with any regulation of
commerce.”[154]

61. The object in delegating to Congress the power to regulate
commerce—a delegation without limitations—was to insure uniformity
against discriminating State legislation.[155] The large and
fundamental purposes of the people of the United States in establishing
a national government are cited in the Preamble to the Constitution.
Unless the power to regulate commerce with foreign nations and among
the several States was delegated to Congress, these fundamental
purposes could not be realized.[156] It is a nice question: When has
the commercial power of the United States over a commodity ceased
and the power of the State commenced? The Supreme Court answers: The
federal commercial power continues until the commodity has ceased to
be the subject of discriminating legislation by reason of its foreign
character. That power protects it even after it has entered the State
from any burdens imposed by reason of its foreign origin.[157] Any
article brought into a State, as an article of commerce, from another
State,—that is from another political jurisdiction possesses “foreign
character.” The principle involved here may thus be stated: (1) The
Constitution having given Congress power to regulate commerce with
foreign nations and among the several States, that power is necessarily
exclusive whenever the subjects of it are national in their character,
or admit only of one uniform system, or plan of regulation. (2)
Where the power to regulate is exclusively in Congress, the failure
of Congress to make express regulations indicates its will that the
subject shall be left free from any restrictions or impositions; and
any regulation of the subject by the States, except only in matters
of local concern, is repugnant to such freedom. (3) The only way in
which commerce between the States can be legitimately affected by State
laws is when, by virtue of its police power, and by its jurisdiction
over persons and property within its limits, a State provides for
the security of the lives, limbs, health, and comfort of persons and
the protection of property. But these police regulations, affecting
commerce only incidentally,—such as (for example) the establishment
and regulation of highways, canals, railroads, and wharves by taxation
as forming part of the mass of property within the State,—must be
strictly internal regulations, not imposing taxes on persons or
property passing through the State, or coming into it for a temporary
purpose and forming no part of the common mass of property within its
jurisdiction. Any State regulation which discriminates adversely to the
persons or property of other States is an unauthorized interference
with the power of Congress over the subject.[158]

62. Interstate commerce cannot be taxed by the State even though the
same amount of tax should be laid by the State on commerce carried
on wholly within its limits.[159] The right involved is not a State
right. “To carry on interstate commerce is not a franchise or privilege
granted by the State; it is a right which every citizen of the United
States is entitled to exercise under the Constitution and laws of
the United States.”[160] That persons engaged in such commerce are
incorporated under the laws of a State and thereby possess facilities
for carrying on their business cannot deprive them of their fundamental
right as against the State, but Congress, by its power to regulate
commerce, may prescribe conditions under which their business is
carried on, or by regulation, destroy their business entirely.[161]
Thus a State cannot, by a license tax, exclude from its jurisdiction
a foreign corporation engaged in interstate commerce, or impose any
burdens upon such commerce within its limits.[162] But it is within the
police power of a State to protect the lives and health of its people,
and to protect property through laws suppressing nuisances; prohibiting
manufactures injurious to the public health; prohibiting the
manufacture and sale of intoxicating liquors; prohibiting lotteries,
gambling, horse-racing, or anything else which the Legislature
considers opposed to the public welfare.[163] A local regulation
limiting the speed of trains on entering a town or city, or approaching
a curve or a bridge, or requiring a train to stop at a particular
place, comes within the exercise of the police power of the State.[164]

63. The power of a State over commerce being exclusive only as to
commerce strictly internal and within its own boundaries,—that is,
within its own jurisdiction,—it follows that “a State can no more
regulate or impede commerce among the several States than it can
regulate or impede commerce with foreign nations.”[165] Taxation, by
a State, of goods coming into it from another State, would destroy
freedom of trade within the nation, which Congress has seen fit shall
remain undisturbed. This freedom of trade is national in character, and
interference with it, by a State, would violate a function and defeat
the purpose of nationality: that is, such violation would prevent the
people of the United States from realizing their own sovereignty.

64. An illustration of the constitutional use of the power of the State
over commerce is afforded by the tax, in Texas, on telegraph messages
sent from one place to another exclusively within the State, by private
parties, and not by the agents of the government of the United States.
The Texas law imposing this tax is not in conflict with the power of
Congress to regulate commerce,[166] and therefore was not repugnant
to the Constitution of the United States. The line of demarcation as
to exercise of the police power by a State is drawn “by the undoubted
right of the States of the Union to control their purely internal
affairs, in doing which they exercise powers not surrendered to the
general government.”[167]

Many State laws regulating its administration of internal affairs are
applications of its police power. The police power of the State is
of right, and is founded on “the sacred law of self-defense.”[168]
But this sacred law applies strictly to the domain of the State—to
its own jurisdiction. “It cannot invade the domain of the national
government.”[169] A State inspection law is a familiar example of the
exercise of its police power, but such a law, working obstruction of
interstate commerce, or any limitation of it, though such effect be
only incidental, is repugnant to the Constitution.[170] Such repugnancy
is effected by a State law levying a tax on tonnage, and is void.[171]
But a charge for mooring or landing at a wharf, is not a tax on
tonnage, but a charge for services rendered;[172] neither is the tax a
tonnage tax when the State imposes a tax on vessels (even if regularly
engaged in interstate commerce), the property of persons residing
within the jurisdiction of the State, the vessels themselves being
part of the mass of property within the State, being moored for long
periods at the wharf for repairs and being under the protection of the
State. The taxing power is a distinct and separate power from the power
to regulate commerce. The right of taxation in a State remains over
every subject where it existed before the adoption of the Constitution
with the exception only of prohibitions expressed or implied in the
Constitution.

  The sovereign jurisdiction of the State is not limited; within
  that jurisdiction it is free to tax. But the powers to tax and
  to prohibit taxation are given in the Constitution by separate
  clauses, and these powers are separate and distinct from the power
  to regulate commerce. From this it follows that the enrolment of
  a ship or vessel in interstate commerce does not exempt its owner
  from taxation for his interest in it as property, upon a valuation
  by State law, as in the case of other personal property.[173]

65. There ever remains the question of the extent of the power of
Congress to regulate commerce. American constitutional law as to
commerce is largely of what the States may not do. But the enormous
power of Congress to regulate commerce, more and more as the years
pass,—as the meaning of “national jurisdiction” is defined by the
courts of law,—the definition, however, slowly conforming to public
opinion,—discloses the extent of the federal power through the commerce
clause. Doubtless Congress has made but a beginning in its exercise
of this power. Thus it has made lottery tickets articles of commerce,
has excluded them from the mails, has assumed plenary authority of the
carriage of such articles from State to State, and, by authority of the
commerce clause has practically destroyed the lottery business in the
United States.[174] The principle here decided is that, under the power
to regulate commerce, regulation may take the form of prohibition, and
that the power “may be exerted with the effect of excluding particular
articles from such commerce.”[175]

In this decision the Court observes, “that the suppression of
nuisances injurious to public health or morality is among the most
important duties of government,” and quotes an earlier decision as to
“the widespread pestilence of lotteries.” It might seem that while
exercising its powers under the commerce clause Congress was really
exercising the police power of the United States.

66. Of highest importance is the act of Congress of July 2, 1890,
and later amendments, known as the Anti-Trust Act, entitled, An
“Act to Protect Trade and Commerce against Unlawful Restraints and
Monopolies.” The decisions growing out of this act have been made on
issues involving the particular questions whether or not restraints
and monopolies so-called were such under the act and conflicted with
it. The power of Congress, under the commerce clause to prohibit such
restraints and monopolies has not been denied. It will be remembered
that power to regulate commerce is not power to regulate manufactures.
The purpose of the Anti-Trust law[176] is “to destroy the power to
place any direct restraint on interstate trade or commerce, when by
any combination or conspiracy formed by either natural or artificial
persons, such a power has been acquired; and the government may
intervene and demand relief as well after the combination is fully
organized as while it is in process of formation.”[177] The principle
involved here is as to the power of corporations organized under State
laws to restrain or to monopolize interstate commerce. The State has
no power to create corporations with such powers, and consequently
they cannot exercise them lawfully. And like attempts to restrain
and monopolize interstate commerce made by individuals is alike
unlawful.[178]

67. So, too, where a labor organization sought by a boycott to prevent
the manufacture of articles intended for interstate commerce, and
to prevent the re-selling of these articles in other States, the
combination and plan were held to be restraint of commerce and in
violation of the Anti-Trust act.[179] The cases strongly suggest that
federal laws to regulate commerce may be essentially police regulations
as, notably, laws requiring safety appliances on railroad trains and
steamboats; laws regulating hours of labor and child labor; laws
requiring arbitration of controversies between employers and employees
operating in interstate commerce; the pure food law; the exclusion
of lottery tickets from the mails, and the like. The Constitution
contains no clause explicitly delegating the police power to the United
States, and the exercise of police power by Congress has thus far been
quite without exception under the commerce clause. Yet by parity of
reasoning, the police power may be included under the power to declare
war.

68. There is such a thing as the peace of the United States.[180] The
enormous power of Congress under the commerce clause has undoubtedly
promoted that peace: “domestic tranquillity” is one of the specified
purposes in ordaining and establishing the Constitution. As absence
of power to regulate commerce marked the weakness of the Articles
of Confederation, so the special inclusion of that power among those
delegated to Congress marks the strength of the Constitution.

69. Within their respective jurisdictions the United States and
the several States have power to regulate commerce. The power over
commerce, in either jurisdiction, is exercisable within the principle
of self-preservation. Whatsoever exercise of this power is essential
to the existence of either government belongs to that government and
cannot be repugnant to the other, that is, under the dual system of
American constitutional government. Simple as this principle may seem,
its practical application in defining the two jurisdictions, or the
authority of either government, involves all the issues in American
constitutional law, and the decisions of the American judiciary in
cases arising under the commerce clause of the Constitution.

A notable instance of the authority given by the commerce clause is the
power of Congress, over the transportation of the mails, to prevent
“any unlawful and forcible interference” with them. “The strong arm of
the government may be put forth to brush away all obstructions to the
freedom of interstate commerce or the transportation of the mails”;
“the United States have a property in the mails.” The contents of the
mail-bags—that is, matter, lawfully mailable—are commerce in the sense
in which that word is used in the Constitution.

  Constitutional provisions do not change, but their operation
  extends to new matters as the modes of business and the habits of
  life of the people vary with each succeeding generation. The law
  of the common carrier is the same to-day as when transportation on
  land was by coach and wagon, and on water by canal boat and sailing
  vessel, yet in its actual operation it touches and regulates
  transportation by modes then unknown, the railroad train and the
  steamship. Just so is it with the grant to the national government
  of power over interstate commerce. The Constitution has not
  changed. The power is the same. But it operates to-day upon modes
  of interstate commerce unknown to the fathers, and it will operate
  with equal force upon any new modes of such commerce which the
  future may develop.[181]

Under the commerce clause Congress

  may enact such legislation as shall declare void and prohibit the
  performance of any contract between individuals or corporations
  where the natural and direct effect of such a contract will be,
  when carried out, to directly, and not as a mere incident to other
  and innocent purposes regulate to any substantial extent interstate
  commerce.

And “interstate” also includes “foreign commerce.”[182]

All the decisions

  illustrate the principle that Congress in the exercise of its
  paramount power may prevent the common instrumentalities of
  interstate and intrastate commercial intercourse from being
  used in their intrastate operations to the injury of interstate
  commerce. This is not to say that Congress possesses the authority
  to regulate the internal commerce of a State, as such, but that it
  does possess the power to foster and protect interstate commerce,
  and to take all measures necessary or appropriate to that end,
  although intrastate transactions of interstate carriers may thereby
  be controlled.[183]




CHAPTER VI

THE LAW OF CONTRACTS AND PROPERTY


70. The supreme law of the land provides that no State shall pass
any law impairing the obligation of contracts.[184] A contract is an
agreement between competent persons to do or not to do a certain thing;
the law is part of the contract.[185] An unlawful contract cannot be
made, for the so-called contract, being unlawful, has never existed
as a contract. The limitation as to contracts in the Constitution is
on the States. Thus a State can no more impair its own contracts,
by legislation, than it can impair the obligation of the contracts
of individuals.[186] A sovereign State is supposed to have a more
scrupulous regard to justice, and a higher morality than belongs to the
ordinary transactions of individuals.

71. A State may incorporate a bank which, by its charter, is
empowered to issue, and does issue, stock, bills, or notes. These are
contracts. By its police power the State may repeal that section
of the bank’s charter authorizing issues of notes, but legislation
affecting the stock, or notes, so as to impair their obligation is
unconstitutional.[187] The question is not one of currency but of
impairing the obligation of a contract. A legislature may make a
contract binding upon later legislatures,—as a law existing at the
time contracts under it are made, it becomes part of them, but a
municipal act levying a tax upon city bonds held by non-residents
diminishes the value of the bonds and therefore impairs the obligation
of a contract.[188] For the bonds call for a certain interest payment
at a certain time, and a tax upon them, and retaining the same from
payment, make an entirely different contract from the original. The
constitutional provision against impairing contract obligations is a
limitation on the taxing power as well as on all legislation—whatever
its form.[189]

72. But such limitation must not be confused with legitimate exercise
of the police powers of the State. Thus an arrangement determinable at
the will of either party is not a contract beyond control, change, or
cessation under the police power. For example, a bounty law, as for
killing destructive animals, or for the encouragement of manufactures
(the boring of salt wells and pumping of water from them for making
salt), does not involve the State in a contract. It is a matter purely
voluntary on the part of those who avail themselves of the opportunity,
and the Legislature may or may not continue the law at discretion, as a
matter of public policy.[190]

73. The execution of an office to which a person has been lawfully
elected, or appointed, by the performance, by him, of its duties, is
a completed contract, with perfect obligation to pay for services
rendered at the rate of compensation fixed by the contract, and this
obligation can no more be impaired by a law of the State than that
arising on a promissory note.[191]

74. The charters of private charitable institutions are contracts
within the letter of the Constitution, and their obligation cannot be
impaired without violating it.[192] But if a charter to a corporation,
for example a railroad, or a college, provides for possible alteration
or amendment by the Legislature of the State, such power of alteration
duly exercised by a later Legislature is not unconstitutional as
impairing the obligation of a contract.[193]

75. The police power of the State extends to the protection of the
lives, health, and property of citizens, and to the preservation of
good order and the public morals, nor can the Legislature, by any
contract, divest itself of the power to provide for these objects.

  They belong emphatically to that class of objects which demand the
  application of the maxim, _salus populi suprema lex_; and they are
  to be attained and provided for by such appropriate means as the
  legislative discretion may devise. That discretion can no more be
  bargained away than the power itself.[194]

In exercise of this police power the Legislature prohibits the
manufacture and sale of malt liquor. Such manufacture or sale is not
an exercise of a right by contract, and prohibition of the business
is not legislation impairing the obligation of a contract.[195] So
too, a provision in a State constitution forbidding lotteries and
gift enterprises within a commonwealth, and revoking lottery charters
theretofore granted, is not a law impairing the obligation of a
contract.[196] The principle followed here is expressed by the Chief
Justice (Waite): “No legislature can bargain away the public health or
the public morals.” Thus it may be accepted as settled constitutional
law that the people in their sovereign capacity and through their
properly constituted agencies may exercise powers as the public good
may require.[197] But corporations and private persons possessing and
exercising rights and franchises vested in them by law and possessing
property rights by contract are entitled to compensation when, under
the State power of eminent domain, such vested rights are taken
away.[198]

76. Whether property or employment possesses the qualities or
attributes of a public use will largely determine the character of
legislative control for the purpose of safe-guarding the public against
“danger, injustice, and oppression”; the police power of the State is
here paramount.[199]

77. The principle involved in the obligation of contracts is clearly
set forth by the Supreme Court:

  In placing the obligation of contracts under the protection of the
  Constitution, its framers looked to the essentials of the contract
  more than to the forms and modes of proceeding by which it was
  to be carried out into execution; annulling State legislation
  which impaired the obligation, it was left to the States to
  prescribe and shape the remedy to enforce it. The obligation of a
  contract consists in its binding force on the party who makes it.
  This depends on the laws in existence when it is made; these are
  necessarily referred to in all contracts and forming a part of them
  as the measure of the obligation to perform them by the one party,
  and the right acquired by the other. There can be no other standard
  by which to ascertain the extent of either, than that which the
  terms of the contract indicate according to their settled legal
  meaning; when it becomes consummated, the law defines the duty
  and the right, compels one party to perform the thing contracted
  for, and gives the other a right to enforce the performance by the
  remedies then in force. If any subsequent law affect to diminish
  the duty, or to impair the right, it necessarily bears on the
  obligation of the contract, in favor of one party, to the injury
  of the other; hence, any law which, in its operation, amounts to
  a denial, or obstruction, of the rights accruing by a contract,
  though professing to act only on the remedy, is directly obnoxious
  to the prohibition of the Constitution.[200]

78. The prohibition of legislation impairing the obligation of
contracts does not extend to the United States as it does to the
States. Thus in the Legal Tender Cases[201] and in sundry bankruptcy
cases.[202] the Supreme Court has decided that the exercise of the
power of Congress “does not depend upon the incidental effect of its
exercise on contracts, but on the existence of the power itself.” This
means that the United States possesses a police power, _salus populi
suprema lex_, in exercise of which at the discretion of Congress, the
obligation of contracts must yield to the higher obligation of the
general welfare.[203]

79. It is a fundamental of government in America that no person
shall be deprived of life, liberty, or property without due process
of law, nor shall private property be taken for public use without
compensation.[204] The prohibition and protection as to due process of
law extends both to the United States and to the States. The taking
by a State of the private property of a person,—and a corporation
is legally a person,—without the owner’s consent, for the private
use of another is not due process of law,[205] and it violates
the Fourteenth Amendment. A State possesses exclusive jurisdiction
and sovereignty over persons and property within its territory and
consequently may determine for itself the civil status and capacities
of its inhabitants; may prescribe the subjects upon which they may
contract, and regulate the manner and conditions upon which property
situated within its territory—or jurisdiction—may be acquired, enjoyed,
and transferred; but no State can exercise direct jurisdiction and
authority over persons or property without its jurisdiction. The
laws of a State have no operation outside its territory “except so
far as is allowed by comity; any exertion of authority by a State
beyond its territory is a nullity.” The sovereign power of the State
over property within its jurisdiction, belonging to non-residents is
exercisable as over the property of residents. But the property right
of the non-resident cannot be invalidated save by due process of law,
which means, _inter alia_, the right of the non-resident to appear
personally, or by representative, in the courts of the State to protect
his own interests. A State law under which a nonresident’s property
should be taken without such notice would be unconstitutional by the
Fourteenth Amendment.[206]

But the Fourteenth Amendment does not deprive the States of their
police power over “subjects within their jurisdiction.”[207]

80. The right of eminent domain is essentially of the police power,
and for State purposes is exclusively within the State. Each State in
the Union regulates its domestic commerce, contracts, the transmission
of estates,—real and personal—and acts upon all internal matters which
relate to its moral and political welfare. Over these subjects the
federal government has no power. The acknowledged police power of a
State extends often to the destruction of property. A nuisance may
be abated.[208] Thus a State constitution, or a statute under it,
prohibiting the manufacture and sale of intoxicating liquors, except
for medicinal, scientific, and mechanical purposes, does not conflict
with the clause of the Fourteenth Amendment which provides that “no
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States, nor shall any State
deprive any person of life, liberty, or property, without due process
of law.” The so-called “right” to manufacture or sell such articles is
not a right growing out of citizenship of the United States.[209] Such
manufacture or sale, or its prohibition is wholly within the power of
the State to control.[210]

Such control is of wholly internal affairs. The right to manufacture
or sell such articles is not a right under a contract as the word
_contract_ is used in the Constitution.[211] Prohibition of the
manufacture and sale of such articles, save as excepted, does not
deprive the citizen of his constitutional rights. Such prohibition is
the policy of the supreme power in the State and is an exercise of a
function within its jurisdiction.

  The exercise of the police power of the State by the destruction of
  property which is itself a public nuisance, or the prohibition of
  its use in a particular way whereby its value becomes depreciated,
  is very different from taking property for public use, or from
  depriving a person of his property without due process of law. In
  one case, a nuisance only is abated; in the other, unoffending
  property is taken away from an innocent owner.[212]

81. The provision of the Constitution that private property shall not
be taken for public use without compensation is a limitation on the
power of the federal government, and not on the States,[213] but the
State constitutions usually include the limitation in their Bills of
Rights: the principle is “essentially a part of American constitutional
law.”[214]

82. For consequential injury resulting from the exercise of the power
of eminent domain there is no redress,[215] but where such exercise
of power works effectual destruction of land so as to impair its
usefulness, it is a taking of property for public use and the owner is
entitled to compensation.[216] The principle here is that,

  If in such cases suitable and adequate provision is made by the
  Legislature for the compensation of those whose property or
  franchise is injured or taken away, there is no violation of public
  faith or private right.

It is also a well-established principle that no construction of
the clause in the Bill of Rights (in any constitution) providing
compensation for property taken for a public use shall so extend
the benefits of the clause as to give indirect or consequential
damages to a person when the public already has a rightful use of the
property.[217]

83. Though the right of eminent domain and its exercise are not
enumerated in the Constitution, the power being inseparable from
sovereignty and the right being the offspring of political necessity,
must be recognized as existing. The right is one of these which is not
denied, and being essential, is implied. Were the right to acquire
property, and for other purposes, denied the United States, the
unwillingness of property-holders to sell, or legislation by a State
prohibiting a sale to the federal government would make nugatory the
government itself, and its existence would thus depend upon the will
of a State, or even upon that of a private citizen.[218] The essential
matter here is of sovereignty, or jurisdiction. The two sovereignties,
the several States and the United States, possess, each, this right
commensurable with their respective jurisdictions.

  The proper view of the right of eminent domain seems to be, that
  it is a right belonging to a sovereignty to take private property
  for its own public uses, and not alone for those of another. Beyond
  that, there exists no necessity; which alone is the foundation
  of the right. If the United States have the power, it must be
  complete in itself. It can neither be enlarged nor diminished by a
  State.[219]




CHAPTER VII

THE LAW OF THE EXECUTIVE POWER


84. The executive power of the United States is vested in a President.
The executive is single,—that is, one person. He possesses all the
executive powers which the sovereign,—the people of the United States,
have conferred. His power is derivative, not original. His power is
not defined by the Constitution, that is, it is not fully set forth
by limitations. It is limited in two particulars: he cannot grant
reprieves or pardons in cases of impeachment, and he solemnly swears
or affirms faithfully to execute the office of President of the United
States. This solemn obligation implies that he himself is not the
sole or the final judge of his fidelity in executing his office. This
responsibility of the President to a superior, in certain cases, is
clearly stated by the Constitution itself: first, that the House of
Representatives shall have the sole power of impeachment, and secondly,
that the Senate shall have the sole power to try all impeachments,
and when sitting for that purpose, its members shall be on oath or
affirmation. When the President is tried, the Chief Justice of the
United States shall preside, and no person shall be convicted without
the concurrence of two thirds of the members present.[220]

85. Whether or not the President has performed the duties of his office
is a political question and may alone be determined by impeachment and
conviction. President Johnson was impeached but not convicted,—whence
the conclusion that he faithfully executed the office of President.
The term “office” is not used in the Constitution as descriptive of
the exercise of legislative power by either House or by its respective
members. Senators and Representatives receive a compensation for their
“services.” No person holding any “office” under the United States can
be a member of either House during his continuance in “office.”[221]
But the Constitution does not apply the term “office” to the two-year
term of a Representative, or to the six-year term of a Senator, or to
the duties, rights, privileges, qualifications, or powers of either. We
shall see that the term is applied to judges of the United States.

86. The executive power of the United States is vested in a President,
and the faithful exercise of that delegated power is the faithful
execution of the office of President. From the nature of the power it
cannot be defined. The office was created by the people of the United
States at the close of the eighteenth century, when distrust of the
executive (the crown) was dominant in the American mind. The trend then
was to enthrone the legislative and to dethrone the executive. It is
remarkable that the supreme law of the land, made at that time, should
vest such vast powers in the executive. He is commander-in-chief of
the army and navy and of the State militia when in the actual service
of the United States[222] but Congress alone can declare war.[223]
He participates in legislation, and possesses the veto power (which
constitutionally comprises that participation)[224] but unlike the
governor, under some later constitutions, he cannot veto a particular
item in an appropriation bill.[225]

He makes treaties, provided two thirds of the Senators present
concur,[226] and the control of our foreign relations is in his
hands.[227] Thus, though not possessing the war power by the verbal
provisions of the Constitution, he may by his policy, involve the
United States in war. He possesses the appointing power, thus
determining who shall fill judicial and administrative offices, under
the Constitution,[228] a power, the exercise of which practically
determines the character of the federal government. In brief, excepting
members of the Senate and of the House, all now elected directly by
the people and who, at present, comprise, numerically, about one one
thousandth part of the aggregate public servants in the government
of the United States, the President,—that is, the executive power
of the United States delegated to the President, appoints the vast
body of officials in the national service. Most of these officials
have ministerial duties; a few have judicial. Strictly speaking,
the President is the only executive officer provided for by the
Constitution.

87. In the “Executive Department” (an expression known to the
Constitution[229]), it is the President alone who makes the
appointments. “The principal officer in each of the executive
departments” is known to us as a member of the Cabinet, and is an
appointee of the President. The office of a member of the Cabinet
affords an illustration of that rare tenure, a tenant at will. This
tenure is stated by Lincoln in a memorandum read to his Cabinet: “I
must myself be the judge how long to retain and when to remove any of
you from his position.”[230]

88. The President cannot be enjoined from dismissing, or be mandamused
to receive a person, from or into his Cabinet. Indeed, such is the
nature of the office of President, he is not amenable to writs of the
law. He cannot be compelled by law to approve or to disapprove a bill
that has passed Congress; or to appoint or to refrain from appointing
any person to any office within his jurisdiction. Nor can he be
questioned in any court of law respecting his office, nor be made a
witness in any controversy. His powers are adequate to the execution
of his office. It may be said that this is essentially true of the
legislative,—the Congress, and of the judiciary,—the Courts of the
United States.

89. Thus the President has power to protect a federal judge from
threatened personal attack.[231] He has power to receive ambassadors
and other public ministers and representatives of other sovereignties,
a power which implies his right to refuse to receive those sent, or
to dismiss those sent, or to request their recall, or to discontinue
relations with them. Nor can any person, or State, through any court
of law, compel or forbid him to do either. In other words, the powers
of the President of the United States are executive, not ministerial.
This distinction applies to no appointee of the President, in any of
the executive departments. Their office is ministerial and every
ministerial office in the government of the United States is subject to
inquiry through a court of law.[232]

Thus the executive power of the United States is not subject to the
legislative power.[233] We have seen that it is not subject to the
judicial power. Yet, if this be so, by what power can the President be
impeached for not faithfully executing his office?

90. The restraint of impeachment is not legislation nor the exercise of
legislative powers vested in Congress. Impeachment is the accusation
made by the House of Representatives that the President has not
faithfully executed his office. Conviction is the adverse judgment
of the Court of Impeachment,—the Senate sitting under special oath
for a special purpose, not legislative, as duly provided for by the
Constitution. Had the people of the United States, in 1787, chosen to
provide, in the Constitution, for a Court of Impeachment consisting,
say, of Governors of States, or that State Legislatures should have the
sole power of impeachment, no one would claim that the governors or the
legislators so engaged were exercising either executive or legislative
functions. So the Houses of Congress engaged in an impeachment trial
of the President, or of any “officer of the United States” are not
engaged in legislation. If Congress possessed legislative power to
remove the President, it could vacate the presidential office by an act
and pass it over the President’s veto. Such a power vested in Congress
would nullify the power vested in the President and would make him a
creature of Congress.

91. The constitutional provision that when the Senate sits as a
Court of Impeachment the Chief Justice of the United States shall
preside,[234] in no way affects the judicial power vested in the
supreme and inferior Courts of the United States. The reason for
the provision is obvious. The Senate, which is the special Court of
Impeachment, has ordinarily, and by the Constitution, two presiding
officers: one, _ex officio_, the Vice-President; the other, the
President _pro tempore_, who is a Senator.[235]

The conviction of a President removes him from the office and the
Vice-President (or whosoever by law is in line of succession) succeeds
him. The President _pro tempore_ of the Senate, votes in the Court
of Impeachment as a Senator. If either the Vice-President, or the
President _pro tempore_ presided over the Court of Impeachment, when
a President is on trial, the principle of freedom from official, or
one may say, personal bias would be violated. The Chief Justice
presides,—an official of high rank, disinterested, save to be fair
to all parties, and capable of so ruling. But when the Court of
Impeachment sits to try other officials (except the Vice-President)
the Chief Justice does not preside. When he presides and makes rulings
they are not comparable to rulings or decisions he renders as the voice
of the Supreme Court. The finding of the Court of Impeachment is not
analogous to the decisions of that Court.

92. It follows therefore that the executive power of the United States,
vested in the President, is not subject to the legislative or to the
judicial power. It is independent of either or both. Yet the people
of the United States have provided for their relief from a faithless
execution of the office of President by combining Congress and the
Chief Justice of the United States as a special body, or agency, a
Court of Impeachment through which to secure relief.

93. It is evident that the power of the President of the United States
is very great.

  The scope of this executive power has never been realized
  [remarked President Hayes], and the practical use of power, even
  by an ordinarily strong President, is greater than the books
  ever described. The executive power is large because not defined
  in the Constitution. The real test has never come, because the
  Presidents, down to the present, have been conservative, or what
  might be called conscientious, men, and have kept within limited
  range. And there is an unwritten law of usage that has come to
  regulate an average administration. But if a Napoleon ever became
  President, he would make the executive almost what he wished to
  make it.[236] Practically the President has the nation in his
  hands.[237]

94. The principle, difficult to understand, regulative of the
constitutional law of the executive power, is the principle of
executive as distinct from ministerial power.

  A ministerial duty, the performance of which may, in proper cases,
  be required of the head of a department, by judicial process, is
  one in which respect to nothing is left to discretion. It is a
  simple, definite duty, arising under conditions admitted or proved
  to exist, and imposed by law.[238]

This means that where the law requires the performance of a single
specific act, there is no room for the exercise of judgment, there is
nothing left to discretion; the act is ministerial. “Very different
is the duty of the President in the exercise of the power to see that
the laws are faithfully executed,—the duty thus imposed is in no sense
ministerial; it is purely executive and political.”[239]

In application of this principle

  The Congress is the legislative department of the government; the
  President is the executive department. Neither can be restrained
  in its action by the judicial department; though the acts of both,
  when performed, are, in proper cases, subject to cognizance.[240]

95. The principle applies alike to the States. The control of the
exercise of powers belonging exclusively to the executive department
of the government of a State can in no sense or degree be assumed by
either of the other departments, as such control would amount to the
performance of executive duties by the legislative or the judiciary, a
confusion of functions distinctly forbidden by the constitution. And
it has been decided that “_mandamus_ will not issue to the Governor to
compel the performance of _any_ duty pertaining to his office, whether
political or merely ministerial; whether commanded by the constitution
or by some law passed on the subject.”[241]

The principle of American constitutional law as to executive and
ministerial powers is thus stated:

  The Court will not interfere by _mandamus_ with the executive
  officers of the government in the exercise of their ordinary
  official duties, even where those duties require an interpretation
  of the law, the Court having no appellate power for that purpose;
  but when they refuse to act in a case at all, or when by special
  statute, or otherwise, a more ministerial duty is imposed upon
  them, that is, a service which they are bound to perform without
  further question, then, if they refuse, a _mandamus_ may be issued
  to compel them.[242]


  NOTE—Hamilton in _The Federalist_ makes the classic and earliest
  examination of the executive power,—Nos. lxvii.-lxxvi. Marshall’s
  conception of the federal executive accords with Hamilton’s. This
  conception is further developed in the decisions of the Supreme
  Court, in Marshall’s time, concerning executive functions, and by
  Mr. Justice Story in his _Commentaries on the Constitution_. In
  _Political Science and Constitutional Law_ (2 vols. 1891), John W.
  Burgess makes a critical and comparative study of executive power.
  J. H. Finley and J. F. Sanderson in their _The American Executive
  and Executive Methods_ (1908), present the operation of executive
  power, State and federal, at the present time.




CHAPTER VIII

THE LAW OF JUDICIAL POWER


96. The people of the United States, like other sovereignties, possess
not only legislative and executive functions, but also judicial.
The possession of these three powers by sovereignty is essential to
its existence and a condition of any conception of it. The judicial
power of the United States is vested in one Supreme Court and in such
inferior courts as Congress from time to time may ordain and establish.
This is a delegation of judicial power.[243] The inferior courts are
established by Congress but the power of these courts is delegated to
them by the people of the United States through the Constitution. Thus
it may be said that these inferior courts exist by act of Congress
but their authority is delegated to them by the same sovereignty that
empowers Congress to create them. The power of the Supreme Court is
defined in the word _supreme_, and that of the inferior courts in the
word _inferior_. Congress can neither increase nor decrease this
power; the sovereign alone, the people of the United States can modify
the grant. This it has done by the Eleventh Amendment, ratified in 1798:

  The judicial power of the United States shall not be construed
  to extend 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.[244]

This Amendment was added in compliance with the idea,—at the time
dominant in America,—that a State, a member of the Union, is a
sovereign, and being sovereign, cannot be made defendant (that is,
cannot be sued) at the suit of a citizen or subject of another State,
or of a foreign country. The idea was,—and is,—that an American
Commonwealth may be petitioned, like any other sovereign, but can
be sued only in its own courts and with its own consent.[245] In
conformity to this idea the Constitution was so amended as to deny to
the courts of the United States any jurisdiction whatever in any case
in which an American Commonwealth is made a defendant.

97. This Amendment is a limitation of the judicial power delegated
to the government of the United States and save in some particulars
of applied judicial jurisdiction as original or appellate, is the
only limitation. On the principle that the government of the United
States “must possess all the means and have a right to resort to all
the methods of executing the powers with which it is intrusted that
are possessed and exercised by the governments of the particular
States,”[246] the judicial power vested in the federal courts must
be sufficient for all the functions and purposes of the federal
government. The judicial power of the United States extends to all
cases, in law and equity, arising under the Constitution, the laws of
the United States, and the treaties made under its authority; to all
cases affecting ambassadors, other public ministers and consuls; to
all cases of admiralty and maritime jurisdiction; to controversies to
which the United States is a party; to controversies between two or
more States; between citizens of different States; between citizens
of the same State claiming lands under grants from different States,
and between a State, or its citizens, and foreign states, citizens, or
subjects, save and except as jurisdiction is limited by the Eleventh
Amendment.[247]

98. It will be observed that the judicial power thus delegated to
the United States includes jurisdiction over cases arising outside
the domain strictly included (as popularly understood) within the
government of the United States. That government is, of necessity and
by its nature, a distinct government, possessing powers and functions
and purposes of its own, delegated and set forth in the Constitution.
Fundamentally there is a government of the United States distinct
from the government of the States. The judicial power of the United
States includes jurisdiction over controversies to which States are a
party,—that is, to controversies to which the United States is not a
party. The jurisdiction here has no reference to the controversy but to
the status of the parties to the controversy.

99. _The Federalist_ sets forth the principle here involved:

  If there are such things as political axioms, the propriety of
  the judicial power of a government being co-extensive with its
  legislative, may be ranked among the number. The mere necessity of
  uniformity in the interpretation of the national laws decides the
  question. Thirteen (1787; forty-eight, 1917) independent courts of
  final jurisdiction over the same causes, is a hydra in government,
  from which nothing but contradiction and confusion can proceed.[248]

This aspect of the judicial power of the United States concerns the
interpretation of the supreme law. One purpose of that law is “to
insure domestic tranquillity,”—that is, the peace of the Union.[249]

The Constitution imposes restrictions on the States, which of course
means restrictions on their legislatures, their governors, and their
courts. Upon principles of good government the States are prohibited
from doing many things. How shall infractions of the supreme law be
determined? Either by a congressional negative, or by the authority of
the federal courts overruling whatsoever act of the State contravenes
the Constitution.[250]

100. But the judicial power of the United States extends yet
further,—to controversies “in which the State tribunals cannot be
supposed to be impartial and unbiased.”[251] The principle here is that
the whole is greater than a part;

  that the peace of the whole ought not to be left at the disposal
  of a part. “No man ought to be a judge in his own cause, or in any
  cause in respect to which he has the least interest or bias.”[252]
  On the principle that every government ought to possess the means
  of executing its own provisions by its own authority,

it follows that it is necessary that the construction of the
Constitution,—the supreme law,—

  should be committed to that tribunal which, having no local
  attachments, will be likely to be impartial between different
  States and their citizens, and which, owing its official existence
  to the Union, will never be likely to feel any bias inauspicious to
  the principles on which it is founded.[253]

101. The exercise of judicial power by the Supreme Court is provided
for, in part, by the Constitution, but Congress is authorized to ordain
and establish inferior courts,—which means to define their respective
jurisdictions; to bestow upon a court so much judicial power, and to
make such restrictions, rules, and regulations as Congress itself may
deem proper. Thus Congress establishes such courts and defines their
several jurisdictions, but whatsoever judicial power a court possesses,
by act of Congress, the court derives from the Constitution in its
grant of such power. The jurisdiction of any inferior court of the
United States, thus defined by Congress, may vary, from time to time,
by act of Congress, but every case arising in the court must be shown,
by the record of the court, to be within its jurisdiction.[254] The
reason for this important rule (and seeming restriction) conforms to
the essential principle in all judicial proceeding: the principle of
authority. No court acts without authority and, as judicial examination
has for its ultimate purpose the settlement of controversy in a legal
manner, the jurisdiction of the court is of primary importance. One of
the purposes of the Union is “to establish justice,” and precision in
the whole matter of exercise of judicial power is essential.

102. The jurisdiction of the Supreme Court of the United States is
both original and appellate. Its original jurisdiction is defined in
the Constitution as “in all cases affecting ambassadors, other public
ministers and consuls, and those in which a State is a party.”[255]
The Court can have original jurisdiction in no other cases, nor can
Congress extend or diminish the Court’s jurisdiction. Thus to the words
in the Constitution conferring original jurisdiction on the Court “a
negative or exclusive sense must be given, or they have no operation
at all.”[256] The original jurisdiction of the Supreme Court was
conferred because of the dignity and rank of the Court, and the rank
of the parties thus privileged to appear before it at first instance.
Ambassadors, public ministers, and consuls represent sovereignties,
and a State in the Union is “for some purposes sovereign, for some
purposes subordinate.”[257] On this delegation of original jurisdiction
Chief Justice Marshall remarks: “There is, perhaps, no part of the
article under consideration so much required by national policy as
this.”[258] The rank of the parties is the reason for giving them the
right to begin their case in the Supreme Court. They are not excluded
from beginning it in some other court. But Congress, in establishing
an inferior court, may deny to it any jurisdiction in cases to which
foreign representatives are a party.[259] The right of ambassadors,
public ministers, and consuls to begin their suits in the Supreme
Court is a privilege accorded them because of their governments, and
not because of themselves. As they are accredited to the Government
of the United States and not to any State government, it is proper
that the United States courts, and of these the Supreme Court, should
have original jurisdiction in their cases.[260] In all the other
cases mentioned in the Constitution the Supreme Court has appellate
jurisdiction; that is, cases come before the Court on appeal from the
decision of some inferior federal court, or from some State court, as
provided by law. The entire procedure in an appeal to the Supreme Court
is regulated by Congress. If a party, whether private person, private
corporation, or public corporation, citizen, or State is within the
jurisdiction of the United States, then that person or corporation, if
a party to a case or controversy at law, is within the jurisdiction of
a federal court. The Constitution is the supreme law of the land and
this Constitution, the acts of Congress and the treaties made by its
authority are the law of federal jurisdiction. Thus it is commonly and
truly said, that whensoever the Constitution, or a treaty, or an act of
Congress is involved in the controversy, the federal courts (as their
several jurisdictions are determined by law) have jurisdiction in the
case. The principle is one of sovereignty.

103. The State for some purposes retains its sovereignty,[261] as
in the exercise of its police power.[262] By the Constitution, the
judicial power of the United States extends “to all cases of admiralty
and maritime jurisdiction,” but the State has jurisdiction to punish
crimes committed within its territory; to regulate fisheries within
that territory, and to punish those who violate its regulations. The
admiralty and maritime jurisdiction of the United States extends to the
high seas, to the navigable waters of the United States, to the Great
Lakes, and to rivers and lakes wholly within a State. Over its own
territory the State has jurisdiction; thus the territory which is the
scene, or area, or location of the act may be subject to both State and
federal jurisdiction, and is always within one or the other.

104. In creating inferior courts, Congress determines the jurisdiction
but not the judicial power exercisable within the jurisdiction.
Congress does not control the judges in their execution of their
office. Judicial power, of whatever extent, is conferred by the
Constitution; it is power of a judicial nature delegated by the people
of the United States. The inferior courts of the United States sit
in the several States, but the right to determine the jurisdiction
of these courts is placed not in the State Legislatures (though
these Legislatures have by delegated authority, jurisdiction of this
territory), but in the supreme judicial tribunal of the nation,—that
is, in the Supreme Court of the United States.[263] This means that the
Supreme Court “says what the law is.” This is the peculiar office of
courts of law. This is another way of saying that the sovereign, the
people of the United States, has delegated to the Supreme Court and
to inferior courts of the United States not legislative or executive
but judicial powers. The courts of law exercise judicial powers as the
President exercises executive and the Congress exercises legislative
powers,—in order to accomplish the purposes set forth in the Preamble
of the Constitution. The courts are empowered to accomplish this
purpose only in a judicial way.

105. The inferior courts, established by Congress, have such
jurisdiction as Congress in its wisdom sees fit to give them save that
the jurisdiction belonging to the Supreme Court cannot be given to an
inferior court; there can be but one Supreme Court. The relation of the
State courts to the courts of the United States is partly determined by
the Constitution, partly by act of Congress. The circumstances under
which a case in or from a State court may be transferred, or appealed,
to a federal court are various, but the essential reason for such
transfer is that the jurisdiction of the United States as defined by
the Constitution, a treaty, or an act of Congress, is involved. A case
or controversy not involving that jurisdiction cannot arise in any
federal court. The possible relations of the Constitution, treaties,
and acts of Congress to individuals (persons natural), to corporations
(persons artificial, as private corporations), and to States (public
corporations), are beyond calculation. The line of demarcation between
the jurisdiction of State courts and that of federal courts cannot
be fixed by any brief definition or survey. In some instances the
jurisdiction is a matter of choice by parties, the court that first
takes jurisdiction having it, as it were, by first instance, but in
such cases there exists by law a concurrent jurisdiction, judicial
procedure being open to parties in either the State or the federal
court. In practice, a court restricts itself to its own jurisdiction.

106. It has been said that one test of demarcation between the two
jurisdictions is the common law; that each State has the common law but
the United States has statute law only. This difference (if true) would
restrict federal courts to an exercise of judicial power delegated by
the Constitution and set forth in laws made by its authority, while the
State courts would administer justice in accord with the law of the
States which are both common law and statutory. It must be remembered,
however, that federal courts sit in the several States and administer
whatsoever law is the local (State) law, taking judicial notice of
State statutes, of decisions of State courts, of usages, of the common
law as existing in the State, and, therefore, exercising a jurisdiction
essentially the same as the State courts. Emphasis may well be placed
on the custom of federal courts to follow closely the decisions of
State courts,—the result being that State decisions become final in
federal courts as do federal decisions in State courts. But the States
cannot increase or diminish the jurisdiction of federal courts, nor
can Congress increase or diminish the jurisdiction of State courts.
Although both courts may have jurisdiction in certain cases, collisions
of authority are prevented by good sense and comity among State and
federal judges.

107. The essential power of any federal court is to exercise federal
judicial jurisdiction. This means, practically, that a federal court
does not and cannot exercise State powers. The converse also is true:
no State court can exercise federal powers, unless granted those
powers by the Constitution, a treaty, or an act of Congress; but a
State court exercising any federal powers, is thereby a federal court.
The Constitution provides that the judges in every State shall be
bound by the supreme law of the land, anything in the constitution or
laws of any State to the contrary notwithstanding. This solemn oath
of State judges to support the Constitution as the supreme law gives
them jurisdiction “to say what the law is,”[264] and howsoever rarely
they may exercise the power vested in them to do so, State judges may
take judicial notice of any law, State or federal, as harmonizing or
conflicting with the Constitution; this means that a State court may
pronounce an act of Congress unconstitutional, but the decision of
that court is not final: there is but one Supreme Court of the United
States.[265]

108. Territorial courts are to be distinguished from courts of the
United States. They are not federal courts as are the Supreme Court and
the inferior courts, namely, the Circuit Courts, the District Courts,
or the Court of Claims. Neither are they State courts.

The Constitution being made only for the people of the United
States,—that is, for the people of the United States inhabiting
States,[266] does not apply or extend to the territories unless
extended by act of Congress. The courts in a territory are created by
Congress and have such powers (or jurisdiction) as the act creating
them provides. But in creating them, Congress is limited by the
Constitution.[267] Congress also creates courts martial, but the
jurisdiction of these courts is always subject to inquiry by civil
courts. Fundamentally, the reason here is the supremacy of the civil
over the military authority in the American system of government.

109. A problem not infrequently arising in courts of law is the
solution of some political question involved. All political questions
are questions for the political department of the government to settle;
they lie wholly outside of the jurisdiction of the courts. Thus the
courts never decide as to the wisdom or folly of an executive or
legislative act,—and in one form or another, every act of Congress or
President is politically wise or unwise according to the political
belief of the critic. Nor do the debates over an act fix the meaning
of the act, with the court. Where the court was asked to refer to the
debates in Congress to determine the meaning of the act, it was said:

  All that can be determined from the debates and reports is that
  various members had various views, and we are left to determine
  the meaning of this act, as we determine the meaning of other
  acts, from the language used therein. There is, too, a general
  acquiescence in the doctrine that debates in Congress are not
  appropriate sources of information from which to discover the
  meaning of the language of a statute passed by that body.[268]

  The reason, [continues the court], is that it is impossible to
  determine with certainty what construction was put upon an act by
  the members of a legislative body that passed it by resorting to
  the speeches of individual members thereof. Those who did not speak
  may not have agreed with those who did, and those who spoke might
  differ from each other, the result being that the only proper way
  to construe a legislative act is from the language used in the act,
  and, upon occasion, by a resort to the history of the times when it
  passed.

110. In 1828 the Supreme Court sustained as a constitutional exercise
of the war power the right of the United States to acquire territory
by conquest or treaty.[269] The issue in the case was “the relation in
which Florida (at the time a Territory) stands to the United States.”
It was an issue in law, not in politics. Whether A or B is the lawful
governor of a State is an issue, when legally drawn, for the State
courts; but whether a community calling itself a State, is a member of
the Union, or should be admitted into it, under the Fourth Article of
the Constitution is a political question and is for Congress to decide.

  It rests with Congress to decide what government is the established
  one in a State. For as the United States guarantees to each
  State a republican form of government, Congress must necessarily
  decide what government is established in the State before it can
  determine whether it is republican or not. And when the senators
  and representatives of a State are admitted into the councils of
  the Union, the authority of the government under which they are
  appointed, as well as its republican character, is recognized by
  the proper constitutional authority. And its decision is binding
  on every other department of the government, and could not be
  questioned in a judicial tribunal.[270]

The right to decide such a political question is in Congress and not in
the courts.[271]

111. The final authority of American courts of law to construe
statutes and constitutions is distinctive. The court pronounces a law
unconstitutional and thus expounds the constitution. “This results,”
says Cooley, “from the nature of its jurisdiction.” Chief Justice
Marshall, in 1803, first applied this principle in a Federal court:

  The Government of the United States has been emphatically termed a
  government of laws and not of men.

  The Constitution is the supreme law of the land.

  _It is emphatically the province and duty of the judicial
  department to say what the law is._[272]

In these words is stated the essential doctrine of judicial supremacy.
As the doctrine is fundamental, the reason for it is essential to a
proper understanding of its vast import:

  That the people have an original right to establish for their
  future government such principles as in their opinion shall most
  conduce to their own happiness, is the basis on which the whole
  American fabric has been erected. The exercise of this original
  right is a very great exertion; nor can it, nor ought it to be
  frequently repeated. The principles, therefore, so established
  are deemed fundamental. And as the authority from which they
  proceed is supreme, and can seldom act, they are designed to
  be permanent. This original and supreme will organizes the
  government, and assigns to different departments their respective
  powers. It may either stop here or establish certain limits not
  to be transcended by those departments.... It is a proposition
  too plain to be contested, that the Constitution controls any
  legislative act repugnant to it; or that the Legislature may alter
  the Constitution by an ordinary act. Between these alternatives
  there is no middle ground. The Constitution is either a superior,
  paramount law, unchangeable by ordinary means, or it is on a level
  with ordinary legislative acts and, like other acts, is alterable
  when the legislature shall please to alter it. If the former part
  of the alternative be true, then a legislative act contrary to the
  Constitution is not law; if the latter part be true, then written
  constitutions are absurd attempts on the part of the people to
  limit a power in its own nature illimitable. Certainly all those
  who have framed written constitutions contemplate them as forming
  a fundamental and paramount law of the nation, and consequently
  the theory of every such government must be, that an act of the
  Legislature repugnant to the constitution is void.... It is
  emphatically the province and duty of the judicial department to
  say what the law is. Those who apply the rule to particular cases
  must of necessity expound and interpret that rule. If two laws
  conflict with each other, the courts must decide on the operation
  of each. So, if a law be in opposition to the Constitution, if
  both the law and the Constitution apply to a particular case, so
  that the court must either decide the case conformably to the law
  disregarding the Constitution, or conformably to the Constitution
  disregarding the law, the court must determine which of these
  conflicting rules governs the case. This is of the very essence of
  judicial duty.... Those, then, who controvert the principle that
  the Constitution is to be considered in court as a paramount law,
  are reduced to the necessity of maintaining that courts must close
  their eyes on the Constitution, and see only the law. This doctrine
  would subvert the very foundation of all written constitutions.
  It would declare that an act, which according to the principles
  and theory of our government is entirely void, is yet in practice
  completely obligatory.... It would be giving the Legislature a
  practical and real omnipotence with the same breath which professes
  to restrict their powers within narrow limits. That it thus
  reduces to nothing what we have deemed the greatest improvement on
  political institutions,—a written constitution,—would of itself
  be sufficient, in America, where written constitutions have been
  viewed with so much reverence, for rejecting the construction. But
  the peculiar expressions of the Constitution of the United States
  furnish additional arguments in favor of its rejection.[273]

The conclusion of the whole matter is:

  Thus the particular phraseology of the Constitution of the United
  States confirms and strengthens the principle, supposed to be
  essential to all written constitutions, that a law repugnant
  to the constitution is void; and that courts, as well as other
  departments, are bound by that instrument.[274]

112. The federal (or the State) judiciary, while final judge of
what the law is, is not the judge of what the law should be: such
action would be a violation of judicial functions and an assumption
of legislative functions.[275] The court in saying what the law is,
that is, what it means, does not attempt to say what the law should
be, that is, to make the law. Therefore it is perilous, as likely to
embarrass the court, for the court to be subject to the call of the
executive, or the legislative, to give an opinion “upon important
questions of law, and upon solemn occasions.”[276] The peril lies
in possible confusion of governmental functions, or, to use the
constitutional term, “offices.” The American people have delegated
judicial power to the courts: the people of the several States to
their State courts; the people of the United States, to the federal
courts; and “it is emphatically the province and duty of the judicial
department to say what the law is.”

113. This province the American judiciary occupies, this duty it
performs, with the result that it holds a unique place in political
history. At no other time, among no other people, in no other form of
government has the judiciary executed the office it executes in the
American system of government.

  It is the consciousness of the American people that law must
  rest upon justice and reason, that the constitution is a more
  ultimate formulation of the fundamental principles of justice
  and reason than mere legislative acts, and that the judiciary
  is a better interpreter of these fundamental principles than
  the Legislature,—it is this consciousness which has given such
  authority to the interpretation of the Constitution by the Supreme
  Court.[277]

Yet,—so remarks the Supreme Court itself,—

  The slightest consideration of the nature, the character, the
  organization, and the powers of (federal) courts will dispel any
  fear of serious injury to the government at their hands. While by
  the Constitution the judicial department is recognized as one of
  the three great branches among which all the powers and functions
  of the government are distributed, it is inherently the weakest of
  them all. Dependent as its courts are for the enforcement of their
  judgments upon officers appointed by the executive and removable
  at pleasure, with no patronage and no control of the purse or the
  sword, their power and influence rest solely upon the public sense
  of the necessity for the existence of a tribunal to which all may
  appeal for the assertion and protection of rights guaranteed by the
  Constitution and by the laws of the land, and on the confidence
  reposed in the soundness of their decisions and the purity of their
  motives.[278]

114. To the question, “What is constitutional law in the United
States?” the answer is, “Law as interpreted by the Supreme Court.”
In other countries, and, generally speaking, in all countries at all
times, until the institution of the political system of the United
States,—the American system of government,—the supreme law of the
land was the will of the executive (as in absolute monarchies), or
the supreme will of the legislative (as in Great Britain). So long
as the Supreme Court of the United States retains the confidence of
the American people, the decisions of that Court will remain the
authoritative exposition of American constitutional law.

It follows that the normal execution of the judicial office in America
determines the meaning of American constitutional law; or stated in
other words, in the decisions of the Supreme Court there are found
the formulation of the principles on which law in America is founded,
and the application of these principles in testing, as issues arise,
the acts of the legislative and the services of the administrative.
Therefore it is to the interpretation thus given by the judiciary that
we turn for an understanding of the exercise of offices,—legislative,
executive, or judicial, delegated as powers by the sovereign, the
people of the United States. Whatsoever is done, by either (so-called)
department of government in conformity with this delegation of powers
is constitutional; and whatsoever is done by either department in
conflict with this delegation of powers is unconstitutional. Whether
constitutional or unconstitutional it is the exalted and unique
office of the Supreme Court to determine. This Court therefore
touches American life at every point. Exhaustive examination of its
interpretation principles, laws, judicial decisions, arguments of
counsel, opinions of experts, writings of jurists, and the history of
society,—and such examination alone, answers the question, “What is
constitutional law in America?”

In attempting, then, to summarize, the essentials of American
constitutional law, it is from the decisions of the Supreme Court, as
from no other source, one must derive any authoritative interpretation.

115. The three departments of government are distinct.

  The legislative shall never exercise the executive and judicial
  powers, or either of them; the executive shall never exercise the
  legislative or judicial powers, or either of them; the judicial
  shall never exercise the executive or legislative powers, or either
  of them; to the end it may be a government of laws and not of
  men.[279]

This principle of separation of powers, or offices, of government, is,
for many purposes, not merely fundamental, but primary, in American
constitutional law. A department of government can execute only the
offices, or powers, delegated to it,[280] but the Legislature cannot
impose other than judicial duties upon courts of law, or judicial
duties upon other than the judiciary.[281]

It follows from this principle that acts done by the legislative, or
the judiciary, or the executive, in due course,—that is, according to
rules of procedure and in the mode required by law, are official acts
and are to be accredited as such.[282] Thus laws which appear on the
face of them to be attested by the proper officials of the two Houses,
duly signed by the Executive (or, passed over his vote as provided by
the Constitution), and published by the official authorized to publish
them are legislative acts, (laws) in a constitutional sense. So the
records of courts of law made and kept in due procedure, and officially
authenticated, are judicial records in a constitutional sense.

116. The original jurisdiction of the Supreme Court is co-extensive
with the judicial power delegated by the Constitution.[283] Congress
has power to give the inferior courts of the United States “original
jurisdiction in any case to which the appellate jurisdiction
extends.”[284]

In all cases in which the Constitution, or a treaty, or an act of
Congress is involved, the United States through some one of its courts
has jurisdiction.[285]

The exemption of an ambassador, public minister, or consul from suits
in particular courts “is the privilege, not of the person who happens
to fill the office, but of the State or government he represents.”[286]
Consuls are oftentimes citizens, not aliens; any exemptions or
privileges claimed by such a person accrue to him as consul being an
alien, not as consul being also a citizen, of the United States.

The admiralty jurisdiction of the United States extends over all
water on which commerce is carried on between different States, or
nations.[287] The principle of national commercial jurisdiction is
essentially that of national political jurisdiction, a jurisdiction
thus declared:

  We hold it to be an incontrovertible principle that the Government
  of the United States may, by means of physical force, exercised
  through its official agents, execute on every foot of American
  soil the powers and functions that belong to it. This necessarily
  involves the power to command obedience to its laws....[288]

It is a fundamental of our constitutional law that no suit can be
maintained against the United States, in any court, without express
authority of Congress; and the United States cannot be sued in the
courts of any State in any case.[289] It is the sovereign right of the
United States not to be sued. To the extent that a State is sovereign
it has the same right, and “These States are constituent parts of the
United States. They are members of one great empire—for some purposes
sovereign, for some purposes subordinate.”[290] The physical boundaries
of a State, constituting a political, not a judicial question, must
be determined by legislative authority, yet if the United States is a
party to a case involving the issue of territorial boundary, the case
falls within the judicial power,—that is, within the jurisdiction of
the courts of the Union.

  The States of the Union have agreed in the Constitution that
  the judicial power of the United States shall extend to _all_
  cases arising under the Constitution, laws, and treaties of the
  United States, without regard to the character of the parties
  (excluding of course, suits against a State by its own citizens,
  or by citizens or subjects of foreign states), and equally to
  controversies to which the United States shall be a party, without
  regard to the subject of such controversies, and that (the Supreme
  Court) may exercise original jurisdiction in all such cases [in
  which a State shall be a party] without excluding those in which
  the United States may be the opposite party.[291]

In other words, the United States possesses adequate governmental
authority and jurisdiction to secure the large purposes outlined in
the Preamble to the Constitution. The United States has judicial
jurisdiction in all cases arising under the Constitution, the laws and
the treaties of the United States “whoever may be the parties.”[292]
This principle is of far-reaching effect; no party can be exempt.

117. A corporation created by a State is a citizen of that State
for many purposes, but cannot be a citizen of another State because
created by the former State. Outside of the State of its creation
it is a foreign corporation and possesses only such privileges as
are granted to it. This means that rights, privileges, judgments
accruing to or possessed by a corporation, say created by Pennsylvania
and in Pennsylvania, do not accrue to and are not possessed by that
corporation, say in Ohio, unless conferred by Ohio and possessed by
the corporation within Ohio, under laws of Ohio, and by decision of
Ohio courts. The principle here is the familiar one of jurisdiction.
No State has power beyond its own jurisdiction and “the courts of no
country execute the penal laws of another.”[293]

The suability of a State involves its sovereignty and its honor and
good faith. The constitutional law of America is that a State in the
Union cannot be compelled to perform its contracts, although attempts
on its part to avoid them may be judicially resisted, and State laws
impairing the obligation of contracts are void. Yet the legislative
department of a State represents its polity and its will and by
every principle of justice is called upon to hold public obligations
inviolate.

  Any departure from this rule, except for reasons most cogent (of
  which the Legislature and not the courts, is the judge) never fails
  in the end to incur the odium of the world, and to bring lasting
  injury upon the State itself. But to deprive the Legislature of
  the power of judging what the honor and safety of the State may
  require, even at the expense of a temporary failure to discharge
  the public debts, would be attended with greater evils than such
  failure can cause.[294]

118. The judicial power of the United States extends, under the
Constitution to controversies between _citizens of different States_
and the Judiciary Act confers jurisdiction strictly within the meaning
of the term.[295]

_States_, as the word is used in the Constitution, means only members
of the Union; a Territory is not a State; the citizen of a Territory is
not a citizen of a State and any controversy at law which he may have
with another person is not “a controversy between citizens of different
States,” and therefore does not come within the judicial jurisdiction
of the United States. Of course the limitation applies to artificial
persons,—corporations created by a State.

  A corporation is not a citizen of the State and it cannot maintain
  a suit in a court of the United States against the citizen of a
  different State from that by which it was chartered, unless the
  persons who compose the corporate body are all citizens of that
  State.[296]

The jurisdiction of American courts is co-extensive with the power that
creates them. Thus the jurisdiction of federal courts depends in no way
upon the State, and State judges “possess an absolute independence of
the United States.”

  The Constitution has proceeded upon a theory of its own, and given
  or withheld powers according to the judgment of the American
  people, by whom it was adopted. We (_i. e._ the Supreme Court)
  can only construe its powers, and cannot inquire into the policy
  or principles which induced the grant of them. The Constitution
  has presumed (whether rightly or wrongly we do not inquire) that
  State attachments, State prejudices, State jealousies, and State
  interests, might sometimes obstruct, or control, or be supposed
  to obstruct or control, the regular administration of justice.
  Hence, in controversies between States; between citizens of
  different States; between citizens claiming grants under different
  States; between a State and its citizens, or foreigners, and
  between citizens and foreigners, it enables the parties, under the
  authority of Congress, to have the controversies heard, tried, and
  determined before the national tribunals. No other reason than
  that which has been stated can be assigned, why some, at least,
  of these cases should not have been left to the cognizance of the
  State courts. In respect to the other enumerated cases—the cases
  arising under the Constitution, laws, and treaties of the United
  States, cases affecting ambassadors and other public ministers,
  and cases of admiralty and maritime jurisdiction—reasons of a
  higher and more extensive nature, touching the safety, peace, and
  sovereignty of the nation, might well justify a grant of exclusive
  legislation.[297]

From the principle here given it may be deduced that cases or
controversies in State courts are removable from them into federal
courts if the case or controversy involves the Constitution, a treaty
or an act of Congress.[298]

  But a prisoner in custody under the authority of a State should
  not, except in a case of peculiar urgency, be discharged by a court
  or judge of the United States upon a writ of _habeas corpus_, in
  advance of any proceedings in the courts of the State to test the
  validity of his arrest or detention.[299]

119. A federal court sitting within a State is a court of that State
within the meaning of the Constitution and laws of the Union, “and as
such, has an equal right with the State courts to fix the construction
of the local law.”[300] A State tribunal’s decision must conform to
that of the Supreme Court of the United States, but a federal court
sitting within a State follows the highest State tribunal unless the
decision of that tribunal has been set aside by the Supreme Court. Such
procedure “tends to preserve harmony in the exercise of the judicial
power, in the State and federal tribunals.” This means that the statute
law of a State,—and a fixed and received construction by a State in its
own courts, makes a part of the statute law,—is accepted by the federal
courts sitting in the State. But the federal court there is not bound
to follow such State precedents and authorities; the court possesses
a jurisdiction independent of that conferred by State authority.[301]
Thus it may be stated as accepted American constitutional law that
where there are two co-ordinate jurisdictions, and especially “with
regard to the law of real estate and the construction of State
constitutions and statutes” and where are concerned “the doctrines of
commercial law and general jurisprudence” the federal courts sitting
in a State exercise their own judgment, “but even in such cases, for
the sake of harmony and to avoid confusion, the federal courts will
lean towards an agreement of views with the State courts, if the
question seems to them balanced with doubt.”[302]

To the extent that a federal court sitting within a State follows State
laws and decisions, to that extent is there a common law of the United
States. There is, however, no national common or customary law of the
United States; its law is statutory. But the interpretation of the
Constitution by the judicial power of the United States

  is necessarily influenced by the fact that its provisions are
  framed in the language of the English common law, and are to be
  read in the light of its history. The code of constitutional and
  statutory construction which, therefore, is gradually formed by
  the judgments of (the Supreme) Court, in the application of the
  Constitution and the laws and treaties made in pursuance thereof,
  has for its basis so much of the common law as may be implied in
  the subject, and constitutes a common law resting on national
  authority.[303]


  NOTE: For an account of acts of Congress declared unconstitutional
  by the Supreme Court see _The Supreme Court and Unconstitutional
  Legislation_, B. F. Moore, Columbia University Studies, vol. liv.,
  No. 2, 1913.




CHAPTER IX

THE LAW OF STATE COMITY, TERRITORIES AND POSSESSIONS


120. The States comprising the Union possess equal powers and are
subject to the same limitations. This means, in brief, that they have,
respectively, the same jurisdiction. The sovereignty of one State is
equal to the sovereignty of another. Because of this equality, they
are all subject to the same rules of State comity. The aspects of this
mutual equality are numerous and are the subject of provisions of the
Constitution.[304]

In so far as a State possesses jurisdiction it may exercise
authority.[305] This rule is fundamental in American constitutional
law. The Constitution of the United States confers no new power of
jurisdiction by simply regulating the effect of the acknowledged
jurisdiction over persons and things within a State.[306] Thus a State
cannot make its law valid in another State; the validity of a State law
depends upon the will of the State in which the validity is claimed.
From this it follows that “the jurisdiction of any (State) court
exercising authority over a subject (_i. e._, persons or property) may
be inquired into in every other (State) court when the proceedings in
the former are relied upon and brought before the latter by a party
claiming the benefit of such proceedings.”[307]

So, despite the fourth article of the Constitution as to “full faith
and credit,” and “public acts, records, and judicial proceedings” in
the several States, “a judgment rendered in any State may be questioned
in a collateral proceeding in another State.”[308]

121. This principle is disclosed by examination of the States as civil
and political entities, for:

  It is equally well settled that the several States of the Union are
  to be considered in this respect as foreign to each other, and that
  the courts of one State are not presumed to know, and therefore,
  not bound to take judicial notice of the laws of another State.[309]

Therefore, whenever it becomes necessary for a court of one State, in
order to give full faith and credit to a judgment rendered in another
State, to ascertain the effect which it has in that State, the law of
that State must be proved, like any other fact.[310]

But national courts are bound to take notice without proof of the laws
of each of the States.[311] The principle is thus laid down by Chief
Justice Marshall: “The laws of a foreign nation, designed only for the
direction of its own affairs, are not to be noticed by the courts of
other countries, unless proved as facts.”[312] For national purposes
embraced by the Constitution, the States and their citizens are one,
united under the same sovereign authority, and governed by the same
laws. In all other respects the States are necessarily foreign to and
independent of each other,—their constitutions and forms of government
being, although republican, altogether different, as are their laws
and institutions.[313] In government, jurisdiction is co-extensive
with sovereignty. Faith, credit, public acts, records, or judicial
proceedings that are valid in a State are, when proved, valid in
every other State, and Congress possesses the power to prescribe by
general laws the manner and the effect of proof. This supreme power is
incidental, as well as necessary, to national sovereignty as realized
in “the more perfect Union.”[314]

122. The citizens of each State are entitled to all privileges and
immunities of citizens in the several States.[315] But a corporation
is not a citizen, being but an artificial person created by the
Legislature and possessing only the powers and attributes which the
Legislature has prescribed.[316] This conclusion is inevitable from
the principle of jurisdiction. No State can create or give powers to
a corporation in another State, or powers that will be valid there. A
corporation created by a Legislature has powers and privileges only
within the jurisdiction of that Legislature; or, as is said: “The
corporation being the mere creation of local law, can have no legal
existence beyond the limits of the sovereignty where created.”[317]
Thus a State may admit or exclude foreign corporations, and the
corporation cannot maintain a claim of citizenship to right to enter
the State.

123. The words “privileges and immunities of citizens” are of
comprehensive meaning as determined by the courts from time to time
as issues (cases or controversies) come before them. The clause in the
Constitution

  plainly and unmistakably secures and protects the right of a
  citizen of one State to pass into any other State of the Union for
  the purpose of enjoying in lawful commerce, trade, or business,
  without molestation; to acquire personal property; to take and hold
  real estate; to maintain actions in the courts of the State, and to
  be exempt from any higher taxes or excises than are imposed by the
  State upon its own citizens.[318]

Or, as the principle is further stated: the sole purpose of the
constitutional provision is

  to declare to the several States, that whatever those rights
  (_i. e._, the rights of citizens of that State),—as you grant or
  establish them to your own citizens, or as you limit or qualify,
  or impose restrictions on their exercise, the same, neither more
  nor less, shall be the measure of the rights of citizens of other
  States within your own jurisdiction.[319]

But the citizen from another State must comply with the laws of the
State into which he comes before he can have the protection of its
sovereignty.

  The Constitution forbids only such legislation affecting citizens
  of the respective States as will substantially or practically put a
  citizen of one State in a condition of alienage when he is within,
  or when he removes to, another State, or when asserting in another
  State the rights that commonly appertain to those who are part of
  the political community known as the People of the United States,
  by and for whom the government of the Union was ordained and
  established.[320]

124. The test here is jurisdiction. No State has jurisdiction that is
denied it by the Constitution of the United States. Each State has
power so far as its jurisdiction, or sovereignty, extends, to declare
what shall be offences against its laws, and citizens of other States
within its jurisdiction are subject to those laws.[321]

Fugitives from justice escaping from a State or Territory to another
are subject to extradition.[322] Upon the Executive of the State or
Territory in which the accused is found rests the responsibility of
determining, in some legal mode, whether he is a fugitive from the
justice of the demanding State. It is within the jurisdiction of the
State or Territory into which the accused has fled to demand competent
proof that he is in fact a fugitive from the demanding State; otherwise
the jurisdiction of the demanding State would extend over the State
or Territory into which the accused has fled. But such proof being
established, the accused “shall be delivered up” as the federal
Constitution prescribes.[323] The principle here is that of State
jurisdiction as limited by the supreme law.

125. But the question of powers, or rights, by extradition, raises the
question of right of asylum. Do

  the States of the Union occupy towards each other, in respect
  to fugitives from justice, the relation of foreign nations, in
  the same sense in which the general government stands towards
  independent sovereignties, on that subject; and, in the further
  assumption that a fugitive from justice acquires in the State to
  which he may flee some State or personal right of protection,
  improperly called a right of asylum, which secures to him exemption
  from trial and punishment for a crime committed in another State,
  unless such crime is made the special object or ground of his
  rendition?[324]

To answer this question in the affirmative is to violate the sole
object of the Constitution and acts of Congress concerning the
surrender of fugitives from justice. Foreign nations stand in treaty
relations with the United States and with each other. The States
composing the American Union do not stand, and by the Constitution,
cannot stand in treaty relations with one another or with any other
State or power.[325]

126. A fugitive from a foreign nation seeking refuge in the United
States is not extraditable unless by the terms of the treaty
between that nation and the United States. There is nothing in the
Constitution, or in the Statutes at large of the United States in
reference to interstate rendition of fugitives from justice which can
be regarded as establishing any compact between the States of the Union
(such as a treaty between the United States and another nation does
or may contain), limiting their operation to particular or designated
offenses. And it is questionable whether the States, or any of them,
could constitutionally enter into any agreement or stipulation one
with another for the purpose of defining or limiting the offenses for
which fugitives would or should be surrendered. “The plain answer is
that the laws of the United States do not recognize any right of asylum
on the part of the fugitive from justice in any State to which he has
fled.”[326] The principle here laid down finds further explication: To
apply the rule of international, or foreign extradition to interstate
rendition involves the confusion of two essentially different things,
which rest upon entirely different principles.[327] In the former,
the extradition depends upon treaty contract, or stipulation, which
rests upon good faith, and in respect to which the sovereign upon whom
the demand is made can exercise discretion, as well as investigate
the charge on which the surrender is demanded, there being no rule of
comity under and by nature of which independent nations are required or
expected to withhold from fugitives within their jurisdiction the right
of asylum. In the matter of interstate rendition, however, there is
the binding force and obligation, not of contract, but of the supreme
law of the land, which imposes no conditions, or limitations, upon
the jurisdiction and authority of the State to which the fugitive is
returned.[328]

127. The decision as to whether a State possesses a republican form
of government,—or what government in a State is the lawful government
rests with the political, not the judicial power. “It is the province
of the court to expound the law, not to make it.”[329] Thus the courts
follow the political authority.

  In the case of foreign nations, the government acknowledged by
  the President is always recognized in the courts of justice; and
  this principle has been applied, by the act of Congress, to the
  sovereign States of the Union.[330]

If the President errs, it is within the power of Congress to apply the
proper remedy. “The sovereignty in every State resides in the people
of that State, and they may alter and change their form of government
at their own pleasure.”[331] But the United States guarantees to each
a republican form of government.[332] “No particular government is
designated as republican, neither is the exact form to be guaranteed in
any manner especially designated.”[333]

  The guarantee necessarily implies a duty on the part of the
  States themselves to provide such a government. All the States
  had governments when the Constitution was adopted. In all, the
  people participated to some extent, through their representatives
  elected in the manner specially provided. These governments the
  Constitution did not change. They were accepted precisely as they
  were, and it is, therefore, to be presumed that they were such as
  it was the duty of the States to provide. Thus we have unmistakable
  evidence of what was republican in form, within the meaning of that
  term, as employed in the Constitution.[334]

Conformably with the character of this federal guarantee of the
republican form, the Supreme Court has decided that:

  In the Constitution the term _State_ most frequently expresses
  the combined idea ... of people, territory, and government. A
  _State_, in the ordinary sense of the Constitution, is a political
  community of free citizens, occupying a territory of defined
  boundaries, and organized under a government sanctioned and
  limited by a written constitution, and established by the consent
  of the governed. It is the union of such States, under a common
  Constitution, which forms the distinct and greater political unit,
  which that Constitution designates as the United States, and makes
  of the people and States, which compose it, one people and one
  country.... The preservation of the States, and the maintenance of
  their government, 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 of its
  provisions, looks to an indestructible Union of indestructible
  States.[335]

The constitutional rules of State comity are therefore rules of
national jurisdiction, and operate as limitations on the jurisdiction
of the several States. The purpose of these rules, as that of every
rule of that jurisdiction is essentially to preserve that jurisdiction,
or sovereignty,—and is sufficiently indicated in the Preamble to the
Constitution.[336]

128. The admission of a new State into the Union is a political act
exclusively within the power of Congress, save that no new State shall
be erected within the jurisdiction, or by the conjunction, of States or
parts of States, without the consent of the Legislatures of the States
concerned, as well as of Congress.[337] This entire act is exclusively
political, but the State once admitted into the Union comes within the
jurisdiction of the United States as the Constitution provides.[338]
The State thus admitted becomes entitled to and possesses all rights
of sovereignty and dominion,—that is, rights of jurisdiction, which
belonged to the original States.[339]

129. The act enabling the inhabitants of a Territory to adopt a
constitution and become a State in the Union usually prescribes that
the proposed constitution and government shall be republican in form,
shall make no distinction in civil or political rights on account
of race or color, shall not be repugnant to the Constitution of the
United States, or to the principles of the Declaration of Independence,
and shall comply with such conditions as Congress at the time may
propose.[340] On June 16, 1906, Congress passed an enabling act under
which, four years later, Arizona sought admission into the Union.
The new constitution submitted to Congress provided for state-wide
recall of State officials. To this provision Congress objected and
made the admission of the Territory conditional upon the amendment of
its proposed constitution by eliminating the objectionable provision.
Arizona complied with the congressional condition and was admitted;
thereupon speedily amended its constitution by re-inserting the
objectionable clauses. Congress has no power to impose conditions,
clauses, or provisions upon the constitution of a State; yet, a
provision of a State constitution in conflict with the Constitution of
the United States is null and void.[341]

130. As the Union is an indestructible Union of indestructible States,
it is a principle of American constitutional law: once a State, always
a State. The inhabitants of a Territory having been erected by Congress
into inhabitants of a State, territorial jurisdiction, created by act
of Congress ceases, and State jurisdiction exists. It is this State
jurisdiction in the Union which is indestructible, which can neither
be extended, nor diminished by Congress. The equality and equivalency
of the States in the Union is a fundamental in American constitutional
law. The jurisdiction of a Territory differs from that of a State as a
governed differs from a self-governing community.

131. Congress has power “to make all needful rules and regulations
respecting the territory and other property belonging to the United
States.”[342] This means the power to govern, a power necessary to
sovereignty, and the “inevitable consequence of the right to acquire
territory; or, as the jurisdiction over a Territory does not belong to
any State in the Union, its government lies by implication (if not by
necessity) with the United States.”[343]

In creating a territorial jurisdiction, Congress exercises, but does
not part with its powers. The power to govern Territories is not
conditioned. Such Territories

  are but political subdivisions of the outlying dominion of the
  United States. Their relation to the general government is much
  the same as that which counties bear to the respective States, and
  Congress may legislate for them as a State does for its municipal
  organizations. The organic law (“enabling act”) for a Territory
  takes the place of a constitution as the fundamental law of the
  local government. It is obligatory on, and binds the territorial
  authorities; but Congress is supreme, and for the purposes of
  this department of its governmental authority, has all the powers
  of the people of the United States, except such as have been
  expressly, or by implication reserved in the prohibitions of the
  Constitution.[344]

132. Congress has full and complete legislative authority over the
people of the Territories, and all departments of the territorial
government. It may do for the Territories what the people under the
Constitution of the United States may do for the States. That the
Supreme Court in 1901 gave a new meaning to the jurisdiction of
Congress over territory belonging to the United States is now a matter
of history. By that decision the power to govern is co-extensive with
the power to acquire territory,—and this means sovereignty. Territorial
acquisitions are wholly subject to the will of Congress. It may govern
them as it sees fit. States, not Territories, are guaranteed by the
United States “a republican form of government.” The word “citizens”
as used in the Constitution does not include inhabitants of such
Territories.[345]

  The Constitution of the United States was ordained and established
  by the people of the United States for themselves, for their own
  government, and not for the government of the individual States.
  Each State established a constitution for itself, and, in that
  constitution, provided such limitations and restrictions on the
  powers of its particular government as its judgment dictated. The
  people of the United States framed such a government for the United
  States as they supposed best adapted to their situation, and best
  calculated to promote their interests. The powers they conferred on
  this government were to be exercised by itself; and the limitations
  on power, if expressed in general terms, are naturally, and we
  think necessarily, applicable to the government created by the
  instrument.[346]

But the government thus formed under the Constitution is the government
of “the more perfect Union,” which is an “indestructible Union of
indestructible States.” By constitutional law, indestructibility is not
a quality of any territory under the jurisdiction of the United States.

133. The rights of the inhabitants of such territory are determined
by Congress. This power of Congress seems unlimited, but the Supreme
Court of the United States disclaims “any intention to hold that the
inhabitants of these territories are subject to an unrestrained power
on the part of Congress to deal with them upon the theory that they
have no rights which it is bound to respect.”[347] What limitation
then, if any, is there on Congress, in exercising its powers over such
territory?

The Court replies:

  There are certain principles of natural justice inherent in the
  Anglo-Saxon character, which need no expression in constitutions
  or statutes to give them effect to secure dependencies against
  legislation manifestly hostile to their real interests.[348]

But the power of Congress to govern Territories, (“dependencies,”
“outlying possessions”) is, by present constitutional law, exercisable
at the will of Congress.[349] The essential matter is of jurisdiction.
The United States is a sovereignty; for some purposes the several
States comprising the Union are sovereign,[350] but according to
American constitutional law, a Territory, dependency, or outlying
possession belonging to the United States is not sovereign, and
possesses no powers, rights, privileges, or attributes of sovereignty.
The principle may be stated thus: To whatsoever extent Congress
exercises jurisdiction, to that extent it governs; its functions are
legislative and essentially political; to the extent that they are
political they are sovereign.[351]




CHAPTER X

THE LAW OF LIMITATIONS


134. The government of the United States, as also that of each State,
is a government of limited powers. In our day we speak of either
government as one of _limitations_; in the eighteenth century the
equivalent expression was “checks and balances.”[352] Fundamentally,
American constitutional law is the law of constitutional limitations.
These limitations confront us at whatever point we consider American
law and government. Sovereignty,—the people of the United States,
or the people of a State,—has never delegated all its powers to
government, and never any of them without limitations.[353] Written
constitutions are limitations of delegated powers. But powers
delegated to what we commonly call a department,—as the legislative,
the executive, or the judicial,—are sufficient for the necessary and
proper performance of the functions (or as constitutional law would
say, “execution of the office”) of the department. This concept of the
nature of the grant of powers is fundamental; on no other concept of
power can government in America be operated.

It remains then to know the scope and character of these checks and
balances,—these limitations,—which, however obscure, distinguish
constitutional law and government in America. In the federal system,
the government of the United States is balanced against that of the
States, the office, or function of the one, operating as a limitation
on the office or function of the other. This, unquestionably, is the
essential, or principal limitation in the American civil system. It
discloses itself in the frequent question whether a public service
shall be done by the United States or by the State,—touching such
matters as public health, public safety, public morals, commerce,
labor, and others. Here there always is the question of authority,
whether it is State or federal, and, if any, to what extent? And if
there is limitation, is it of State authority by federal, or of federal
authority by State,—or, is it of both by fundamental limitations?

Passing the mutual limitation of the two governments, we come to
limitations of each, and these limitations are similar. Powers of the
Senate counterbalance powers of the House; powers of the Legislative
counterbalance those of the Executive; powers of the Judicial
counterbalance powers of the Executive and the Legislative. If the
President nominates, the Senate may refuse to conform; if he negotiates
a treaty, the Senate may refuse to ratify it. If President or federal
Judge fails to execute his office, the House may impeach, and the
Senate convict of “high crimes and misdemeanors.” If members of Senate
or House fail to satisfy their constituents, these may elect other men
as their successors. No office in the American system of government is
for life, though it may be for good behavior. Lincoln states the whole
case:

  By the frame of government under which we live, this same people
  have wisely given their public servants but little power for
  mischief; and have, with equal wisdom, provided for the return of
  that little into their own hands at very short intervals. While
  the people retain their virtue and vigilance, no administration by
  any extreme of wickedness or folly, can very seriously injure the
  government in the short space of four years.[354]

135. Of checks on the Executive there are three: concerning his
election; concerning his powers, or office, and concerning his
removal from office. He is elected by a few persons, technically
called “electors.”[355] Each State appointing as its Legislature may
direct as many “electors” as the whole number of its Senators and
Representatives to which it is entitled in Congress. Popular election
of these “electors” is, in constitutional law, their appointment by
the State legislatures. The so-called popular vote is unknown to the
Constitution.[356]

The method of deciding disputed presidential elections, provided in
the Constitution, was modified by adoption of the Twelfth Amendment
in 1804. The Amendment means that if the decision is not made by the
presidential electors by a certain time, the election shall go to the
House of Representatives, in case of the President; and to the Senate,
in case of the Vice-President. The vote in the House is by States;
the Senators represent States. Thus the States, at a critical time,
become the check on the United States in the selection of President and
Vice-President.

That the President (and by implication, the Vice-President) must
be native-born American citizens is a constitutional limitation of
candidacy.

136. Of limitation of executive powers, the exception of the pardoning
power in cases of impeachment, and of command of the State militia
save when called into the actual service of the United States[357]
are specified,—or, as commonly stated in legal language,—“expressed,”
not “implied.” So too is the limitation of the President’s appointing
power during recess of the Senate,—the appointee’s commission expiring
“at the end of the next session.”[358] What limitations of executive
power are implied in the Constitution is largely a matter of political
interpretation. The practical question here is of confusion of
functions, or offices. Thus the Executive may not exercise legislative
or judicial functions. This conforms to the theory of separation
of governmental functions expressed or implied in every American
constitution.

Yet Congress may impose duties upon the President which are essentially
legislative, as, for example, by empowering him to suspend, by
proclamation, the collection of duties on articles from a nation which,
by reciprocity, has suspended collection of duties on certain imports
from the United States. Does the President in such a case transcend
executive office?

  The true distinction is between the delegation of power to make the
  law, which necessarily involves a discretion as to what it shall
  be,—and conferring authority, or discretion as to its execution, to
  be exercised under and in pursuance of the law. The first cannot be
  done; to the latter no valid objection can be made.[359]

A very large proportion of the bills presented to Congress originate in
the executive department. But Judge Ranney’s distinction (stated above)
expresses the essential difference: it is Congress that determines
what the law shall be. The bill, or measure, proposed, may come from
a private citizen, or a State Legislature, or a railroad directorate,
or the War Department, or a Committee of the House, or from some other
source: it is Congress alone that can make it law. There is, however,
a powerful check on the Executive as suggesting legislation: the check
of public opinion, of custom, of precedent. These and like checks are
sometimes called the limitations of the unwritten constitution.

137. The third check on the Executive is of removal from office for
cause, by impeachment, in which procedure the House, the Senate, and
the Chief Justice of the United States have definite offices.[360]
Practically this check is utilized on political grounds; therefore
it cannot be measured strictly as a process in law, although it is
under a procedure distinctively in constitutional law. The check on
the election of the Executive is essentially political, but that on
the pardoning power, and on the command of the State militia is not
political: yet all these checks, or limitations, are constitutional.

138. The constitutional limitations of the power of Congress,—checks on
federal legislative power,—include term of service, qualifications for
office, and authority in legislation. The large limitation is of term
of service: six years for Senators; two years for Representatives. The
people of the United States delegate legislative powers to Congress
for a limited time. In an absolute monarchy there is no legislative,
nor is there a time limit on the monarch as law-maker. Lincoln touched
the vital spot when he said that the people have given their public
servants but little power for mischief, having provided for the return
into their own hands at very short intervals what little power they
have delegated. Were Congress a corporation, with perpetual charter,
and filling vacancies in its membership, it would, for practical
purposes, exercise the office of sovereignty and would exercise power
without limitation. The delegation of legislative power by the people
of the United States is not to Senators or to Representatives, but to
Congress, consisting of a Senate and a House of Representatives, and
organized and proceeding according to the Constitution. The question
in America is not alone, What will Congress do? but also, What can
Congress do?

139. The expressed limitations of the power of Congress are that

(1) All duties, imposts, and excises shall be uniform throughout the
United States.[361]

(2) No appropriations of money to raise and support armies shall be for
a longer period than two years.[362]

(3) Militia officers must be appointed by the respective States.[363]

(4) No bill of attainder or _ex post facto_ law shall be passed.[364]

(5) No tax or duty shall be laid on exports from any State.[365]

(6) No discrimination shall be made as to ports of entry or the
regulation of shipping.[366]

(7) No title of nobility shall be granted by the United States.[367]

(8) Neither House, during the session of Congress, shall, without the
consent of the other, adjourn for more than three days, nor to any
other place than that in which the two Houses shall be sitting.[368]

(9) Revenue bills shall originate in the House of Representatives.[369]

(10) No Senator or Representative, during the time for which he is
elected, can be appointed to any civil office under the United States,
which shall have been created, or the emoluments of which shall have
been increased during such time; and no person holding any office
under the United States shall be a member of either House during his
continuance in office.[370]

(11) No act of Congress concerning treason can provide for conviction
“unless on the testimony of two witnesses to the same overt act, or on
confession in open court.”[371]

(12) A bill of attainder of treason is not a bill of attainder, but
no bill of attainder of treason shall work corruption of blood, or
forfeiture except during the life of the person attained.[372]

(13) A new State cannot be erected within the jurisdiction of another
State, or be formed by the junction of two or more States, or parts of
States, without consent of their respective legislatures.[373]

(14) The power of Congress to make rules and regulations respecting the
territory or other property belonging to the United States cannot be
exercised so as to prejudice the claims of any particular State.[374]

140. While the limitations thus far cited are specific and expressed,
they go less to the fundamentals of government and civil rights than
do other limitations expressed in the Constitution, and notably in the
Amendments.[375]

It is not unusual that a State constitution declares that to guard
against transgressions of the high powers of government delegated
by the people through them, everything in the article, commonly
known as the Bill of Rights, is excepted out of the general powers
of government, and shall forever remain inviolate. The first ten
Amendments of the Constitution are its Bill of Rights, and are a
limitation not only of legislative powers but also of executive powers
vested in the President, and of judicial powers vested in the Supreme
and inferior courts of the United States.[376]

As respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging freedom of speech or the press, or the
right of the people peaceably to assemble and to petition to government
for a redress of grievances, Congress can make no law whatever.[377]

Nor can Congress infringe the right of the people to keep and bear
arms, or violate their right to be secure in their persons, houses,
papers, and effects, or pass any law holding a person to answer for a
capital or otherwise infamous crime unless on presentment or indictment
of a grand jury, except in cases arising in the land or naval forces,
or in the militia when in the actual service of the United States in
time of war, or public danger; or pass any law compelling any person
to be subject for the same offence twice to be put in jeopardy of life
or limb, or be compelled in any criminal case to be a witness against
himself, or be deprived of life, liberty, or property, without due
process of law; or pass any law taking private property for public use
without just compensation.[378]

The practical effect of the limitations expressed in the Fifth
Amendment can be known only by judicial interpretation, and decision
of cases instituted under it; no theoretical definition can anticipate
these decisions of the Supreme Court. The principle involved is the
protection of certain fundamental rights of the people. In a similar
manner do the Sixth, Seventh, and Eighth Amendments guard fundamental
rights and limit the legislative power delegated to Congress by the
people of the United States. This means that Congress has no power to
deny or to disparage rights enumerated in these Amendments which are,
as a group, enumerative of rights at common law. Nor are the rights
enumerated, or set forth, in the Constitution as (practically) excepted
out of the powers of government, and forever inviolate, the only rights
which Congress, in exercising its powers, is inhibited from violating.
Other and unmentioned rights of the people are distinctly implied,[379]
as retained by them, and the Tenth Amendment is a general limitation of
Congress, President, and Courts, for it declares that “The powers not
delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the
people.”[380]

141. The line of demarcation between powers delegated and powers
reserved has always been, and doubtless always will be, in dispute. The
question involved is political as well as constitutional. The abolition
of slavery by the Thirteenth Amendment excludes pro-slavery legislation
of any kind affecting the United States or any place subject to its
jurisdiction. In like manner the Fourteenth Amendment forbids Congress,
or any State, to assume or pay any debt, or obligation incurred in aid
of insurrection or rebellion against the United States, or any claim
for the loss or emancipation of any slave. All these limitations of
legislative power are practical guides and measurements by which the
judicial power,—the law courts,—can determine what the law is, whether
the act of Congress conflicts with the Constitution. It is largely
through these expressed limitations that the judiciary becomes a check
on the legislative.[381]

142. The limitations of the powers of the States are numerous and
specific. As to limitations of State power (_i. e._, the power of the
State government, executive, legislative, judicial, administrative),
within State jurisdiction, the several State constitutions alone
are authoritative and final.[382] The Union is an indestructible
Union of indestructible States, yet the States composing the Union
are under limitations as members of that Union. Except as to the
places of choosing senators, Congress may at any time prescribe
the times, places, and manner of holding elections of senators and
representatives.[383]

Congress has exclusive jurisdiction over the District of Columbia, and
over places purchased from any State, and over federal property.[384]

But the Constitution enumerates limitations of the States, each of
which eliminates sovereignty from the State and all together, with some
other limitations, reduce a State to what Hamilton, in _The Federalist_
calls “residuary sovereignty.”[385]

  No State shall enter into any treaty, alliance, or confederation;
  grant letters of marque or reprisal; coin money; emit bills of
  credit; make anything but gold and silver coin a tender in payment
  of debts; pass any bill of attainder, _ex post facto_, law, or
  law impairing the obligation of contracts, or grant any title of
  nobility.[386]

These limitations are of power usually classed as sovereign. Of similar
scope are the limitations, prescribed by the Constitution, of State
power of taxation,—that is, of laying imposts or duties; of keeping
troops or ships of war; of entering into any agreement with another
State, or with a foreign power; of engaging in war, unless actually
invaded, or in imminent danger of invasion, not admitting of delay.
None of these powers can a State in the Union exercise without the
consent of Congress.[387]

143. When called into the actual service of the United States, the
State militia are under the control of the President,—a limitation of
the power of the State executives.[388] The Supreme Court of the United
States has original jurisdiction in all cases in which a State is a
party,[389] except in cases commenced or prosecuted against a State by
citizens of another State, or by citizens or subjects of any foreign
State, in which cases the judicial power of the United States has no
jurisdiction whatever.[390] Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall have been
duly convicted shall exist in a State.[391] No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; or deprive any person of life, liberty,
or property, without due process of law, or deny to any person within
its jurisdiction the equal protection of the laws.[392] Denial of the
right to vote by a State to electors qualified as electors by the
Constitution of the United States shall work a proportional loss in the
basis of representation in Congress from that State. No State shall
assume or pay any debt or obligation incurred in aid of insurrection
or rebellion against the United States, or any claim for the loss or
emancipation of any slave.[393] A little reflection will lead one to
the conclusion that these limitations on the States, provided in the
Constitution of the United States, are essential to the existence of
the Union.

144. On the other hand, the States are recognized as checks and
balances, as limitations on the United States, by the Constitution:

(1) Representatives are apportioned among the several States, but
each State shall have at least one Representative,[394] and no State
can be deprived of its equal suffrage in the Senate without its own
consent.[395]

(2) The State executive alone has authority to issue writs of election
to fill vacancies in the representation of a State.[396]

(3) Each State appoints presidential electors equal to the whole
number of Senators and Representatives to which it is entitled in
Congress.[397]

(4) In case of a disputed election of President or Vice-President, the
Vice-President is chosen by the Senate,—the President, by the House
of Representatives, the vote in the House being by States, each State
having one vote, a quorum for this purpose consisting of a member or
members, from two thirds of the States, and a majority of all the
States being necessary to a choice.[398]

(5) The States, as represented in the Senate, have power to confirm or
to reject (two thirds of the senators present concurring) treaties and
nominations to office submitted to it by the President.[399]

(6) No State can be divided, nor can a new State be erected within a
State without its own consent.[400]

(7) Each State is guaranteed a republican form of government by the
United States, and protection against invasion, and (on application of
its Legislature, or of its Executive) against domestic violence.[401]

(8) The Legislatures of two thirds of the States may call a convention
for amending the Constitution; but no amendment becomes part of the
Constitution until ratified by the Legislatures of three fourths of
the States, or by Conventions in three fourths of them, as the one or
the other mode may be proposed by Congress.[402] In this procedure of
amending the Constitution, the several States are equal. A proposed
amendment may be ratified and become part of the Constitution by
the approval of three fourths of the States irrespective of their
respective area, population, wealth, or any other mark or quality.[403]
Finally, both as conferring benefits, and as prescribing the
fundamental limitations on the States and on the United States, the
Constitution and the laws and treaties made in pursuance thereof
comprise “the supreme law of the land,” and all officials “both of
the United States and of the several States shall be bound by oath or
affirmation to support it, anything in the constitution or laws of any
State to the contrary notwithstanding.”[404]

The character of this supremacy of the “law of the land” is indicated
in the Constitution itself: “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.”[405]
The fundamental character of the limitations which this provision
establishes is seen as it affects the common interests of life. These
interests include domestic relations, ordinary business transactions,
recognized by common law; the ownership, acquisition, administration,
and distribution of estates; peace and good order within the State;
schools and education; the erection and care of public highways;
personal liberty, freedom of worship, freedom of speech and of the
press. These and cognate interests are within the scope and power of
the State, and not, unless control over them is specially delegated,
within the scope and power of the United States.

In truth, excepting in the election of United States Senators, members
of the House of Representatives, and Presidential Electors, the citizen
does not participate in federal government; and save through the post
office, the customs, the income tax (which directly affects fewer than
half a million persons in the United States), and in banking (including
the use of the money of the country) the citizen rarely has anything to
do with the United States. On the other hand, in the protection of his
property, the education of his family, the right of use of highways,
the validation of contracts, the rights, privileges and use of
multitudinous relations safeguarded by the common law and the statute,
it is the State, not the United States, which has first place, and,
consequently, constitutional priority.

The exact line of division between State and federal powers is not
known. The principle which rules in every attempt to fix this line is
that the enumeration of rights and powers in a constitution,—State or
federal,—“shall not be construed to deny or disparage others retained
by the people”[406] of the State or of the United States.

145. The essential doctrine, here, is set forth by the Supreme Court in
a decision which gives almost unlimited power to Congress in certain
cases (its power over a Territory, or possession of the United States):

  There are certain principles of natural justice inherent in the
  Anglo-Saxon character which need no expression in constitutions or
  statutes to give them effect, or to secure dependencies against
  legislation manifestly hostile to their real interests.... The
  wisdom and discretion of Congress, their identity with the people,
  and the influence which their constituents possess at elections,
  are in this, as in many other instances,—as that for example,
  of declaring war,—the sole restraints on which they have relied
  to secure them from its abuse. They are the _restraints on
  which the people must often solely rely in all representative
  government_.[407]

The limitation of powers delegated by the people of the United States,
in the federal Constitution, or of a State, in its constitution,
implies a delegation of powers adequate to performance of legitimate
civil functions. The large question involved in every case of a
constitutional nature, or constitutional construction, is whether in
the discharge of a function, or an office, the government, or any
department of it is transcending its delegated powers. This question is
of the essence of constitutional law and judicial interpretation.

146. The people interpret their will in their election of executive,
legislative, or judiciary, and the elective system prevails for
all three in most of the States.[408] The courts interpret the
laws in course of performance of their judicial duties, and their
interpretation conforms to principles of justice. Thus in addition to
the popular restraint, through frequent elections,—there is judicial
restraint, or limitation of legislative and executive (but strictly
ministerial) powers.[409] The entire case, as to the relation of the
judiciary to the legislative, is covered by the rule laid down by
the Supreme Court: “It is emphatically the province and duty of the
judicial department to say what the law is.”[410] This duty is of
State judges as well as federal, for all American judges are alike
bound by oath to support the Constitution.[411] Any American judge has
jurisdiction to pronounce as to the constitutionality of an act of
Congress or of a State legislature. The essential fact necessary in
such pronouncement is that the validity of the law is vital to the real
interests of a party to the case or controversy before the court. The
decision of the court is not an _obiter dictum_, a mere philosophical
opinion, so-called, of the judges, individually, or collectively, based
on an interpretation of justice. The constitutionality of the law in
question must be an essential part of the issue before the court.

  Whenever, in pursuance of an honest and actual antagonistic
  assertion of rights by one individual against another there is
  presented a question involving the validity of any act of any
  Legislature, State or federal, and the decision necessarily rests
  on the competency of the Legislature to so enact, the court must,
  in the exercise of its solemn duties, determine whether the act
  is constitutional or not; but such an exercise of power is the
  ultimate and supreme function of courts. It is legitimate only in
  the last resort, and as a necessity in the determination of real,
  earnest, and vital controversy between individuals. It never was
  the thought that by means of a friendly suit, a party beaten in
  the Legislature could transfer to the courts an inquiry as to the
  constitutionality of the legislative act.[412]

The principle of constitutional interpretation is given by Chief
Justice Marshall:

  Let the end be legitimate, let it be within the scope of the
  Constitution, and all means which are appropriate, which are
  plainly adapted to that end, which are not prohibited, but
  consist with the letter and spirit of the Constitution, are
  constitutional.[413]

And he develops the principle further:

  But where the law is not prohibited, and is really calculated to
  effect any of the objects entrusted to the government, to undertake
  (in courts of law) to inquire into the degree of its necessity
  would be to pass the line which circumscribes the judicial
  department, and to tread on legislative ground.[414]

147. The American constitutions are expressed and implied, limitations
of governmental powers, though popularly considered as grants of such
powers. “The truth is,” wrote Hamilton in _The Federalist_, “the
Constitution is itself, in every rational sense, and to every useful
purpose, a Bill of Rights.” It is “the Bill of Rights of the Union.”
It declares and specifies “the political privileges of the citizens
in the structure and administration of the government.” It “defines
certain immunities and modes of proceeding which are relative to
personal and private concerns.” It comprehends “various precautions
for the public security which are not to be found in any of the State
constitutions.”[415] James Wilson agreed with Hamilton that the
Constitution is itself a Bill of Rights, remarking, in reply to the
objection that the Constitution as it left the hands of its framers
and went to the country had no Bill of Rights:

  A Bill of Rights would have been improperly annexed to the federal
  plan (_i. e._, the Constitution, 1787), and for this plain reason
  that it would imply that whatever is not expressed was given, which
  is not the principle of the proposed Constitution.[416]

As constitutions are the most solemn form of limitations of
governmental powers, their interpretation determines the whole
character of the government. The principle of constitutional
interpretation is that

  words are to be understood in that sense in which they are
  generally used by those for whom the instrument was intended; its
  provisions are neither to be restricted into insignificance, nor
  extended to objects not comprehended in them, nor contemplated by
  its founders.[417]

The effect of the judicial pronouncement of the unconstitutionality of
a law is to make it “in legal contemplation, as inoperative as if it
had never been passed.”[418]

148. To whatsoever extent State or federal officials perform
ministerial functions they are answerable to the judiciary for their
acts. Ministerial officers comprise the vast body of appointees in the
States and in the United States. They are not executive officers, for
such perform functions distinctively outside judicial investigation,
but as distinctively within the political powers of the legislature.
The judiciary is a powerful limitation of ministerial powers, in the
sense that the performance of those powers is examinable in courts of
law.[419]

In the popular mind the veto power may seem to be the principal
executive check on legislation. This conviction takes form in State
constitutions[420] which authorize the Governor to veto any item in an
appropriation bill, or to cut the item down.

One result of this popular conviction is acquiescence in exercise of
executive power which, in former times would have been interpreted
by the people as “executive usurpation.” At present the people rely
upon their executives,—Governors, Presidents,—to act as a check,—a
limitation,—on unwise legislation. This reliance, or expectation,
is a powerful element in practical politics. Thus the limitations
of government in America are threefold: first, the American
constitutions themselves; secondly, frequent popular elections, and
thirdly, the judiciary in its interpretation of constitutions and
laws. These limitations are constitutional limitations. There is a
fourth limitation but it belongs to another sphere,—the sphere of
politics.[421]




CHAPTER XI

THE LAW OF FUNDAMENTAL RIGHTS


149. The people of the several States, and the people of the United
States, have delegated powers to the governments which they have
respectively created. The powers thus delegated are general, or
special. Doubtless the special are implied in the general, but in
order to secure precision, and thus to mark off, in practical fashion,
the boundaries of the grants, the delegation of a power, or the
reservation of a power is declared as clearly as possible in language
of adjudicated meaning, or capable of interpretation according to such
meaning.

In the American constitutions, both federal and State, many provisions
are administrative, that is, prescriptive of method, or procedure, as
the strictly parliamentary provisions on the legislative respecting
sessions, the journal, the quorum, adjournments, the method of passing
bills, and the like. In the article on the judiciary, in State
constitutions, provisions are found concerning appeals, writs, minor
court officials, sessions of courts, records, decisions, and the like,
all of which are of secondary importance as compared with the general
grant of judicial power.

In the executive article,—and notably in State constitutions, all
that does not strictly belong to the executive office,—that is,
to the distinctive functions of the Governor, is administrative.
In the Constitution of the United States there is little of this
administrative matter formally expressed, but much by implication,—for
the appointees of the President (excepting the federal judges) are
administrative officers, and the appointees of the President, of the
heads of departments, or of the courts of law,—constituting what is
known in law as “inferior officers”[422] comprehends quite all persons
in the employ of the federal government.

In the State constitutions the important administrative offices are
usually named, as of treasurer, auditor general, secretary of state,
superintendent of education, commissioner of labor, of insurance,
of agriculture, of railways, and the like. The duties of persons
elected to these offices are usually prescribed in general terms.
Their delegated powers are ascertainable by judicial procedure. A
little reflection will make clear that most of the mere business
of government, State or federal, is carried on by administrative
officials who number, in the aggregate, in the United States quite a
million. These persons possess slight, if any discretionary authority;
they are ministerial public servants, and in the exercise of authority
vested in them they are all amenable to judicial process.

150. That Congress, with delegated powers of legislation, and
exercising them as the representative and agent of the sovereign people
of the United States, has power to lay and collect taxes, to coin
money, to declare war, to regulate commerce, and to do other acts,
whether or not these powers were specifically conferred, can hardly
be denied. The exercise of such powers goes with the very existence
of government. An example is afforded by the decision of the Supreme
Court that the power of the United States to acquire territory and to
govern it is an exercise of the war power.[423] The Court here reasons
from the general to the particular: from the general grant of power to
declare war to the particular use of the power in governing an area of
territory acquired.

It might seem, then, that as the whole always includes the part, and
the general the particular,—the necessary and essential thing to do
in creating government is merely to create it; for example, that the
people of the United States should ordain and establish a Constitution
consisting of the Preamble, which states the purpose and authority of
the Constitution, and three general articles:

Article I. The legislative power is vested in Congress.

Article II. The executive power is vested in the President.

Article III. The judicial power is vested in a Court.

151. The Preamble and these three delegations of power comprise the
essentials of the Constitution, lacking one other:

Article IV. The powers not delegated are reserved to the States or to
the people, and the enumeration of certain rights in the Constitution
shall not be construed to deny or disparage others retained by the
people.[424]

The rights thus retained, that is, _not delegated_, are _fundamental
rights_, are inviolate, and to guard against transgressions of the high
powers delegated to government by the people are excepted out of the
general powers of government; and being excepted out of the general
powers, they are logically excepted out of the particular.

Thus, in final analysis, constitutional law in America is shaped and
determined by interpretation of these fundamental rights. The supreme
law cannot violate them. They comprise the Bills of Rights, or
Declarations of Rights of the State constitutions and the first ten
amendments of the federal Constitution.

152. There is no fixed order of these rights or priority among them.
The Constitution, as framed originally, forbade any religious test for
any federal office or trust.[425] The First Amendment forbids Congress
to make any law respecting an establishment of religion, or prohibiting
the free exercise thereof. The limitation is wholly on Congress. If any
such exists for a State it is found in the constitution of that State.
Crime cannot be protected under the claim or guise of being religion.
Thus polygamy, bigamy, or conduct, ceremonies or observance criminal
and offensive to the commonsense of mankind cannot be tolerated.[426]
Freedom of religion cannot be made a cloak for immorality or
crime.[427] The preservation of religious liberty is largely a
function of the States. The essentials here are: the equality of
religious establishments before the law; “exemption of all persons from
compulsory support of religious worship and from compulsory attendance
upon the same”[428]; freedom of conscience and speech in religious
matters, and entire exemption of the person from discrimination,
domination, censorship, or interference in matters of religion by the
State.

But this fundamental right does not free the person from responsibility
to the State for the results of his belief or conduct, in so far as
either imperils the State. Thus, so-called “religious belief” or
conduct which destroys or endangers peace and good order, or the
life, or lives, or reputation of a person or a community cannot work
exemption under the claim of religious liberty.[429]

Freedom of speech, of the press, and of assembling are ancient rights,
each won after long struggle against absolutism.[430] These rights are
inviolable, but the same principle applies to them as to religious
freedom: he who exercises them is responsible for the abuse of the
right.[431]

153. Every citizen is subject to the legislative power of the State,
and abuse of a fundamental right,—as of freedom of speech or of the
press in uttering a libel,—cannot exempt the party from prosecution. No
man can make plea of a fundamental right as making him “above the law.”
The law accords with the fundamental right.

The right to petition government for redress of grievances[432]
is essentially the right of freedom of speech in a particular
way. The right to keep and bear arms is essentially the right to
self-protection, but this right may not be abused with impunity; it
does not empower any person to take the law into his own hands, or
to carry weapons.[433] Carrying concealed weapons is not an exercise
of the right to bear arms, unless in the performance of a function,
the execution of an office, in which case such carrying is permitted
(licensed) by the State. Essentially the right to bear arms is akin to
the right to revolution as set forth in the Declaration of Independence.

The person, his or her papers and dwelling are exempt from
unwarrantable searches, seizure, or invasion. The exemption here goes
to the fundamental supremacy of the civil over the military authority.
A warrantable search is lawful because the sovereign—the State or the
United States—has the primary right of self-protection, safety, peace,
good order,—indeed, the right to realize the essential purposes and
ends of sovereignty. But the boundary between private right and public
necessity (another expression for sovereignty) must be drawn with
precision. The language of the Fourth Amendment is explicit.[434]

154. The first ten amendments prohibit the United States from violating
the fundamental rights of persons; they are a protection against
federal tyranny. The Thirteenth and Fourteenth Amendments prohibit the
States from violating certain fundamental rights of persons. Any one
comparing the Fifth and the Fourteenth Amendments discovers the same
language as to “due process of law” and “life, liberty, and property.”
The State constitutions protect persons in like manner. Thus the
fundamental right prevails in both jurisdictions,—that of the State and
that of the United States.

The Fifth Amendment does not exempt a person from presentment or
indictment, or trial, but recognizes his fundamental right to
protection by due process of law.[435]

The protection of the person is of his life, liberty, and property—his
rights to either of which are fundamental. Yet his life may be taken in
defense of the State, or of the United States; he may be deprived of
his liberty,—civil, political, or natural,—for cause, and his property
may be confiscated to the State, or to the United States, for like
reason. This apparent conflict between theory and fact is in no sense a
violation of the fundamental right of the person thus affected. He is
entitled to his fundamental rights; so are the several States and the
United States entitled to their respective fundamental rights: but they
are sovereignties; the person is not, and his fundamental rights to
life, liberty, and property give place to the rights of the sovereign.

155. Neither the State government nor the federal government is that
sovereign, but each is an agent of a sovereign. The sovereign can
do no wrong. To the extent that the individual person is identified
with sovereignty, he or she can do no wrong, and his or her rights
are primary as well as fundamental. For this reason the first ten
amendments specify the protection and the guarantees which apply to
the person as against the powers of the Government of the United
States.[436]

The test whether or not there is invasion of the fundamental rights
which are excepted out of the powers of government is the issue, “Is
sovereignty imperiled?” As against sovereignty, the person has in the
final test no rights whatever: that is no rights that are recognized
and protected by constitutional law. The supreme test is, however,
rarely made.

156. The fundamental rights outlined in the first ten, and in
the Thirteenth and Fourteenth Amendments to the Constitution are
essentially the right of the person to the protection of sovereignty
against acts of the government. The nature of this protection is
expressed in the Ninth and Tenth Amendments. Sovereignty does not
define its rights; it defines or enumerates powers which it delegates
to government. Were sovereignty to define (if it were possible to
define) its rights, it would limit itself, and to that extent cease
being sovereign. The fundamental rights[437] thus reserved (in addition
to those already mentioned but not in any sense exhaustive) are, the
right of equality before the law; of consequent equal protection of the
laws; of the exercise of the police power; of education; of employment;
of making contracts; of trial by jury; of being a person (not a thing)
and to realize and possess the privileges and immunities thereunto
pertaining.

157. Practically, these fundamental rights are realized through the
judiciary when the issue and test of their existence arise. Thus we
turn to judicial decisions for the interpretation of these rights,
or for declaration, in official form, of their primary rank as
“reserved to the people or to the States.” All legislation, State or
federal, must conform to them. Whether it actually does so conform
is determinable in and by courts of law, on the principle, declared
by Chief Justice Marshall, that “it is emphatically the province
and duty of the judicial department to say what the law is.” Thus
for the protection of these fundamental rights the judiciary, by
every principle of American constitutional law, is final, unless the
sovereign arouses himself and changes the function, or office of the
judiciary itself.[438] The sovereign may thus act, as the people of
a State, or of the United States.[439] The now familiar decision of
the Supreme Court as to the power of Congress over American territory
(as differing from a State in the Union)[440] recognizes and declares
that there are certain principles of natural justice which secure
dependencies against legislation manifestly hostile to their real
interests. These “principles of natural justice” as applied to
constitutional government and law undoubtedly mean fundamental rights
which secure persons, anywhere under American jurisdiction, “against
legislation manifestly hostile to their real interests”; for the
essential interest of the person,—that is, the “citizen” as defined in
the Constitution,—is the interest of the sovereign,—the people of the
United States, or of a State.

158. It is evident that there is a close relation between the law
of constitutional limitations and the law of fundamental rights in
America. A limitation is not always a right, in law; a right is not
always a limitation; but the law of constitutional government in
America—and this means the constitutional law of America—is worked out
by judicial interpretation of these limitations and these rights.

The right of freedom of worship and of exemption from compulsion
to attend any place of worship is not violated by reading from the
Bible in the public schools, or reading selections from the Bible.
Such a reading does not convert the public school into a religious or
theological seminary, nor is the reading a conversion of the public
money to the use of a religious sect. “I am not able to see,” observed
the court, “why extracts from the Bible should be proscribed, when
the youth are taught no better authenticated truths from profane
history.”[441] If under the influence of a religious belief (polygamy)
that it was right, a man deliberately married a second time having a
first wife living, the want of consciousness of evil intent did not
excuse him, but criminal intent would be implied.[442]

The compulsory production of a man’s private papers to establish a
criminal charge against him is within the scope of the Fourth Amendment
to the Constitution, in all cases in which a search or seizure
would be; because it is a material ingredient, and effects the sole
object of the search and seizure. Compulsory production of papers is
unwarrantable search and seizure. Such unwarrantable seizure of books
and papers is compelling a person to be a witness against himself.
The offense consists in the “invasion of the indefeasible right of
personal security.” The manner of the invasion whether by force or by
quiet entrance is not the violation; the violation of the right is the
invasion of it, in whatever manner.[443]

  The law is perfectly well settled that the first ten amendments to
  the Constitution, commonly known as the Bill of Rights, were not
  intended to lay down any novel principles of government, but simply
  to embody certain guaranties and immunities which we had inherited
  from our English ancestors, and which had, from time immemorial,
  been subject to certain well-recognized exceptions arising from
  the necessities of the case. In incorporating these principles
  into the fundamental law there was no intention of disregarding
  the exceptions, which continued to be recognized as they had been
  formally expressed. Thus the freedom of speech and of the press
  (Art. i.) does not permit the publication of libels, blasphemous,
  or indecent articles, or other publications injurious to public
  morals or private reputation; the right of the people to keep and
  bear arms (Art. x., 11) is not infringed by laws prohibiting the
  carrying of concealed weapons; the provision that no person shall
  be twice put in jeopardy, (Art. v.) does not prevent a second
  trial, if upon the first trial the jury failed to agree, or if the
  verdict was set aside upon the defendant’s motion (United States
  _v._ Ball, 163 U. S., 662, 672); nor does the provision of the same
  article that no one shall be a witness against himself impair his
  obligation to testify, if a prosecution against him be barred by
  the lapse of time, or by statutory enactment (Brown _v._ Walker,
  161 U. S., 591 and cases cited); nor does the provision that an
  accused person shall be confronted with the witnesses against him
  prevent the admission of dying declarations, or the depositions of
  witnesses who have died since the former trial.[444]

159. “The words ‘due process of law’ were undoubtedly intended to
convey the same meaning as the words, ‘by the law of the land’ in
Magna Charta.” This means, in American constitutional law, to use
Webster’s words in the Dartmouth College case,—“the general law—a
law which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial.” Cooley states it as meaning “that
every citizen shall hold his life, liberty, property, and immunities,
under the protection of the general rules which govern society.”[445]

This means that whatever is the actual law of the land, the regular
and established practice of courts and the legal landmarks of society
defines the meaning of the phrase “due process of law.” A man who by
the laws of his State has had a fair trial in a court of justice,
according to the modes of proceeding applicable to such a case has been
tried by due process of law.[446]

It is within the police power of a State to regulate the hours during
which a business, say washing and ironing, may be carried on, and the
kind of building, whether or not fireproof, which may be used for such
business, but discrimination against citizens or aliens effecting
the elimination of certain citizens or aliens from carrying on the
business, while others are permitted to carry it on under similar
conditions is a violation of the Fourteenth Amendment which secures
to every person the equal protection of the laws. The discrimination
is none the less unconstitutional because the person discriminated
against is an alien, when the treaty between the United States and
the sovereignty to which the alien owes allegiance secures to the
alien in the United States “the same rights, privileges, immunities,
and exemptions as may be enjoyed by the citizens or subjects of the
most favored nation.” For a treaty is part of the supreme law of the
land.[447]

The principle here also includes another well-settled rule of American
constitutional law, that while a State may exercise its police
power within its own jurisdiction, imposing restrictions on foreign
corporations doing business within its territory, it cannot so exercise
its police power as to infringe upon interstate or foreign commerce.
Thus a police regulation of a State which prevents or obstructs,
directly or indirectly, a corporation within its territory, as a
party that is engaged or would be engaged in commerce, conflicts
with the power of Congress to regulate commerce and therefore is
unconstitutional. But police regulation of the corporation as to
other matters is not a violation of the Fourteenth Amendment.[448]
The principle here is “to exclude everything that is arbitrary and
capricious in legislation affecting the rights of the citizen.”[449]

160. The Fourteenth Amendment takes no police powers from the States
that were reserved to them when the Constitution was adopted. The
States may still do lawfully as they will with their own, and this
means that they will exercise authority over their own jurisdiction.
That Amendment “in declaring that no State” shall deprive any person
of life, liberty, or property without due process of law, nor deny
to any person within its jurisdiction the equal protection of the
laws, undoubtedly intended not only that there should be no arbitrary
deprivation of life or liberty, or arbitrary spoliation of property,
but that equal protection and security should be given to all under
like circumstances in the enjoyment of their personal and civil rights;
that all persons should be equally entitled to pursue their happiness
and acquire and enjoy property; that they should have like access to
the courts of the country for the protection of their persons and
property, the prevention and redress of wrongs, and the enforcement of
contracts; that no impediment should be interposed to the pursuits of
any one except as applied to the same pursuits by others under like
circumstances; that no greater burdens should be laid upon one than are
laid upon others in the same calling and condition, and that in the
administration of criminal justice no different or higher punishment
should be imposed upon one than such as is prescribed to all for like
offenses. But neither the Amendment, broad and comprehensive as it is,
nor any other Amendment was designed to interfere with the power of
the State, sometimes termed its police power, to prescribe regulations
to promote the health, peace, morals, education, and good order of the
people, and to legislate so as to increase the industries of the State,
develop its resources, and add to its wealth and prosperity. From the
very necessities of society, legislation of a special character, having
these objects in view, must often be had in certain districts, such as
for draining marshes and irrigating arid plains. Special burdens are
often necessary for general benefits,—for supplying water, preventing
fires, lighting districts, cleaning streets, opening parks, and many
other objects. Regulations for these purposes may press with more or
less weight upon one than upon another, but they are designed, not
to impose unequal or unnecessary restrictions upon any one, but to
promote, with as little individual inconvenience as possible, the
general good. Though, in many respects, necessarily special in their
character, they do not furnish just ground of complaint if they operate
alike upon all persons and property under the same circumstances and
conditions. Class legislation, discriminating against some and favoring
others, is prohibited; but legislation which, in carrying out a public
purpose, is limited in its application, if within the sphere of its
operation it affects alike all persons similarly situated is not within
the Amendment.[450]

161. The right of trial by jury, reserved as a fundamental right, is a
common law right of great antiquity. As the word “jury” is used in the
Constitution, and as jury trial is secured by the Seventh Amendment,
its meaning must be discovered from English history and common-law
practice. That history and that practice alike prove that only a court
of law can have a jury, and that a body of men free from judicial
control is not and never was a common-law jury; that is, according to
the Seventh Amendment, a constitutional jury is a jury in a court of
record, and a number of men, a so-called jury in a court of a justice
of the peace, is not a jury in the sense in which that word is used in
the Constitution. A court, when we consider its derivation and history,
comprises the judge assisting the jury and the jury assisting the
judge. The right of trial by jury means for many purposes the same as
the right to due process of law.[451]

162. The fundamentals of government are a unit, like government itself,
and he who rests his case on one fundamental right really rests his
case on all. The principle which permeates and includes all these
fundamentals—usually set forth in Bills of Rights—is thus expressed by
the Supreme Court:

  When we consider the nature and the theory of our institutions of
  government, the principles upon which they are supposed to rest,
  and review the history of their development, we are constrained
  to conclude that they do not mean to leave room for the play and
  action of purely personal and arbitrary power. Sovereignty itself
  is, of course, not subject to law, for it is the author and source
  of law; but in our system, while sovereign powers are delegated to
  the agencies of government, sovereignty itself remains with the
  people, by whom and for whom all government exists and acts. And
  the law is the definition and limitation of power. It is, indeed,
  quite true, that there must always be lodged somewhere, and in some
  person or body, the authority of final decision; and in many cases
  of mere administration the responsibility is purely political,
  no appeal lying except to the ultimate tribunal of the public
  judgment, exercised either in the pressure of opinion or by means
  of the suffrage. But the fundamental rights to life, liberty, and
  the pursuit of happiness, considered as individual possessions,
  are secured by those maxims of constitutional law which are the
  monuments showing the victorious progress of the race in securing
  to men the blessings of civilization under the reign of just and
  equal laws, so that, in the famous language of the Massachusetts
  Bill of Rights, the government of the Commonwealth “may be a
  government of laws and not of men.” For the very idea that one man
  may be compelled to hold his life, or the means of living, or any
  material right essential to the enjoyment of life, at the mere will
  of another, seems to be intolerable in any country where freedom
  prevails, as being the essence of slavery itself.[452]




CHAPTER XII

THE LAW OF CITIZENSHIP


163. “All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States, and
of the State wherein they reside.”[453] The phrase “subject to the
jurisdiction thereof” excludes “children of ministers, consuls,
and citizens or subjects of foreign states born within the United
States.”[454] The supreme law clearly recognizes and establishes a
distinction between United States citizenship and State citizenship.
To be a citizen of a State, a person must reside within that State,
but to be a citizen of the United States, it is necessary only that he
or she be born or naturalized within the jurisdiction of the United
States. Thus American citizenship, like the operation of American
constitutional law in all its aspects, is a matter of jurisdiction, or
sovereignty.

In America there are two citizenships, distinct from each other,
and depending upon different characteristics and circumstances, and
the essential difference is caused by a difference of jurisdiction.
In strict conformity to this distinction, the Constitution prohibits
a State from making or enforcing “any law which shall abridge the
privileges or immunities of citizens of the United States.”[455] The
limitation is not as to laws affecting the privileges and immunities
of citizens of the several States; equality of citizens of States is
secured by another provision.[456]

The privileges and immunities of the citizen of one State removing
to another State are the same, no more, no less, than the privileges
and immunities of the citizens of the State into which he or she
removed.[457] The privileges and immunities of citizens of the
several States rest for security and protection with the States
themselves,—where they rested before the Constitution was made. These
privileges and immunities are not placed under the care of the United
States except so far as the Constitution declares that, “The citizens
of each State shall be entitled to all privileges and immunities of
citizens in the several States.” These privileges and immunities of
citizens of the several States are _fundamental_,[458] and are commonly
set forth in Bills of Rights found in the State constitutions. The
sole purpose of the Fourteenth Amendment is to declare to the several
States that

  whatever those rights,—as you grant or establish them to your own
  citizens, or as you limit, or qualify, or impose restrictions on
  their exercise, the same, neither more nor less, shall be the
  measure of the rights of citizens of other States within your
  jurisdiction.[459]

164. What then are the privileges and immunities of citizens of the
United States? They are the privileges and immunities secured to them
by the Constitution. Among them are

  to come to the seat of government to assert any claim he may have
  upon that government; to transact any business he may have with it;
  to share its offices; to engage in administering its functions; the
  right of free access to its seaports, through which all operations
  of foreign commerce are conducted; to the subtreasuries, land
  offices, and courts of justice in the several States[460]; “to
  demand the care and protection of the federal government over
  his life, liberty, and property when on the high seas, or within
  the jurisdiction of a foreign government; to peaceably assemble
  and petition for redress of grievances; the privilege of _habeas
  corpus_; to use the navigable waters of the United States however
  they may penetrate the territory of the several States; all rights
  secured to (American) citizens by treaties with foreign nations”;
  the right, on his own volition to become a citizen of any State of
  the United States by a _bona fide_ residence therein, with the same
  rights as other citizens of that State.[461]

Thus it appears that the rights of a citizen—his “privileges and
immunities”—are measurable by the jurisdiction of the sovereignty to
which he owes allegiance. Between allegiance and protection as between
citizenship and sovereignty there is a reciprocal relation.

165. The Fourteenth Amendment did not add to the privileges and
immunities of a citizen.[462] It simply furnished an additional
guaranty to the protection of such as he already had. It did not add
the right of suffrage to these privileges and immunities as they
existed at the time of the adoption of the Constitution. The United
States guarantees to every State in the Union a republican form of
government,[463] but this is not a guarantee to any citizen of the
right to vote, nor does the Constitution confer that right on any
person.[464] That right (or privilege, as it is in strict contemplation
of law) was not the same among the original States, the qualifications
for voting differing widely among them, and also in the same State at
different times.[465] When the Constitution confers citizenship it does
not confer the right to vote.

There is, however, a right to vote possessed by certain citizens
of the United States, namely they who vote for members of Congress
and Senators of the United States, and (by implication) electors of
President and Vice-President. The Constitution defines electors of
Congressmen and Senators as the same persons who are entitled in the
several States to vote for the most numerous branch of the State
Legislature.[466] The United States thus

  adopts the qualification thus furnished as the qualification of its
  own electors of Congress. It is not true, therefore, that electors
  for members of Congress owe their right to vote to the State law in
  any sense which makes the exercise of the right depend exclusively
  on the law of the State.[467]

The United States has sovereign power to prescribe electoral
qualifications for its own citizens; it has chosen to adopt State
qualifications. The non-exercise of the power does not work denial
of its existence. The principle involved is one of sovereignty, that
non-user of a sovereign right cannot invalidate the right.

166. While the Fourteenth Amendment added nothing to the rights and
privileges of citizens, for “the equality of the rights of citizens is
a principle of republicanism,”[468] it guaranteed those rights; but
“the power of the national government is limited to the enforcement
of the guaranty.”[469] The Amendment does not invest Congress with
power to legislate upon subjects which are within the domain of State
legislation; but to provide modes of relief against State legislation,
or State action “which impairs the privileges and immunities of
citizens of the United States, or which injures them in life, liberty,
or property without due process of law, or which denies to them the
equal protection of the laws.”[470] Congress is empowered by the
Amendment “to adopt appropriate legislation for correcting the effects
of such prohibited State laws and State acts, and thus to render them
effectually null, void, and innocuous.”[471]

The essential matter here involved is sovereignty.

  The true doctrine is, that whilst the States are really
  sovereign as to all matters which have not been granted to the
  jurisdiction and control of the United States, the Constitution
  and constitutional laws of the latter are the supreme law of the
  land; and when they conflict with the laws of the States, they are
  of paramount authority and obligation. This is the fundamental
  principle on which the authority of the Constitution is based; and
  unless it be conceded in practice, as well as theory, the fabric of
  our institutions, as it was contemplated by its founders, cannot
  stand. The questions involved have respect not more to the autonomy
  and existence of the States, than to the continued existence of the
  United States as a government to which every American citizen may
  look for security and protection in every part of the land.[472]

Thus, in application of this principle, the law of a State
discriminating against persons of color by eliminating them to serve
as jurors is unconstitutional.[473] So too is an act of Congress
unconstitutional, that operates as, or creates, a municipal law for the
regulation of private rights, and that places Congress in the stead,
or office of the State legislatures, so that the federal Legislature,
instead of enacting laws corrective of prohibited State laws, or
counteracting such laws, assumes the office of the State legislatures
in their general legislation. Such Congressional legislation “steps
into the domain of local jurisprudence.”[474]

167. Such unconstitutional legislation by Congress was the Civil Rights
Bill of 1866, which declared that all persons within the jurisdiction
of the United States should be entitled

  to the full and equal enjoyment of the accommodations, advantages,
  facilities, and privileges of inns, public conveyances on land or
  water, theaters, and other places of public amusement; subject
  only to the conditions and limitations established by law, and
  applicable to citizens of every race and color, regardless of any
  previous condition of servitude.[475]

Here again the essential matter is one of jurisdiction, or sovereignty.
The several States have jurisdiction over the matters comprised
within the so-called Civil Rights Bill. Inn-keepers, public carriers,
owners or managers of theaters and public halls are bound, to the
extent of their facilities, to furnish proper accommodations to all
unobjectionable persons who in good faith apply for them. No race
or class is a special favorite of the laws, and the enjoyment of
accommodations in inns, public conveyances, and places of amusement,
is not a “privilege or immunity” of a citizen, in the sense that he or
she possesses a civil or legal right to such enjoyment. The act, or
decision, of a mere individual,—the owner of an inn, or of a public
conveyance, or place of amusement, refusing such accommodation, is not
the imposition of a badge of slavery or involuntary servitude upon the
applicant; neither does such act or decision inflict a civil injury,
unless the law of the State makes such act or decision an injury.[476]

The principle here involved is illustrated by a law of California, held
to be constitutional by the Supreme Court of the United States, that
“due process of law” is not denied to a person who, in that State, by
its law, was “prosecuted by information,” and (as was claimed) was
“tried and illegally found guilty of (murder) without any presentment
or indictment of any grand or other jury.”[477]

The Court sustained the State law as securing due process of law in
principle,—that “prosecution by information” instead of “indictment of
a jury” is not a violation of the principle but merely a variation of
the form of due process of law.[478] In other words, the California law
in no way disparaged or abridged the privileges or immunities of the
citizen.[479]

168. The principle regulating the definition of United States
citizenship is that principle of the common law which recognizes “the
ancient rule of citizenship by birth within the dominion.”[480]

Naturalization is an artificial birth made possible by the will of
sovereignty. It is effected by the operation of law,—and in America,
by operation of statutory law only. Congress has not the exclusive
power to pass naturalization laws, but it has the exclusive power “to
establish a _uniform_ rule of naturalization.”[481] The power exercised
here is suggested in the word “uniform.”[482] Congress has seen fit
to vest the exercise of this power in certain courts of law. Strictly
speaking, the exercise of the function, in any of its aspects, is not
essentially judicial. Courts of law have no functions, can exercise
no functions, and no functions can be imposed upon them except those
of a judicial nature.[483] If the courts are willing to exercise a
ministerial function and are empowered to exercise it by Congress, as
in the naturalization of aliens, that exercise cannot be questioned as
being unconstitutional.

169. The test here is jurisdiction. A person may by voluntary
expatriation become allegiant to another jurisdiction or sovereignty,
but he cannot escape allegiance to some one jurisdiction. He must
be citizen or subject of a sovereignty. As all property capable of
ownership must have an owner, so must every person be citizen or
subject of some sovereignty. A vessel, wherever it may be, is part
of the territory of the country to which it belongs.[484] By parity
of reasoning a person is deemed allegiant to some jurisdiction or
sovereignty. A vessel owning no jurisdiction is a pirate.

170. The Fifteenth Amendment declares that the right of citizens of the
United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition
of servitude. This Amendment

  does not take away from the State governments in a general sense
  the power over suffrage which has belonged to those governments
  from the beginning, and without the provision of which power
  the whole fabric upon which the division of State and national
  authority under the Constitution and the organization of both
  governments rest would be without support and both the authority
  of the nation and of the State would fall to the ground. In fact,
  the very command of the Amendment recognizes the possession of the
  general power by the States since the Amendment seeks to regulate
  its exercise as to the particular subject with which it deals.[485]
  The Amendment does not change, modify, or deprive the States of
  their full power as to suffrage, except of course as to the subject
  with which the Amendment deals, and to the extent that obedience
  to its command is necessary. Thus the authority over the suffrage
  which the States possess, and the limitations which the Amendment
  imposes, are co-ordinate, and one may not destroy the other without
  bringing about the destruction of both.[486]

But while the Amendment “gives no right of suffrage”

  ... the result might arise that as a consequence of the striking
  down of a discriminating clause, a right of suffrage would be
  enjoyed by reason of the generic character of the provision which
  would remain after the discrimination was stricken out.[487]

171. Both the States and the United States are forbidden by the
Constitution to enact _ex post facto_ laws. The prohibition affects
every citizen as securing him from the peril of legislation of the
kind forbidden. It is a sweeping limitation of power for his or her
benefit, and operates for all citizens of whatever age, condition,
or circumstance. An _ex post facto_ law is one that makes an action
done before the passing of the law, and which was innocent when done,
criminal, and punishes that action; that aggravates a crime, or makes
it greater than it was when committed; that changes the punishment
and inflicts a greater punishment than the law annexed to the crime
when committed; that alters the legal rules of evidence, and receives
less or different testimony than the law required, at the time of
the commission of the offense, in order to convict the offender.
But no law is _ex post facto_ within the constitutional prohibition
that “mollifies the rigor of the criminal law.” Only those laws are
_ex post facto_ which “create, or aggravate the crime, or increase
the punishment, or change the rules of evidence, for the purpose of
conviction.”[488]

172. But he who, under State law, voluntarily waived his right of trial
by jury and elected to be tried by the court and by it was adjudged
guilty and was condemned to be hanged, was not deprived of any right,
privilege, or immunity for his protection by the Fourteenth Amendment,
but was tried and condemned in strict accordance with the forms
prescribed by the constitution and laws of the State, and with special
regard to the rights of accused persons under its jurisdiction.[489] A
person may waive a fundamental right[490] but neither the State nor the
United States can lawfully invade the indefeasible right of a person
to personal security[491]; such invasion constitutes an “unwarrantable
search and seizure.” The service of a lawful warrant operates
practically as a waiver of right by the person searched or seized; but
were a person to waive his right, say of trial by jury, such waiver
would not confer power on any court or jury to try him. “Consent can
never confer jurisdiction.”[492]

173. Am act of Congress that no person shall be excused from attending
and testifying, or from producing books, papers, tariffs, contracts,
agreements, and documents before the Interstate Commerce Commission,
or in obedience to its subpœna, on the ground that he might thus be
compelled to be a witness against himself and so become subject to
penalty is constitutional because its additional provision immuning
him from future prosecution by reason of his evidence thus given
sufficiently satisfies the constitutional guarantee of protection.[493]

So too the stenographic report of testimony given in court, supported
by the oath of the stenographer that it is a correct transcript of
his notes and of the testimony of a deceased witness is competent
evidence, is admissible, and does not conflict with the provision of
the Constitution that an accused person shall have the right “to be
confronted with the witnesses against him.”[494] The principle here is
essentially one of sovereignty,—the court declaring: “the rights of
the public shall not be wholly sacrificed in order that an incidental
benefit may be preserved to the accused.”[495] The sovereign right
of a State, or of the United States with respect to citizenship, is
sufficient, in either, to effect the purposes for which either exists;
but in the American dual system of government, citizenship has
fundamental rights, which are guaranteed, and political privileges,
which are conferred and protected.

174. Civil rights and their guarantees, both in the States and in
the United States, are formulated as limitations on government,—as
fundamentals reserved “and above any constitutional sanction.” These
rights include those of religious liberty, personal security, security
of dwellings, papers, and property, personal freedom, due process
of law, jury trial, and equal protection of the laws. The line of
demarcation between these fundamental rights is not easily drawn, nor
even drawn with precision. These rights, being fundamental rights,
exist independent of the government which the people of a State, or the
people of the United States ordain and establish. That sovereignty—the
people themselves—has power to alter, to modify, or even to destroy
these rights, or any of them, must be admitted, but that sovereignty
ever, under a republican form of government, will alter, modify, or
destroy these rights, may with equal assurance be denied.

175. The political privileges of citizenship rest on a different
conception of government. Political privileges—of which the most
important are the right to vote and the right to be voted for, and to
execute an office because of election to office—are not fundamental,
that is, they are not civil rights. The State, or the United
States, has the right to prescribe qualifications for an elector,
or for candidacy for any office. Usually these qualifications are
of age, residence, sex, and tax-paying,—the people of the United
States having also declared that the right of citizens of the United
States to vote shall not be denied or abridged by the United States,
or by any State, on account of race, color, or previous condition
of servitude. This inhibition does not make the fact of race, or
color, or previous condition of servitude a fundamental civil right
guaranteed by the United States under the Constitution. In no sense
does the Fourteenth Amendment confuse civil and political rights. No
person can vote unless he or she has complied with the requirements
(qualifications) for voting, prescribed by the State in which he or
she resides. No person acquires civil rights by a similar compliance.
By birth or naturalization (and naturalization is a sort of legal
birth by the will of the sovereign), a person possesses civil rights,
but no person possesses the privilege of voting either by birth or by
naturalization. The privilege of voting may be lost by removing from a
polling district; by neglect to register; by neglect to pay a tax,—in
brief, by failure to comply with any electoral law of the State; but
no person forfeits his or her civil rights by mere neglect. Infants,
minors, adults, men, women, and children possess equal civil rights.
Impairment, suspension, forfeiture of civil rights is effected only
by commission of crime, that is, by a voluntary act, inimical to
sovereignty itself. Such an act also cuts off the privilege of voting,
or of being voted for with effect of induction into office, because
the person who imperils sovereignty by commission of a crime would,
in all probability, imperil sovereignty by voting. The exercise of
the suffrage has long continued in America, and, both in laws and in
constitutions, is commonly referred to as a “right.” The tendency of
privileges is to become rights. In America, however, the republican
form of government exists both in the States and in the United States.
Practically, civil rights and political privileges are determined by
the will of the people.




Appendix

  THE
  CONSTITUTION
  OF THE
  UNITED STATES OF AMERICA

(COMPARED WITH THE ORIGINAL IN THE DEPARTMENT OF STATE)


WE THE PEOPLE[496] of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility, provide
for the common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this CONSTITUTION for the United States of America.


ARTICLE I.


SECTION 1.

1. All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and House of
Representatives.


SECTION 2.

1. The House of Representatives shall be composed of Members chosen
every second Year by the People of the several States, and the
Electors in each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature.

2. No Person shall be a Representative who shall not have attained to
the Age of twenty-five Years, and been seven Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of
that State in which he shall be chosen.

3.[497]Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, according
to their respective Numbers, which shall be determined by adding to
the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths of
all other Persons. The actual Enumeration shall be made within three
Years after the first Meeting of the Congress of the United States,
and within every subsequent Term of ten Years, in such Manner as they
shall by Law direct. The Number of Representatives shall not exceed
one for every thirty Thousand, but each State shall have at Least one
Representative; and until such enumeration shall be made, the State of
New Hampshire shall be entitled to chuse three, Massachusetts eight,
Rhode Island and Providence Plantations one, Connecticut five, New York
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia
three.

4. When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.

5. The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.


SECTION 3.

1.[498]The Senate of the United States shall be composed of two
Senators from each State, chosen by the Legislature thereof, for six
Years; and each Senator shall have one Vote.

2. Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three
Classes. The Seats of the Senators of the first Class shall be vacated
at the Expiration of the second Year, of the second Class at the
Expiration of the fourth Year, and of the third Class at the Expiration
of the sixth Year; so that one third may be chosen every second Year;
and if Vacancies happen by Resignation or otherwise, during the Recess
of the Legislature of any State, the Executive thereof may make
temporary Appointments until the next Meeting of the Legislature, which
shall then fill such Vacancies.

3. No Person shall be a Senator who shall not have attained to the Age
of thirty Years, and been nine Years a Citizen of the United States,
and who shall not, when elected, be an Inhabitant of that State for
which he shall be chosen.

4. The Vice-President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.

5. The Senate shall chuse their other Officers, and also a President
pro tempore in the Absence of the Vice-President, or when he shall
exercise the Office of President of the United States.

6. The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When
the President of the United States is tried, the Chief Justice shall
preside: And no Person shall be convicted without the Concurrence of
two thirds of the Members present.

7. Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust, or Profit under the United States: but the Party
convicted shall, nevertheless, be liable and subject to Indictment,
Trial, Judgment and Punishment, according to Law.


SECTION 4.

1. The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.

2. The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall by
Law appoint a different Day.


SECTION 5.

1. Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members, and a Majority of each shall
constitute a Quorum to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel the Attendance of
absent Members, in such Manner, and under such Penalties as each House
may provide.

2. Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behavior, and, with the Concurrence of two
thirds, expel a Member.

3. Each House shall keep a Journal of its Proceedings, and from time to
time publish the same, excepting such Parts as may in their Judgment
require Secrecy; and the Yeas and Nays of the Members of either House
on any question shall, at the Desire of one fifth of those Present, be
entered on the Journal.

4. Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.


SECTION 6.

1. The Senators and Representatives shall receive a Compensation for
their Services, to be ascertained by Law, and paid out of the Treasury
of the United States. They shall in all Cases, except Treason, Felony
and Breach of the Peace, be privileged from Arrest during their
Attendance at the Session of their respective Houses, and in going to
and returning from the same; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.

2. No Senator or Representative shall, during the Time for which he was
elected, be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments whereof
shall have been increased during such time; and no Person holding any
Office under the United States, shall be a member of either House
during his Continuance in Office.


SECTION 7.

1. All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments
as on other Bills.

2. Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States; If he approve he shall sign it, but if
not he shall return it, with his Objections, to that House in which it
shall have originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it. If after such Reconsideration
two thirds of that House shall agree to pass the Bill, it shall be
sent, together with the Objections, to the other House, by which it
shall likewise be reconsidered, and if approved by two thirds of that
House it shall become a Law. But in all such Cases the Votes of both
Houses shall be determined by Yeas and Nays, and the Names of the
Persons voting for and against the Bill shall be entered on the Journal
of each House respectively. If any Bill shall not be returned by the
President within ten Days (Sundays excepted) after it shall have been
presented to him, the Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjournment prevent its Return,
in which Case it shall not be a Law.

3. Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except on a
question of Adjournment), shall be presented to the President of the
United States; and before the Same shall take Effect, shall be approved
by him, or being disapproved by him, shall be repassed by two thirds
of the Senate and House of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill.


SECTION 8.

1. The Congress shall have Power to lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;

2. To borrow Money on the credit of the United States;

3. To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes;

4. To establish a uniform Rule of Naturalization, and uniform Laws on
the subject of Bankruptcies throughout the United States;

5. To coin Money, regulate the Value thereof, and of foreign Coin, and
fix the Standard of Weights and Measures;

6. To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;

7. To establish Post-Offices and Post Roads;

8. To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;

9. To constitute Tribunals inferior to the Supreme Court;

10. To define and punish Piracies and Felonies committed on the high
Seas, and Offences against the Law of Nations;

11. To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;

12. To raise and support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two Years;

13. To provide and maintain a Navy;

14. To make Rules for the Government and Regulation of the land and
naval Forces;

15. To provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions;

16. To provide for organizing, arming, and disciplining the Militia,
and for governing such Part of them as may be employed in the Service
of the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;

17. To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress, become the Seat of
the Government of the United States, and to exercise like Authority
over all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other needful Buildings;—And

18. To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by
this Constitution in the Government of the United States, or in any
Department or Officer thereof.


SECTION 9.

1. The Migration or Importation of such Persons as any of the States
now existing shall think proper to admit, shall not be prohibited by
the Congress prior to the Year one thousand eight hundred and eight,
but a Tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person.

2. The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.

3. No Bill of Attainder, or ex post facto Law shall be passed.

4. No Capitation or other direct Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before directed to be
taken.

5. No Tax or Duty shall be laid on Articles exported from any State.

6. No Preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another: nor shall
Vessels bound to, or from, one State, be obliged to enter, clear, or
pay Duties, in another.

7. No money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from
time to time.

8. No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince, or foreign State.


SECTION 10.

1. No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit;
make any Thing but gold and silver Coin a Tender in Payment of Debts;
pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any title of Nobility.

2. No State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be absolutely
necessary for executing it’s inspection Laws; and the net Produce of
all Duties and Imposts, laid by any State on Imports or Exports, shall
be for the Use of the Treasury of the United States; and all such Laws
shall be subject to the Revision and Controul of the Congress.

3. No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops or Ships of War, in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or
Engage in War, unless actually invaded, or in such imminent Danger as
will not admit of delay.


ARTICLE II.


SECTION 1.

1. The Executive Power shall be vested in a President of the United
States of America. He shall hold his office during the Term of four
Years, and, together with the Vice-President, chosen for the same Term,
be elected as follows:

2. Each State shall appoint, in such manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled in the Congress:
but no Senator or Representative, or Person holding an Office of Trust
or Profit under the United States, shall be appointed an Elector.

3.[499]The Electors shall meet in their respective States, and vote by
Ballot for two Persons, of whom one at least shall not be an Inhabitant
of the same State with themselves. And they shall make a List of all
the Persons voted for, and of the Number of Votes for each; which
List they shall sign and certify, and transmit sealed to the Seat of
the Government of the United States, directed to the President of
the Senate. The President of the Senate shall, in the Presence of
the Senate and House of Representatives, open all the Certificates,
and the Votes shall then be counted. The Person having the greatest
number of Votes shall be the President, if such Number be a Majority
of the whole Number of Electors appointed; and if there be more than
one who have such a Majority, and have an equal Number of Votes, then
the House of Representatives shall immediately chuse, by Ballot one of
them for President; and if no Person have a Majority, then from the
five highest on the List, the said House shall in like manner chuse the
President. But in chusing the President, the Votes shall be taken by
States, the Representation from each State having one vote; A quorum
for this Purpose shall consist of a Member or Members from two thirds
of the States, and a Majority of all the States shall be necessary
to a Choice. In every Case, after the Choice of the President, the
Person having the greatest Number of Votes of the Electors shall be the
Vice-President. But if there should remain two or more who have equal
Votes, the Senate shall chuse from them by Ballot the Vice-President.

4. The Congress may determine the Time of chusing the Electors, and the
day on which they shall give their Votes; which Day shall be the same
throughout the United States.

5. No Person except a natural-born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President; neither shall any Person be
eligible to that Office who shall not have attained to the Age of
thirty-five Years, and been fourteen Years a Resident within the United
States.

6. In Case of the Removal of the President from Office, or of his
Death, Resignation, or Inability to discharge the Powers and Duties
of the said Office, the Same shall devolve on the Vice-President,
and the Congress may by Law provide for the Case of Removal, Death,
Resignation, or Inability both of the President and Vice-President
declaring what Officer shall then act as President, and such Officer
shall act accordingly, until the disability be removed, or a President
shall be elected.

7. The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be Increased nor diminished during
the Period for which he shall have been elected, and he shall not
receive within that Period, any other Emolument from the United States,
or any of them.

8. Before he enter on the Execution of his Office he shall take the
following Oath or Affirmation:—“I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the United States,
and will, to the best of my Ability, preserve, protect, and defend the
Constitution of the United States.”


SECTION 2.

1. The President shall be Commander in Chief of the Army and Navy of
the United States, and of the Militia of the several States, when
called into the actual Service of the United States; he may require
the Opinion, in writing, of the principal Officer in each of the
Executive Departments, upon any Subject relating to the Duties of
their respective Offices, and he shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in Cases of
Impeachment.

2. He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other Public Ministers, and
Consuls, Judges of the Supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided
for, and which shall be established by Law: but the Congress may by Law
vest the Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of
Departments.

3. The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions which
shall expire at the End of the next Session.


SECTION 3.

1. He shall from time to time give to the Congress Information of the
State of the Union, and recommend to their Consideration such Measures
as he shall judge necessary and expedient; he may, on extraordinary
Occasions, convene both Houses, or either of them, and in Case of
Disagreement between them, with Respect to the time of Adjournment,
he may adjourn them to such Time as he shall think proper; he shall
receive Ambassadors and other public Ministers; he shall take Care that
the Laws be faithfully executed, and shall commission all the Officers
of the United States.


SECTION 4.

1. The President, Vice-President, and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.


ARTICLE III.


SECTION 1.

1. The judicial Power of the United States shall be vested in one
Supreme Court, and in such inferior Courts as the Congress may, from
time to time, ordain and establish. The Judges, both of the supreme
and inferior Courts, shall hold their Offices during good Behavior,
and shall, at stated Times, receive for their Services a Compensation,
which shall not be diminished during their Continuance in Office.


SECTION 2.

1.[500]The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;—to all
Cases affecting Ambassadors, other public Ministers and Consuls;—to
all Cases of admiralty and maritime Jurisdiction; to Controversies to
which the United States shall be a Party;—to Controversies between two
or more States;—between a State and Citizens of another State;—between
Citizens of different States,—between Citizens of the same State
claiming Lands under Grants of different States, and between a State,
or the Citizens thereof, and foreign States, Citizens, or Subjects.

2. In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a Party, the Supreme
Court shall have original Jurisdiction. In all the other Cases before
mentioned, the Supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such regulations as
the Congress shall make.

3. The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury; and such Trial shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress may by Law have
directed.


SECTION 3.

1. Treason against the United States, shall consist only in levying
War against them, or in adhering to their Enemies, giving them Aid
and Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in
open Court.

2. The Congress shall have Power to declare the Punishment of Treason,
but no Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attained.


ARTICLE IV.


SECTION 1.

1. Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. And the
Congress may by general Laws prescribe the manner in which such Acts,
Records, and Proceedings shall be proved, and the Effect thereof.


SECTION 2.

1. The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.

2. A Person charged in any State with Treason, Felony, or other Crime,
who shall flee from Justice, and be found in another State, shall on
Demand of the executive Authority of the State from which he fled, be
delivered up to be removed to the State having Jurisdiction of the
Crime.

3.[501]No Person held to Service or Labour in one State, under the
Laws thereof, escaping into another, shall, in Consequence of any Law
or Regulation therein, be discharged from such Service or Labour, but
shall be delivered up on Claim of the Party to whom such Service or
Labour may be due.


SECTION 3.

1. New States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the Jurisdiction of any
other State; nor any State be formed by the Junction of two or more
States, or Parts of States, without the Consent of the Legislatures of
the States concerned as well as of the Congress.

2. The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or of
any particular State.


SECTION 4.

1. 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 Legislature, or of the Executive
(when the Legislature cannot be convened) against domestic Violence.


ARTICLE V.

1. The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of
the several States, or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year one
thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that
no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate.


ARTICLE VI.

1. All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United
States under this Constitution, as under the Confederation.

2. 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; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.

3. The Senators and Representatives before mentioned, and the Members
of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall
be bound by Oath or Affirmation, to support this Constitution; but no
religious Test shall ever be required as a Qualification to any Office
or public Trust under the United States.


ARTICLE VII.

1. The Ratification of the Conventions of nine States, shall be
sufficient for the Establishment of this Constitution between the
States so ratifying the same.

                                        Done in Convention by the
                                        Unanimous Consent of the[502]
                                        States present the Seventeenth
                                        Day of September in the Year
                                        of our Lord one thousand seven
                                        hundred and Eighty seven and of
                                        the Independence of the United
                                        States of America the Twelfth
                                        _In Witness_ whereof We have
                                        hereunto subscribed our Names,

                                        Go: WASHINGTON—_Presidt. and
    deputy from Virginia._

Attest William Jackson Secretary.

[Note by Department of State: The interlined and rewritten words
mentioned in the above explanation, are in this edition, printed in
their proper places in the text.]

    _New Hampshire_:
         John Langdon
         Nicholas Gilman

    _Massachusetts_:
         Nathaniel Gorham
         Rufus King

    _Connecticut_:
         Wm: Saml. Johnson
         Roger Sherman

    _New York_:
         Alexander Hamilton

    _New Jersey_:
         Wil: Livingston
         David Brearley
         Wm. Paterson
         Jona: Dayton

    _Pennsylvania_:
         B Franklin
         Thomas Mifflin
         Robt. Morris
         Geo. Clymer
         Thos. Fitz Simons
         Jared Ingersoll
         James Wilson
         Gouv Morris

    _Delaware_:
         Geo: Read
         Gunning Bedford jun
         John Dickinson
         Richard Bassett
         Jaco: Broom

    _Maryland_:
         James McHenry
         Dan of St. Thos. Jenifer
         Danl Carroll

    _Virginia_:
         John Blair—
         James Madison Jr.

    _North Carolina_:
         Wm: Blount
         Richd. Dobbs Spaight
         Hu Williamson

    _South Carolina_:
         J. Rutledge
         Charles Cotesworth Pinckney
         Charles Pinckney
         Pierce Butler

    _Georgia_:
         William Few
         Abr Baldwin

[_Articles in Addition to and Amendment of the Constitution of the
United States of America, Proposed by Congress and Ratified by the
Legislatures of the several States, Pursuant to the Fifth Article of
the Constitution._]


(ARTICLE I.)

Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.


(ARTICLE II.)

A well-regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.


(ARTICLE III.)

No Soldier shall, in time of peace, be quartered in any house, without
the consent of the Owner, nor, in time of war, but in a manner to be
prescribed by law.


(ARTICLE IV.)

The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.


(ARTICLE V.)

No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person
be subject for the same offence to be twice put in jeopardy of life
or limb; nor shall 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.


(ARTICLE VI.)

In all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for obtaining
Witnesses in his favor, and to have the assistance of Counsel for his
defence.


(ARTICLE VII.)

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-examined in any Court of the
United States, than according to the rules of the common law.


(ARTICLE VIII.)

Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.


(ARTICLE IX.)

The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.


(ARTICLE X.)

The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively, or to the people.


(ARTICLE XI.)

The Judicial power of the United States shall not be construed to
extend 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.


(ARTICLE XII.)


SECTION 1.

The Electors shall meet in their respective States, and vote by ballot
for President and Vice-President, one of whom, at least, shall not
be an inhabitant of the same State with themselves; they shall name
in their ballots the person voted for as President, and in distinct
ballots the person voted for as Vice-President; and they shall make
distinct lists of all persons voted for as President, and of all
persons voted for as Vice-President, and of the number of votes for
each, which lists they shall sign and certify, and transmit sealed to
the seat of government of the United States, directed to the President
of the Senate;—the President of the Senate shall, in the presence of
the Senate and House of Representatives, open all the certificates and
the votes shall then be counted;—The person having the greatest number
of votes for President shall be the President, if such number be a
majority of the whole number of Electors appointed; and if no person
have such majority, then from the persons having the highest numbers
not exceeding three on the list of those voted for as President, the
House of Representatives shall choose immediately, by ballot, the
President. But in choosing the President, the votes shall be taken by
States, the representation from each State having one vote; a quorum
for this purpose shall consist of a member or members from two thirds
of the States, and a majority of all the States shall be necessary
to a choice. And if the House of Representatives shall not choose a
President whenever the right of choice shall devolve upon them, before
the fourth day of March next following, then the Vice-President shall
act as President, as in the case of the death or other constitutional
disability of the President. The person having the greatest number of
votes as Vice-President shall be the Vice-President, if such number
be a majority of the whole number of Electors appointed, and if no
person have a majority, then from the two highest numbers on the
list, the Senate shall choose the Vice-President; a quorum for the
purpose shall consist of two thirds of the whole number of Senators,
a majority of the whole number shall be necessary to a choice. But no
person constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.


(ARTICLE XIII.)


SECTION 1.

Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist
within the United States, or any place subject to their jurisdiction.


SECTION 2.

Congress shall have power to enforce this article by appropriate
legislation.


(ARTICLE XIV.)


SECTION 1.


All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.


SECTION 2.

Representatives shall be apportioned among the several States according
to their respective numbers, counting the whole number of persons
in each State, excluding Indians not taxed. But when the right to
vote at any election for the choice of electors for President and
Vice-President of the United States, Representatives in Congress,
the Executive and Judicial officers of a State, or the members of
the Legislature thereof, is denied to any of the male inhabitants of
such State, being twenty-one years of age, and citizens of the United
States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in
the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.


SECTION 3.

No person shall be a Senator or Representative in Congress, or elector
of President and Vice-President, or hold any office, civil or military,
under the United States, or under any State, who, having previously
taken an oath, as a member of Congress, or as an officer of the United
States, or as a member of any State Legislature, or as an executive
or judicial officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or rebellion against
the same, or given aid or comfort to the enemies thereof. But Congress
may by a vote of two thirds of each House, remove such disability.


SECTION 4.

The validity of the public debt of the United States, authorized by
law, including debts incurred for payment of pensions and bounties
for services in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any State shall assume or
pay any debt or obligation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss or emancipation
of any slave; but all such debts, obligations and claims shall be held
illegal and void.


SECTION 5.

The Congress shall have power to enforce, by appropriate legislation,
the provisions of this article.


(ARTICLE XV.)


SECTION 1.

The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any State on account of race,
color, or previous condition of servitude.


SECTION 2.

The Congress shall have power to enforce this article by appropriate
legislation.


(ARTICLE XVI.)

The Congress shall have power to lay and collect taxes on incomes from
whatever source derived, without apportionment among the several States
and without regard to any census or enumeration.


(ARTICLE XVII.)


SECTION 1.

The Senate of the United States shall be composed of two Senators from
each State, elected by the people thereof, for six years; and each
Senator shall have one vote. The Electors in each state shall have the
qualifications requisite for Electors of the most numerous branch of
the State Legislature.


SECTION 2.

When vacancies happen in the representation of any State in the Senate,
the executive authority of such State shall issue writs of election to
fill such vacancies: Provided, That the Legislature of any State may
empower the executive thereof to make temporary appointments until the
people fill the vacancies by election as the Legislature may direct.


SECTION 3.

This amendment shall not be construed as to affect the election or
term of any Senator chosen before it becomes valid as part of the
Constitution.


RATIFICATIONS OF THE CONSTITUTION.

The Constitution was adopted by a Convention of the States September
17, 1787, and was subsequently ratified by the several States, in the
following order, viz.:

    Delaware, December 7, 1787.
    Pennsylvania, December 12, 1787.
    New Jersey, December 18, 1787.
    Georgia, January 2, 1788.
    Connecticut, January 9, 1788.
    Massachusetts, February 6, 1788.
    Maryland, April 28, 1788.
    South Carolina, May 23, 1788.
    New Hampshire, June 21, 1788.
    Virginia, June 26, 1788.
    New York, July 26, 1788.
    North Carolina, November 21, 1789.
    Rhode Island, May 29, 1790.

The State of Vermont, by convention, ratified the Constitution on the
10th of January, 1791, and was, by an act of Congress of the 18th of
February, 1791, “received and admitted into this Union as a new and
entire member of the United States of America.”


RATIFICATIONS OF THE AMENDMENTS TO THE CONSTITUTION.

The first ten articles of amendment (with two others which were not
ratified by the requisite number of States) were submitted to the
several State Legislatures by a resolution of Congress which passed
on the 25th of September, 1789, at the first session of the First
Congress, and were ratified by the Legislatures of the following States:

    New Jersey, November 20, 1789.
    Maryland, December 19, 1789.
    North Carolina, December 22, 1789.
    South Carolina, January 19, 1790.
    New Hampshire, January 25, 1790.
    Delaware, January 28, 1790.
    Pennsylvania, March 10, 1790.
    New York, March 27, 1790.
    Rhode Island, June 15, 1790.
    Vermont, November 3, 1791.
    Virginia, December 15, 1791.

The acts of the Legislatures of the States ratifying these amendments
were transmitted by the governors to the President, and by him
communicated to Congress. The Legislatures of Massachusetts,
Connecticut, and Georgia, do not appear by the record to have ratified
them.

The eleventh article was submitted to the Legislatures of the several
States by a resolution of Congress passed on the 5th of March, 1794,
at the first session of the Third Congress; and on the 8th of January,
1798, at the second session of the Fifth Congress, it was declared by
the President, in a message to the two Houses of Congress, to have been
adopted by the Legislatures of three fourths of the States, there being
at that time sixteen States in the Union.

The twelfth article was submitted to the Legislatures of the several
States, there being then seventeen States, by a resolution of Congress
passed on the 12th of December, 1803, at the first session of the
Eighth Congress; and was ratified by the Legislatures of three fourths
of the States, in 1804, according to a proclamation of the Secretary of
State dated the 25th of September, 1804.

The thirteenth article was submitted to the Legislatures of the several
States, there being then thirty-six States, by a resolution of Congress
passed on the 1st of February, 1865, at the second session of the
Thirty-eighth Congress, and was ratified, according to a proclamation
of the Secretary of State dated December 18, 1865, by the Legislatures
of the following States:

    Illinois, February 1, 1865.
    Rhode Island, February 2, 1865.
    Michigan, February 2, 1865.
    Maryland, February 3, 1865.
    New York, February 3, 1865.
    West Virginia, February 3, 1865.
    Maine, February 7, 1865.
    Kansas, February 7, 1865.
    Massachusetts, February 8, 1865.
    Pennsylvania, February 8, 1865.
    Virginia, February 9, 1865.
    Ohio, February 10, 1865.
    Missouri, February 10, 1865.
    Indiana, February 16, 1865.
    Nevada, February 16, 1865.
    Louisiana, February 17, 1865.
    Minnesota, February 23, 1865.
    Wisconsin, March 1, 1865.
    Vermont, March 9, 1865.
    Tennessee, April 7, 1865.
    Arkansas, April 20, 1865.
    Connecticut, May 5, 1865.
    New Hampshire, July 1, 1865.
    South Carolina, November 13, 1865.
    Alabama, December 2, 1865.
    North Carolina, December 4, 1865.
    Georgia, December 9, 1865.

The following States not enumerated in the proclamation of the
Secretary of State also ratified this amendment:

    Oregon, December 11, 1865.
    California, December 20, 1865.
    Florida, December 28, 1865.
    New Jersey, January 23, 1866.
    Iowa, January 24, 1866.
    Texas, February 18, 1870.

The fourteenth article was submitted to the Legislatures of the several
States, there being then thirty-seven States, by a resolution of
Congress passed on the 16th of June, 1866, at the first session of the
Thirty-ninth Congress; and was ratified, according to proclamation of
the Secretary of State dated July 28, 1868, by the Legislatures of the
following States:

    Connecticut, June 30, 1866.
    New Hampshire, July 7, 1866.
    Tennessee, July 19, 1866.
 [503]New Jersey, September 11, 1866.
 [504]Oregon, September 19, 1866.
    Vermont, November 9, 1866.
    New York, January 10, 1867.
 [505]Ohio, January 11, 1867.
    Illinois, January 15, 1867.
    West Virginia, January 16, 1867.
    Kansas, January 18, 1867.
    Maine, January 19, 1867.
    Nevada, January 22, 1867.
    Missouri, January 26, 1867.
    Indiana, January 29, 1867.
    Minnesota, February 1, 1867.
    Rhode Island, February 7, 1867.
    Wisconsin, February 13, 1867.
    Pennsylvania, February 13, 1867.
    Michigan, February 15, 1867.
    Massachusetts, March 20, 1867.
    Nebraska, June 15, 1867.
    Iowa, April 3, 1868.
    Arkansas, April 6, 1868.
    Florida, June 9, 1868.
 [506]North Carolina, July 4, 1868.
    Louisiana, July 9, 1868.
 [506]South Carolina, July 9, 1868.
    Alabama, July 13, 1868.
 [506]Georgia, July 21, 1868.
    Mississippi, January 17, 1870.
    Texas, February 18, 1870.

[506]Virginia ratified this amendment on the 8th of October, 1869,
subsequent to the date of the proclamation of the Secretary of State.
Delaware, Maryland, and Kentucky rejected the amendment.

The fifteenth article was submitted to the Legislatures of the several
States, there being then thirty-seven States, by a resolution of
Congress passed on the 27th of February, 1869, at the first session of
the Forty-first Congress; and was ratified, according to a proclamation
of the Secretary of State dated March 30, 1870, by the Legislatures of
the following States:

    Nevada, March 1, 1869.
    West Virginia, March 3, 1869.
    North Carolina, March 5, 1869.
    Louisiana, March 5, 1869.
    Illinois, March 5, 1869.
    Michigan, March 8, 1869.
    Wisconsin, March 9, 1869.
    Massachusetts, March 12, 1869.
    Maine, March 12, 1869.
    South Carolina, March 16, 1869.
    Pennsylvania, March 26, 1869.
    Arkansas, March 30, 1869.
 [507]New York, April 14, 1869.
    Indiana, May 14, 1869.
    Connecticut, May 19, 1869.
    Florida, June 15, 1869.
    New Hampshire, July 7, 1869.
    Virginia, October 8, 1869.
    Vermont, October 21, 1869.
    Alabama, November 24, 1869.
    Missouri, January 10, 1870.
    Mississippi, January 17, 1870.
    Rhode Island, January 18, 1870.
    Kansas, January 19, 1870.
 [508]Ohio, January 27, 1870.
    Georgia, February 2, 1870.
    Iowa, February 3, 1870.
    Nebraska, February 17, 1870.
    Texas, February 18, 1870.
    Minnesota, February 19, 1870.

[509]The State of New Jersey ratified this amendment on the 21st of
February, 1871, subsequent to the date of the proclamation of the
Secretary of State.

The States of California, Delaware, Kentucky, Maryland, Oregon, and
Tennessee rejected this amendment.

The sixteenth article was passed by a resolution of Congress July 12,
1909; proclaimed by the Secretary of State, Philander C. Knox, as part
of the Constitution February 25, 1913, there then being forty-eight
States. The article was ratified by the States as follows:

    Alabama, August 17, 1909.
    Kentucky, February 9, 1910.
    South Carolina, February 19, 1910.
    Illinois, March 1, 1910.
    Mississippi, March 7, 1910.
    Oklahoma, March 14, 1910.
    Maryland, April 8, 1910.
    Georgia, August 3, 1910.
    Texas, August 17, 1910.
    Ohio, January 19, 1911.
    Idaho, January 20, 1911.
    Oregon, January 23, 1911.
    Washington, January 26, 1911.
    Montana, California, January 31, 1911.
    Indiana, February 6, 1911.
    Nevada, February 8, 1911.
    Nebraska, North Carolina, February 11, 1911.
    Colorado, February 20, 1911.
    North Dakota, February 21, 1911.
    Michigan, February 23, 1911.
    Iowa, February 27, 1911.
    Missouri, March 16, 1911.
    Maine, March 31, 1911.
    Tennessee, April 7, 1911.
    Arkansas, April 22, 1911.
    Wisconsin, May 26, 1911.
    New York, July 12, 1911.
    South Dakota, February 3, 1912.
    Arizona, April 9, 1912.
    Minnesota, June 11, 1912.
    Delaware, Wyoming, February 3, 1913.
    New Jersey, New Mexico, February 5, 1913.

The States of Rhode Island, New Hampshire, Kentucky and Utah rejected
this amendment.

The seventeenth article was passed by a resolution of Congress June 12,
1911; proclaimed by the Secretary of State, William J. Bryan, as part
of the Constitution May 31, 1913, there then being forty-eight States.
The article was ratified by the States as follows:

    Massachusetts, May 22, 1912.
    Arizona, June 3, 1912.
    Minnesota, June 10, 1912.
    New York, January 13, 1913.
    Kansas, January 17, 1913.
    Oregon, January 23, 1913.
    North Carolina, January 25, 1913.
    Michigan, California, January 28, 1913.
    Idaho, January 31, 1913.
    West Virginia, February 4, 1913.
    Nebraska, February 5, 1913.
    Iowa, February 6, 1913.
    Washington, Montana, Texas, February 7, 1913.
    Wyoming, February 11, 1913.
    Illinois, Colorado, February 13, 1913.
    North Dakota, February 18, 1913.
    Nevada, Vermont, February 19, 1913.
    Maine, February 20, 1913.
    New Hampshire, February 21, 1913.
    Oklahoma, February 24, 1913.
    Ohio, February 25, 1913.
    South Dakota, February 27, 1913.
    Indiana, March 6, 1913.
    Missouri, March 7, 1913.
    Tennessee, April 1, 1913.
    Arkansas, April 14, 1913.
    Pennsylvania, Connecticut, April 15, 1913.
    Wisconsin, May 9, 1913.




CASES CITED


  A

  Addystone (The), Pipe & Steel Co. _v._ U. S., 175 U. S., 211, (87)

  American Insurance Company _v._ Canter, 1 Peters, 511, (15, 47, 127,
          159, 193)

  Ames _v._ Kansas, 111 U. S., 449, (139)

  Arndt _v._ Griggs, 134 U. S., 316, (96)


  B

  Baldwin _v._ Hale, 1 Wallace, 223, (37, 38)

  Bank of Commerce _v._ New York City, 2 Black, 620, (51, 52, 122)

  Barbier _v._ Connolly, 113 U. S., 27, (207, 209)

  Barron _v._ Baltimore, 7 Peters, 243, (11, 32, 47, 156, 161)

  Bartemeyer _v._ Iowa, 18 Wallace, 129, (98)

  Battle _v._ U. S., 209 U. S., 36, (43)

  Beck _v._ Perkins, 139 U. S., 628, (137)

  Bedford, _v._ U. S., 192 U. S., 217, (100)

  Beef Trust, Swift and Co. _v._ U. S., 196 U. S., 375, (84)

  Beer Co. _v._ Massachusetts, 97 U. S., 25, (92)

  Blake _v._ McClung, 172 U. S., 239, (150, 151, 198)

  Börs _v._ Preston, 111 U. S., 252, (120, 137)

  Boyd _v._ Alabama, 94 U. S. 645, (92)

  Boyd _v._ U. S., 116 U. S., 616, (203, 225)

  Brewer Brick Co. _v._ Brewer, 62 Maine, 62, (60)

  Brig Wilson _v._ U. S., 1 Brockenbrough, 437, (63)

  Brimmer _v._ Rebman, 138 U. S., 78, (68, 79)

  Briscoe _v._ Bank of Kentucky, 11 Peters, 257, (41)

  Brown _v._ Houston, 114 U. S., 622, (80)

  Brown _v._ Maryland, 12 Wheaton, 419, (66, 75, 76)

  Brown _v._ U. S., 8 Cranch, 110, (47)

  Brown _v._ Walker, 161 U. S., 591, (162, 226)

  Bucher _v._ Cheshire, R. R. Co., 125 U. S., 555, (145)

  Buckner _v._ Finley, 2 Peters, 590, (148, 149)

  Burgess _v._ Seligman, 107 U. S., 20, (145)

  Buttfield _v._ Stranahan, 192 U. S., 470, (88)


  C

  Calder _v._ Bull, 3 Dallas, 386, (32, 224)

  Callan _v._ Wilson, 127 U. S., 540, (160)

  Capitol Traction Co. _v._ Hof, 174 U. S., 1, (210)

  Central Bridge Corporation _v._ City of Lowell, 4 Gray (Mass.), 474,
          (99)

  Chicago, etc., Ry. Co. _v._ Wellman, 143 U. S., 339, (186)

  Chisholm _v._ Georgia, 2 Dallas, 419, (114, 141 [note])

  Cincinnati, Wilmington, etc., R. R. Co. _v._ Commissioners, 1 Ohio
          St., 88, (169)

  Civil Rights Cases, 109 U. S., 3, (17, 24, 94, 217, 218, 220)

  Clark Distilling Co. _v._ Am. Ex. Co., and State of W. Va., (64)

  Clark Distilling Co. _v._ W. Md. R.R. Co., (64)

  Coe _v._ Errol, 116 U. S., 525, (73)

  Cohens _v._ Virginia, 6 Wheaton, 382, (13, 119, 121, 138, 162)

  Collector (The) _v._ Day, 11 Wallace, 113, (54, 55)

  Commissioners of Immigration _v._ North German Lloyd, 92 U. S., 259,
          (32)

  Commonwealth _v._ McCloskey, 2 Rawle (Pa.), 374, (186)

  Cook _v._ Marshall Company, 196 U. S., 261, (10)

  Corfield _v._ Coryell, 4 Washington C. C., 371, (200, 213)

  Cooley _v._ Board of Port Wardens of the Port of Philadelphia, 12
          Howard, 299, (74)

  Corporation Tax Cases, 220 U. S., 611, (62)

  Cotting _v._ Kansas City Stock Yards Co., 183 U. S., 79, (198)

  County of Mobile _v._ Kimball, 102 U. S., 691, (32)

  Crandall _v._ Nevada, 6 Wallace, 36, (214)

  Crutcher _v._ Kentucky, 141 U. S., 47, (78, 79)

  Cunningham _v._ Macon & Brunswick R. R. Co., 109 U. S., 446, (141)

  Cunnius _v._ Reading School District, 198 U. S., 458, (97)


  D

  Dalby _v._ Wolf, 14 Iowa, 228, (31)

  Dale Tile Mfg. Co. _v._ Hyatt, 125 U. S., 46, (44)

  Danbury Hatters’ Case, Loewe _v._ Lawler, 208 U. S., 274, (85)

  _Daniel Ball_ (The), 10 Wallace, 557, (71)

  Darrington _v._ Bank of Alabama, 13 Howard, 12, (41)

  Davis _v._ Beason, 133 U. S., 333, (195)

  Davis _v._ Packard, 7 Peters, 276, (120)

  Dent _v._ West Virginia, 129 U. S., 114, (207)

  Dooley _v._ U. S., 183 U. S., 151, (49)

  Dorr _v._ U. S., 195 U. S., 138, (49, 163)

  Douglas _v._ Kentucky, 168 U. S., 488, (92, 93)

  Downes _v._ Bidwell, 182 U. S., 244, (14, 49, 50, 160, 162, 163, 201)

  Drake _v._ U. S., _ex rel._ Bates, 30 App. D. C., 312;
    36 Wash. Law Rep., 140, (111)


  E

  East Hartford _v._ Hartford Bridge Co., 10 Howard, 511, (93)

  Escanaba Company _v._ Chicago, 107 U. S., 678, (74)

  _Ex parte_ Boyer, 109 U. S., 629, (138)

  _Ex parte_ Garland, 4 Wallace, 333, (107)

  _Ex parte_ Griffiths, 118 Indiana, 83, (136, 222)

  _Ex parte_ Milligan, 4 Wallace, 2, (198)

  _Ex parte_ Reggel, 114 U. S., 642, (17, 151, 152)

  _Ex parte_ Siebold, 100 U. S., 37, (138, 156, 218)

  _Ex parte_ Wall, 107 U. S., 265, (205)

  _Ex parte_ Watkins, 7 Peters, 568, (143)

  _Ex parte_ Yarbrough, 110 U. S., 651, (157, 177, 215, 216, 223)


  F

  Field _v._ Clark, 143 U. S., 649, (25, 169, 190)

  Fish _v._ Jefferson Police Jury, 116 U. S., 131, (91)

  Florida Central R. R. Co. _v._ Reynolds, 183 U. S., 476, (60)

  Fong Yue Ting _v._ U. S., 149 U. S., 698, (156)

  Foster _v._ Kansas, 112 U. S., 201, (98)

  Fox _v._ Ohio, 5 Howard, 410, (42)

  Franklin Needle Co. _v._ Franklin, 65 N. H., 177, (60)

  Frees _v._ Ford, 6 New York, 176, (186)

  French _v._ Barber Asphalt Paving Co., 181 U. S., 324, (62)

  Ft. Leavenworth R. R. Co. _v._ Loewe, 114 U. S. 525, (48)


  G

  Gaines _v._ Fuentes, 92 U. S., 10, (143)

  Garfield _v._ U. S., _ex rel._ Frost, 30 App. D. C., 165;
    35 Wash. Law Rep., 771, (111)

  Gelpoke _v._ City of Dubuque, 1 Wallace, 175, (144)

  Georgia R. R. and Banking Co. _v._ Smith, 128 U. S., 174, (93)

  Georgia _v._ Stanton, 6 Wallace, 57, (107)

  Gibbons _v._ Ogden, 9 Wheaton, 1, (32, 67, 68, 184)

  Gilman _v._ Philadelphia, 3 Wallace, 713, (32)

  Green _v._ Neal’s Lessee, 6 Peters, 291, (144)

  Griffin _v._ U. S., _ex rel._ Le Cuyer, 30 App. D. C., 291;
    36 Wash. Law Rep., 103, (111)

  Guinn and Beal _v._ U. S., 238 U. S., 347, (223)

  Gunn _v._ Barry, 15 Wallace, 610, (94)


  H

  Hanley _v._ Donaghue, 116 U. S., 1, (147, 148)

  Hanley _v._ Kansas City Southern Railroad Co., 187 U. S., 617, (70,
          88)

  Hans _v._ Louisiana, 134 U. S., 1, (141)

  Harman _v._ Chicago, 147 U. S., 396, (75)

  Harris _v._ People, 128 Illinois, 585, (225)

  Hartell _v._ Tilghman, 99 U. S., 558, (44)

  Hawaii _v._ Mankichi, 190 U. S., 197, (94, 163)

  Hayburn’s Case, 2 Dallas, 409, note, (222)

  Henderson _et al._ Mayor of the City of New York _et al._ (32)

  Henderson _v._ Mayor of New York, 92 U. S., 259, (68)

  Hepburn _v._ Ellzey, 2 Cranch, 445, (47, 126)

  Hepburn _v._ Griswold, 8 Wallace, 603, (39)

  Herdic _v._ Roessler, 109 N. Y., 127, (44)

  Hill and Co. Lmtd. _v._ Hoover, 220 U. S., 329, (44)

  Holden _v._ Hardy, 169 U. S., 366, (207)

  Hollinger _v._ Davis, 146 U. S., 314, (225)

  Hooe _v._ Jamieson, 166 U. S., 395, (142)

  Hope _v._ U. S., 227 U. S., 308, (88)

  Hull _v._ De Cuir, 95 U. S., 485, (32)

  Hurtado _v._ California, 110 U. S., 514, (205, 220)


  I

  Inman S. S. Co., _v._ Tinker, 94 U. S., 238, (81)

  _In re_ Debs, 158 U. S., 564, (87)

  _In re_ Neagle, 135 U. S., 1, (85, 106, 116)

  _In re_ Rapier, 143 U. S., 110, (43)


  J

  Juilliard _v._ Greenman, 110 U. S., 421, (38, 39, 95)


  K

  Kelly _v._ Pittsburgh, 104 U. S., 78, (62)

  Kendall _v._ U. S., 12 Peters, 524, (107)

  Kentucky Railroad Tax Cases, 115 U. S., 321, (62)

  Kidd _v._ Pearson, 128 U. S., 1, (73)

  Kimmish _v._ Ball, 129 U. S., 217, (10)

  Kingman _v._ City of Brockton, 153 Mass., 255, (61)

  Kirtland _v._ Hotchkiss, 100 U. S., 491, (53, 54)

  Knox _v._ Lee, 12 Wallace, 554, (40)

  Kohl _v._ U. S., 91 U. S., 367, (100)

  Kring _v._ Missouri, 107 U. S., 221, (224)


  L

  Lamar _ex_ _v._ Browne _et al._, 92 U. S., 187, (47)

  Lascelles _v._ Georgia, 148 U. S., 537, (152, 153, 154)

  Legal Tender Cases, 12 Wallace, 457, (156)

  Leisy _v._ Hardin, 135 U. S., 100, (68, 79, 81)

  License Cases (The), 5 Howard, 504, (10, 32, 97)

  Loan Association _v._ Topeka, 20 Wallace, 655, (52, 61)

  Lockner _v._ New York, 198 U. S., 45, (198, 209)

  Lord _v._ S. S. Co., 102 U. S., 541, (88)

  Lottery Cases, 188 U. S., 321, (83)

  L. S. & M. S. Railway Co. _v._ Ohio, 173 U. S., (68, 79)

  Luria _v._ U. S., 231 U. S., 9, (221)

  Luther _v._ Borden, 7 Howard, 1, (128, 131, 154, 155)


  M

  Marbury _v._ Madison, 1 Cranch, 177, (16, 18, 24, 64, 107, 119, 125,
          129, 131, 135, 143 [note], 176 [note], 185)

  Martin _v._ Hunter’s Lessee, 1 Wheaton, 304, (4, 125, 143, 188)

  Mattingly _v._ District of Columbia, 97 U. S., 687, (97)

  Mattox _v._ U. S., 156 U. S., 237, (226)

  Maxwell _v._ Dow, 176 U. S., 606, (220)

  Mayor (The) _etc._, of the City of New York _v._ Miln, 11 Peters,
          102, (32)

  McCrackin _v._ Hayward, 2 Howard, 608, (89, 94)

  McCulloch _v._ Maryland, 4 Wheaton, 316, (3, 6, 7, 9, 10, 19, 26, 31,
          34, 38, 51, 52, 53, 54, 66, 156, 187)

  McElmayle _v._ Cohen, 13 Peters, 312, (147)

  Metropolitan R. R. Co. _v._ District of Columbia, 132 U. S., 1, (48)

  Minor _v._ Happersett, 21 Wallace, 162, (155, 215)

  Mississippi _v._ Johnson, 4 Wallace, 475, (107, 110, 111)

  Missouri Pacific Ry. _v._ Nebraska, 164 U. S., 403, (95)

  Mitchell _v._ Clark, 110 U. S., 633, (94, 95)

  Moore _v._ Houston, 3 S. and R. (Pa.), 179, (36)

  Morgan S. S. Co. _v._ La. Board of Health, 118 U. S., 455, (68, 79)

  Morley _v._ L. S. & W. S. R. R., 146 U. S., 162, (93)

  Mormon Church _v._ U. S., 136 U. S., 1, (47)

  Mugler _v._ Kansas, 123 U. S., 623, (98, 209)

  Munn _v._ Illinois, 94 U. S., 113, (209)

  Murray _v._ Charleston, 96 U. S., 432, (90)

  Murray’s Lessee _v._ The Hoboken Land and Improvement Co., 18 Howard,
          272, (205)


  N

  National Bank _v._ County of Yankton, 101 U. S., 129, (159, 160)

  Neal _v._ Delaware, 103 U. S., 170, (223)

  New Orleans Gas Co. _v._ Louisiana Light Co., 115 U. S., 650, (93)

  Nishimura Ekin _v._ U. S., 142 U. S., 651, (221)

  Northern Securities Co. _v._ U. S., 193 U. S., 197, (84)

  Norton _v._ Shelby County, 118 U. S., 425, (188)


  O

  Ogden _v._ Saunders, 12 Wheaton, 332, (188)

  Ohio (The) and Mississippi R. R. Co. _v._ Wheeler, 1 Black, 286,
          (142)

  Osborn _v._ Bank of the U. S., 9 Wheaton, 738, (136, 137)


  P

  Packet Co. _v._ Keokuk, 95 U. S., 80, (81)

  Pana _v._ Bowler, 107 U. S., 529, (144)

  Parker _v._ Davis, 12 Wallace, 79, (39)

  Passenger (The) Cases, 7 Howard, 283, (81)

  Patterson _v._ Kentucky, 97 U. S., 501, (44)

  Paul _v._ Virginia, 8 Wallace, 168, (71, 149, 198, 213)

  Pembina Mining Co. _v._ Pennsylvania, 125 U. S., 181, (207)

  Pennoyer _v._ Neff, 95 U. S., 714, (96, 151)

  Pennsylvania College Cases, (Washington and Jefferson Colleges), 13
          Wallace, 190, (91)

  Pensacola Telegraph Co. _v._ Western Union Telegraph Co., 96 U. S.,
          1, (32, 67, 70)

  People _v._ Ruggles, 8 Johns (N.Y.), 290, (196)

  Pfeiffer _v._ Board of Education, 77 N. W. Rep., 250, (196, 203)

  Philadelphia and Southern S. S. Co. _v._ Pa., 122 U. S., 325, (59)

  Pierce _v._ Drew, 136 Mass., 75, (100)

  Pollock _v._ Farmer’s Loan and Trust Co., 158 U. S., 601, (190)

  P. R. Co. _v._ Pa., 15 Wallace, 300, (52, 53)

  Presser _v._ Illinois, 116 U. S., 252, (220)

  Prize (The) Cases, 2 Black, 635, (46)

  Pullman Car Co., 64 Fed. Reporter, 724, (85)

  Pumpelly _v._ Green Bay Co., 13 Wallace, 166, (99)


  R

  Railroad Co. _v._ Huson, 95 U. S., 465, (79, 81)

  Railroad Co. _v._ Tennessee, 101 U. S., 337, (141)

  Rasmussen _v._ U. S., 197 U. S., (49, 163)

  Rex _v._ Dawson, 5 State Trials, (45)

  Reynolds _v._ U. S., 98 U. S., 145, (195, 203)

  Rhodes _v._ Iowa, 170 U. S., 412, (81)

  Riggs _v._ Johnson County, 6 Wallace, 166, (143)

  Robbins _v._ Shelby County Taxing District, 120 U. S., 489, (78)

  Robertson _v._ Baldwin, 165 U. S., 275, (204)

  Robertson _v._ Cease, 97 U. S., 646, (118)

  Rogers _v._ Alabama, 192 U. S., 226, (17)


  S

  Salt Co. _v._ E. Saginaw, 13 Wallace, 373, (91)

  Sands _v._ Manistee River Improvement Co., 123 U. S., 238, (75, 157)

  Savings and Loan Society _v._ Multnomah County, 169 U. S., 421, (54)

  Schellenberger _v._ Pa., 171 U. S., 1, (68, 81)

  Scott _v._ Sandford, 19 Howard, 393, (58)

  Secretary (The) _v._ McGarrahan, 9 Wallace, 298, (189)

  Security Mutual Life Insurance Co. _v._ Prewitt, 202 U. S., 246, (143)

  Shreveport (The) Case (Houston East and West Texas Railway Co. _v._
          U. S.;
    Texas and Pacific Railway Co. _v._ U. S.), 234 U. S., 342, (88)

  Sinnot _v._ Davenport, 22 Howard, 227 (32)

  Slaughter House Cases, 16 Wallace, 77, (150, 156, 200, 212, 214, 215)

  Smith _v._ Alabama, 124 U. S., 465, (145)

  South Carolina _v._ U. S., 199 U. S., 437, (62)

  South Dakota _v._ North Dakota, 192 U. S., 286, (139)

  Southern Pacific Railroad Co. _v._ California, 118 U. S., 109, (137)

  Spaulding _v._ Vilas, 161 U. S., 483, (107)

  Spring Valley Water Works _v._ Schottler, 110 U. S., 347, (209)

  Sproule _v._ Fredericks, 69 Miss., 898, (3)

  Stanley _v._ Schwalby, 162 U. S., 255, (138)

  State _ex rel._ _v._ Simons, 32 Minn., 540, (136)

  State _ex rel._ _v._ Stone, 120 Missouri, 428, (111, 131, 189)

  State _ex rel._ Weiss _v._ District Board, 76 Wis., 177, (196)

  Steamboat (The) _Magnolia_, 20 Howard, 296, (137)

  Stone _v._ City of Charleston, 114 Mass., 214, (32)

  Strander _v._ West Virginia, 100 U. S., 303, (218)

  Sturgis _v._ Crowningshield, 4 Wheaton, 122 (188)

  Supervisors of Elections (Case of), 114 Mass., 247, (135)


  T

  Talbot _v._ Seeman, 1 Cranch, 38, (148)

  Taylor _v._ Place, 4 R. I., 324, (19, 31)

  Telegraph Co. _v._ Texas, 105 U. S., 460, (80)

  Texas _v._ White, 7 Wallace, 700, (156)

  Thompson _v._ Utah, 170 U. S., 343, (160, 163, 224)

  Thompson _v._ Whitman, 18 Wallace, 457, (146)

  Transportation Co. _v._ California Railroad Commission, 236 U. S.,
          151, (88)

  Transportation Co. _v._ Wheeling, 99 U. S., 273, (52, 82)

  Trebilcock _v._ Wilson, 12 Wallace, 687, (39)

  Trustees of Dartmouth College _v._ Woodward, 4 Wheaton, 518, (91)

  Turner _v._ Maryland, 107 U. S., 38, (81)

  Twining _v._ State of New Jersey, 211 U. S., 78, (221)


  U

  U. S. _v._ Aaron Burr, Cotton’s Constitutional Opinions of John
          Marshall, i., 100, (188)

  U. S. _v._ Black, 128 U. S., 40, (107, 111, 112, 189)

  U. S. _v._ Blaine, 139 U. S., 306, (107, 189)

  U. S. _v._ Boyd, 116 U. S., 616, (198)

  U. S. _v._ Cruikshank, 92 U. S., 542 (156, 197, 217)

  U. S. _v._ Del. & Hudson Ry., 213 U. S., 366 (88)

  U. S. _v._ E. C. Knight Co., 165 U. S., 1, (72)

  U. S. _ex rel._ Daly, 28 App. D. C., 552;
    35 Wash. Law. Rep., 81, (111)

  U. S. _ex rel._ _v._ Duell, 172 U. S., 576, (222)

  U. S. _ex rel._ Newcomb Motor Co., 30 App. D. C., 464;
    36 Wash. Law Rep., 150, (111)

  U. S. _v._ Fisher, 2 Cranch, 396, (26, 27)

  U. S. _v._ Freight Association, 166 U. S., 290, (127)

  U. S. _v._ Holliday, 3 Wallace, 407, (88)

  U. S. _v._ Lee, 106 U. S., 196, (133, 141)

  U. S. _v._ Louisville and Nashville R. R. Co., 236 U. S., 318, (198)

  U. S. _v._ Marigold, 9 Howard, 560, (42)

  U. S. _v._ Rauscher, 119 U. S., 407, (153)

  U. S. _v._ Rodgers, 150 U. S., 249, (46, 222)

  U. S. _v._ R. R. Co., 17 Wallace, 322, (59)

  U. S. _v._ Smith, 5 Wheaton, 153, (45)

  U. S. _v._ Texas, 143 U. S., 621, (139)

  U. S. _v._ Villato, 2 Dallas, 373, (221)

  U. S. _v._ Windom, 137 U. S., 636, (107, 189)

  U. S. _v._ Wong Kim Ark, 169 U. S., 649, (221)


  V

  Vanini _et al._ _v._ Paine _et al._, 1 Harr. (Del.) 65, (44)

  Veazie Bank _v._ Fenno, 8 Wallace, 533, (62)


  W

  Walker _v._ Sauvinet, 92 U. S., 90, (220)

  Walton _v._ Missouri, 91 U. S., 275, (76, 77)

  Ward _v._ Maryland, 12 Wallace, 418, (150)

  Weaver _v._ Fegely, 29 Pa. St., 27, (36)

  Weeks _v._ U. S., 232 U. S., 383, (198)

  Weems _v._ U. S., 217 U. S., 394, (49)

  Wellington, Petitioner, 16 Pickering (Mass.), 96, (186)

  Wells _v._ Bain, 75 Pa. St., 39, (3)

  West _v._ Cabell, 153 U. S., 78, (198)

  West _v._ Louisiana, 194 U. S., 258, (220)

  Western Union Telegraph Co. _v._ Call Publishing Co., 181 U. S., 92,
          (145)

  Weston _et al._ _v._ City of Charleston, 2 Peters, 466, (13)

  Wheaton _v._ Peters, 8 Peters, 591 (43)

  Whitten _v._ Tomlinson, 160 U. S., 231, (143)

  Wiley _v._ Sinkler, 179 U. S., 58, (157, 177, 216)

  Williamette Iron Bridge Co. _v._ Hatch, 125 U. S., 1, (32)

  Williamson _v._ Berry, 8 Howard, 540, (147)

  Wilson _v._ New Ferris, Receivers Mo. Ok. and G. Railway Co., (64)

  Wisconsin Central R. R. Co. _v._ Price County, 133 U. S., 496, (60)

  Wisconsin _v._ Pelican Insurance Co., 127 U. S., 265, (140)

  Woodruff _v._ Trapnall, 10 Howard, 190, (89, 90)


  Y

  Yick Wo _v._ Hopkins, 118 U. S., 356, (206, 211)




INDEX


    A

    Aliens, as citizens and allegiance of, 1

    Allegiance, 222

    Ambassadors, 119, 120, 137

    Amendments, protect fundamental rights, 22;
      the Sixteenth, 23, 24, 57, 61;
      I.-XVII., 28, 29, 57, 58, 61;
      Fourteenth, 96, 97;
      Eleventh, the, 114, 115;
      first ten, 173–175, 199, 200;
      Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, 175;
      Thirteenth, 176, 198, 200;
      Fourteenth, 176, 198, 200, 206, 207, 216, 217;
      Fifth, 198;
      Fifteenth, 222, 223;
      Ninth, 200;
      Tenth, 200, 203;
      Fourth, 203;
      Seventh, 210

    Anti-Trust Act, 83, 84, 85

    Appropriations, 22, 171;
      of Representatives and Senators, 179

    Arizona, admission of, 158

    Army, 171

    Asylum, right of, 152, 153

    Attainder, bill of, 22, 171, 172


    B

    Bank, State, 89, 90

    Bankruptcies, 36, 37

    Bible, in public schools, 202, 203

    Bill of credit, 41

    Bill of Rights, 173–175;
      the Constitution a, 187, 210, 211

    Bonds, 90

    Boycott, 84


    C

    Cabinet, the, 105, 106

    California, law of, held constitutional, 220

    Carriers, Common, 87

    Charters, 91

    Checks and balances, 164, 165;
      on the Executive, 166–169;
      on Congress, 170–177, 178;
      on the States, 176–181

    Checks on Congress, 27

    Chief Justice, in Court of Impeachment, 103, 108, 109

    Cities, jurisdiction over, 48

    Citizen, of a territory, of a State, 141, 142;
      privileges and immunities of, 149, 150, 212, 215, 220;
      as participant in the federal government, 182;
      as elector, 216

    Citizens, privileges and immunities of, 149, 150, 163 (note)

    Citizenship, defined, 212;
      two citizenships, 212, 213, 226–229

    Civil Rights Bill, 218, 219

    Comity, the law of State, 146–163

    Commerce, regulation of interstate, 22;
      law of, 63–88;
      regulation of, belongs to sovereignty, 63, 64;
      defined, 67;
      State and interstate, 63–88;
      unlawful restraint of, 72;
      when an article is of, 73;
      distinguished from manufacture, 73;
      “taxation of commerce,” meaning of, 75;
      principal of regulation of, 76, 77, 78;
      interstate, 78, 88;
      intrastate, 79, 80, 88;
      “foreign commerce,” 87, 88

    Confederation, a league, 7;
      unable to regulate commerce, 66

    Congress, law making by, 2, 18–50;
      determines extent of taxation, regulates commerce, protects
            citizens, determines jurisdiction of federal courts,
            assigns duties and powers to the President, 25;
      powers of, political, 26;
      abuse of powers by, 27;
      checks on, 27;
      test of authority of, 30, 31;
      powers of, derived, 34, 35;
      war power of, 46;
      power over territory, 48, 49, 50;
      power of, over commerce, 63–88;
      limitation of powers of, as to commerce, 69–88;
      debates in, as evidence in court, 127;
      decides political questions, 128;
      governs territory, 158–163;
      power over outlying possessions, 161, 162, 163;
      checks on, 170–176;
      unconstitutional legislation, 218, 219

    Constitution, the supreme law, 1;
      essential to sovereignty, 2;
      ordained by the people, 2;
      a practical instrument, 19, 20;
      provides only for judicial interpretation, 24;
      relative rank with act of Congress, 24, 25;
      unwritten, 27;
      how amended, 180, 181;
      administrative provisions in, 191, 192;
      essential features of, 194

    Constitutions, State, 1776–1787, 21;
      limit Legislatures, 22, 23

    Consuls, 119, 120, 137

    Contracts, between citizens of different States, 37, 38;
      obligation of, 37;
      a lawful, 40;
      law of, the, 89–101;
      obligation of, under the Constitution, 93, 94;
      constitutional use of the word, 98

    Convention, 107, 108

    Convention (federal), 6;
      to amend Constitution, 180, 181

    Cooley, quoted, 205

    Copyrights, 36, 43

    Corporations, municipal, 59;
      as citizen, 139, 142;
      rights of, 139, 140, 149

    Counterfeiting, 36, 41, 42

    Counties, jurisdiction over, 48

    Courts, inferior, 122 _et seq._

    Courts, Territorial, 125

    Courts, Supreme and inferior, 113, 122, 123;
      jurisdiction of federal, 115 _et seq._;
      Territorial, 125;
      political questions and the, 126;
      do not decide political questions, 128;
      province and duty of, 129;
      judicial supremacy, 129–131;
      essential power of the Supreme Court, 142, 143;
      federal sitting as State, 144, 145;
      limitation of federal, 178


    D

    Debts, of the U. S., 40

    Domain, eminent, exercise of, by U. S. or the States, 95, 97, 98,
            99, 100

    “Due process of law,” charitable institutions not entitled to, or
            a person, 60;
      a fundamental right, 95, 204, 220

    Duties, export, 22; uniform, 40, 171

    Duty, a ministerial, 110, 111, 112


    E

    Election, disputed, of President or Vice-President, 180

    Elections, disputed presidential, 167

    Electors, denial of right of, 179

    England, as sovereign, 2

    Excises, 40, 171

    Executive, law of, 102–112;
      checks on, 166–169

    Exemption, from taxation (Churches, Schools, etc.), 60;
      from income tax, 61

    Expatriation, 222

    Expenditures, public statement of, 22

    _Ex post facto_ law, 22, 171, 177, 224


    F

    _Federalist, The_, quoted or cited, 4, 8, 12, 13, 17, 33, 34,
            35, 36, 116, 117, 118, 187

    Fee, license, 74

    Felonies, 44

    Florida, as a territory, status in U. S., 127

    France, as sovereign, 2

    Fugitives from justice, 151, 152;
      political, 153, 154

    Ft. Leavenworth Military Reservation, 48


    G

    Gallatin, Albert, on Louisiana purchase, 14, 15

    Government, representative, 2;
      republican form guaranteed, 6;
      a unit, 19;
      distinguished from sovereignty, 23;
      limited, affected by Sixteenth Amendment, 23, 24;
      national, when supreme, 34;
      nature of national, 38;
      Marshall’s differentiation between State and federal, 51;
      of the U. S., distinct from the State, 116;
      what constitutes a lawful State, 128;
      principal of separation of powers of, 135, 136;
      of the U. S. power of, 137, 138;
      what is a republican form of? 154, 155, 156

    Governor, power of extradition, 151, 152;
      issues writs of election, 179


    H

    Habeas Corpus, 21, 143

    Hamilton, on National and State systems, 13;
      as interpreter of the Constitution, 28;
      as to State and federal sovereignty 35, 36;
      on residuary sovereignty, 177;
      on the Constitution as a Bill of Rights, 187

    Hayes, President, on power of the President, 109, 110

    House of Representatives (U. S.) members, 103, 172, 179;
      election of, 182, 216.
      (_See also_ _Congress_, _Powers_.)


    I

    Impeachment, 107

    Imports, 40

    Imposts, 171

    Information, prosecution by, 220

    Interstate commerce, testimony before, 225, 226


    J

    Jefferson, on Louisiana purchase, 13;
      as interpreter of the Constitution, 28

    Johnson, President, 103

    Judges, bound by the Constitution, 1

    Judiciary Act, 141

    Judiciary, as agent, 3, 4;
      law of judicial power, the, 113–145;
      supremacy of, 129–133

    Jurisdiction, of congress and legislatures, 18–50;
      principle of, 38;
      of the U. S., 45, 58, 63;
      of a State, 48;
      State and federal compared, 51, 68, 72, 73, 78, 80, 81, 82, 86,
            91, 92, 95, 97;
      the test, 53;
      of the Executive, 102–112;
      of the Judiciary, 113–145;
      of Supreme and of inferior federal courts, 118, 119, 120, 122, 123;
      admiralty, 121;
      federal and State distinguished, 124, 125;
      as to political questions, 126, 127;
      original of Supreme Court, 136, 137;
      national commercial, 137;
      principal of State, 146, 147;
      no new conferred by the constitution, 146;
      determines citizenship, 151

    _Jury_, as used in the Constitution, 209, 210;
      indictment of, 220

    Justice, principles of natural, 50


    K

    Kansas, jurisdiction over Ft. Leavenworth Military Reservation, 48

    Kentucky and Virginia Resolutions, 17 (note)


    L

    Law, presumption of, 31;
      test of constitutionality, 30, 31;
      bankrupt, insolvent, 37, 38;
      postal, 42;
      patent, 44;
      common, 45;
      inspection, 81;
      due process of, 95;
      what is constitutional? 132, 135;
      _ex post facto_, 22, 171, 224

    Legislatures, State, powers of, 22, 35–37, 53, 90;
      discretion of, 54, 79;
      appoints presidential electors, 167;
      office of, 218

    Limitations, the law of, 164–190

    Lincoln, Levi, on Louisiana purchase, 14

    Lincoln, President, on law of limitations, 166;
      on tenure of Cabinet officers, 105

    Liquors, 97, 98

    Louisiana, power to purchase, 13, 14, 15


    M

    Madison, defines a republic, 4, 5;
      on power of national government, 12, 13

    Mails, 42;
      and lottery tickets, 43, 85, 86

    Mandamus, 111

    Manufacture, distinguished from commerce, 73;
      right to, 98

    Marque and reprisal, 37

    Marshall, Chief Justice, defines U. S. government, 6, 7;
      on taxing power, 9, 10;
      on war and treaty-making powers, 15;
      enthrones Hamilton’s ideas, 28;
      on sovereignty, 34;
      distinction by, between State and federal, 51;
      on regulation of commerce, 63, 119;
      on international law, 148;
      lays down principle of constitutional interpretation, 186, 187

    Massachusetts, constitution of 1780, 5

    Measures, 36, 37

    Ministers, public, 119, 120, 137

    Monopolies, 72, 83, 84


    N

    Naturalization, 221

    Nobility, title of, 172

    Nuisance, 97

    Nullification, 17


    O

    Oath, 2

    Office, legal right to, 91;
      constitutional meaning of, 103


    P

    Package, original, 75

    Parliament, 21

    Parties, political, interpret the Constitution, 27, 28

    Patent rights, 36, 43

    People, The, sovereign, 2;
      author of supreme law, 5, 6;
      power to amend constitution, 7;
      sovereignty of, 12, 13

    Piracies, 44, 45

    Polygamy, 203

    Possessions, outlying, power of Congress over, 161, 162, 163

    Post offices, 42

    Post roads, 42

    Powers, derivative 2;
      original and derivative distinguished, 5;
      taxing, 9;
      legislative, 18–50;
      defined, 18;
      character of, 18–50;
      separation of, 19, 20;
      of respective Houses, 20, 21, 22;
      limitations of, 18, 22, 23, 24;
      American doctrine of, 19;
      parliamentary, 20, 21;
      nature and extent of Constitutional, 21;
      of Congress reflect eighteenth century ideas, 25, 26;
      of Congress derivative, 34, 35;
      implied, 36;
      conflict between State and federal, 36–39;
      implied or expressed, 38, 39, 55;
      police, 42–45, 73, 74, 79, 81, 91, 92, 98, 121, 205–208;
      of Congress as to crime or immorality, 42;
      taxing, 52, _et seq._;
      of State governments, 55, 56;
      judicial review of taxing, 57, 58;
      police powers of U. S. and States distinguished, 68;
      residuary of States, 73;
      taxing by State and U. S. defined, 76;
      law of executive, 102–112;
      law of judicial, 113–145;
      the U. S. Government, 137–139;
      exact division between State and federal unknown, 183;
      delegated, 191

    Preamble, 26, 76

    President, veto of, 2;
      military and naval power, 46;
      executes U. S. laws, 46;
      character of his decisions, 46, 47;
      nature of powers of, 102–112;
      oath of, 102;
      trial of, 103;
      test of execution of office of, 103;
      Johnson, 103;
      impeachment of, 102, 103, 107, 108

    Principles of Constitutional law, as to sovereignty, 9, 39, 217;
      separation of powers, 19;
      limitations, 22, 27;
      learned from judicial decisions, 30;
      as to adequate federal powers, 33, 34, 54;
      of natural justice, 50;
      as to commerce, 70;
      as to the police power, 92;
      as to obligation of contracts, 93;
      consequentive damages, 99;
      of judicial power, 130; 136;
      of federal judicial jurisdiction, 142, 143;
      of State comity, 147, 150;
      as to powers of Congress, 183;
      constitutional interpretation, 186, 187;
      fundamental rights, 191–211;
      equality of citizens, 217;
      due process of law, 219, 220;
      of citizenship, 221

    Prohibition, 97, 98


    R

    Receipts, publication of, 22

    Residuary sovereignty, 12

    Revenue, bills of, 172

    Rights, the law of fundamental, 190–211;
      religious liberty, 191, 195;
      freedom of speech, of the press, 196, 197;
      right of petition, 197;
      exemption from searches and seizures, 197, 198, 225;
      life, liberty, property, 199;
      realized through the Judiciary, 201;
      relation to Constitutional limitations, 202;
      trial by jury, 209, 210;
      bills of, 210, 211


    S

    Senate (U. S.) members, 103, 172, 179;
      treaties, 104;
      as Court of Impeachment, 108;
      represents the States, 180;
      election of, 216.
      (_See also_ _Congress_, _Powers_.)

    Services, Constitutional meaning of, 103

    Sovereignty, agent of, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12;
      delegated to Congress, 19, 20;
      of the people, 34;
      Hamilton on State and federal, 35, 36;
      national, 38, 39, 41, 100;
      possessed by U. S. and by States, 47;
      State distinguished from federal, 51;
      as to commerce, 63;
      of Congress over outlying possessions, 161–163

    State (in the Union), quasi-sovereign, 2;
      Legislature, 2;
      sovereignty of, 6–9, 55, 100;
      supremacy of, 34;
      powers of Legislatures derivative, 35, 36

    State, powers of legislature extinguished by Congress, 36;
      implied powers of, 36;
      power to punish counterfeiting, 41, 42;
      police power of, 43, 44, 45, 79, 81, 91, 92, 98, 121, 205, 206,
            207, 208;
      meaning of “State” in the Constitution, 47, 48, 141;
      and U. S. possess sovereignty, 47;
      subdivisions of, 48;
      system of State government distinguished from federal, 51;
      power of, over commerce, 64, 67;
      limitation of jurisdiction of, 82;
      may be petitioned, not suable, 114, 115;
      what constitutes a republican form of, 128;
      suability, 140;
      the word “States” in the Constitution, 141;
      jurisdiction of, determined, 147;
      principle of relation of State to State, 147, 148;
      law of in federal courts, 148;
      the States mutually foreign to one another, 148;
      rights of citizens of, 149;
      admission of a, 156, 157;
      the States indestructible, 158;
      new States, 173;
      limitation of power of, 176–181;
      the States as limitations on the U. S., 179, 180;
      appoints presidential electors, 179;
      subdivision of, 180;
      guaranteed a republican form of government, 180;
      States and amendment of the Constitution, 180, 181;
      citizenship, 213

    Suffrage, 223

    Supreme Court of the U. S., Marshall’s decisions, 28;
      principle of interpretation, 31, 34, 39, 186;
      on boundary between the federal and State systems, 51;
      part of the judicial department, 56;
      powers not delegated, 59;
      has not defined power over commerce, 63;
      nature of power of U. S. over commerce, 65, 76, 77;
      decisions on Anti-Trust Act, 83, 84;
      on obligation of contracts, 93;
      adequacy of its authority, 106;
      on executive and ministerial powers, 112;
      judicial power of, 113, 114 _et seq._;
      jurisdiction, original and appellate, 119–136;
      on the war power, 127;
      nature of jurisdiction, 129–142;
      determines constitutional law, 133–135;
      jurisdiction under the Judiciary Act, 141;
      relation to State tribunals, 144, 145;
      as to republican form of government, 155, 156;
      decision of as to power of Congress over Territories and
            possessions, 160–163, 183, 184, 201;
      on delegated powers, 175;
      jurisdiction when a State is a party, 178;
      function of the Judiciary, 185;
      power of U. S. to acquire territory, 193;
      power vested in, 194;
      on the nature of American institutions, 210, 211;
      on citizens’ rights, 214;
      on “due process of law,” 220;
      on the Fifteenth Amendment, 222, 223

    “Sweeping Clause,” 26


    T

    Tax, export, 22, 52;
      essentials of a good, 52, 60, 61;
      income, 58 (_and see under_ Amendment);
      exemptions, 60;
      direct, indirect, 61

    Taxation, law of, 51–62;
      by a State, 52–56;
      national, 54;
      power of U. S. over, 65, 66

    Tender, legal, 38, 39

    Territory, when sovereign, 47;
      power of Congress over, 48, 141, 183;
      the law of, and of territories, 146–163;
      becoming a State, 157, 158;
      governed by Congress, 159, 160, 162, 163

    Texas, law of, regulating commerce, 80

    Tickets, lottery, 43, 83, 85

    Treason, 172

    Treaties, 104;
      in the Senate, 180


    U

    United States, supreme law of, 2 _et seq._;
      laws of, by whom made, 2;
      guarantees republican form of government, 6;
      sovereignty of, 8–13;
      organization of, reflects popular will, 18;
      governmental functions of, 19, 20;
      powers of, 20 _et seq._;
      admiralty, jurisdiction of, 45, 46;
      war power of, 46;
      and States possess sovereignty, 47;
      civil system of, distinguished from State, 51;
      powers of, as to States, 54–57;
      power over commerce, 63–88;
      the peace of, 85;
      police power of, 95;
      citizenship, 214, 216, 217


    V

    Veto, 2

    Vice-President, 108


    W

    Waite, Chief Justice, quoted, 92

    Waters, navigable, 46

    Webster, Daniel, his definition of law, 205

    Weights, 36, 37

    Wilson, James, on the Constitution a Bill of Rights, 187, 188




FOOTNOTES


[1] Art. vi., 2, 3, and Preamble.

[2] Art. i., 7: 2.

[3] The Supreme Court of Mississippi in Sproule _v._ Fredericks, 69
Miss. 898 (1892), decided that the Constitutional Convention of that
State (1890) “wielded the powers of sovereignty specially delegated to
it, for the purpose and the occasion, by the whole electoral body, for
the good of the whole Commonwealth.” The Supreme Court of Pennsylvania
in Wells _v._ Bain, 75 Pa. St. 39 (1874), decided that the Convention
of 1872 was “not a co-ordinate branch of the government,” and possessed
only “delegated powers.” The Supreme Court of the United States,
through Marshall, C. J., decided in McCulloch _v._ Maryland, 4 Wheaton,
316 (1819), that the Constitution which came from the hands of the
Federal Convention of 1787 “was a mere proposal, without obligation,
or pretensions to it. By the Convention, by Congress, and by the State
Legislatures, the instrument was submitted to the people. They acted
upon it, in the only manner in which they can act safely, effectively,
and wisely, on such a subject, by assembling in convention. It is true
they assembled in their several States; and where else should they
have assembled? No political dreamer was ever wild enough to think of
breaking down the lines which separate the States, and of compounding
the American people into one common mass. Of consequence when they
act, they act in their States. But the measures they adopt do not, on
that account, cease to be the measures of the people themselves, or
become the measures of the State governments. From these conventions
the Constitution derives its whole authority. The government proceeds
directly from the people; is “ordained and established” in the name of
the people; and is declared to be ordained, “in order to@ form a more
perfect union, establish justice, insure domestic tranquillity, and
secure the blessings of liberty to themselves and to their posterity.”
The assent of the States in their sovereign capacity is implied in
calling a convention, and thus submitting that instrument to the
people. But the people were at perfect liberty to accept or reject it;
and their act was final. It required not the affirmance, and could
not be negatived by the State governments. The Constitution when thus
adopted was of complete obligation, and bound the State sovereignties.”
The character of the Constitution, its purport and principles, is
examined in Martin _v._ Hunter’s Lessee, 1 Wheaton, 304 (1816).
Decision by Story, J.

[4] No. xxxix.

[5] Art. v.

[6] Constitution (1780 to date) Pt. I. Art. iv. The words “substitutes
and agents” may be considered equivalent to the modern words
“administrative officers.”

[7] Art. iv., 4.

[8] McCulloch _v._ Maryland, note, _supra_.

[9] McCulloch _v._ Maryland, note, _supra_.

[10] _Idem._ (The language of the Court slightly paraphrased.)

[11] Art. v.

[12] _The Federalist_, No. lxii.

[13] McCulloch _v._ Maryland.

[14] Art. i., 8: 1; but see Amendment XVI.

[15] McCulloch _v._ Maryland.

[16] Articles i., 8: 5; ii., 2: 2; i., 10: 3; i., 8: 2.

[17] The License Cases, 5 Howard, 504 (1846); Kimmish _v._ Ball, 129
U. S., 217 (1889); Cook _v._ Marshall Company, 196 U. S., 261.

[18] Discussed at length in the chapters on State Comity, and Commerce.

[19] Art. iv. (and preceding note).

[20] See also Chapters XII and XIII.

[21] Barron _v._ Baltimore, 7 Peters, 243 (1833).

[22] No. xxxix.

[23] Cohens _v._ Virginia, 6 Wheaton, 382 (1821). Madison’s thought
is incorporated into Weston _et al._ _v._ the City of Charleston, 2
Peters, 466 (1829.)

[24] _The Federalist_, No. lxxxii.

[25] Gallatin’s _Writings_, i., 11.

[26] Sustained by Downes _v._ Bidwell, 182 U. S., 244 (1901).

[27] The American Insurance Company _v._ Canter, 1 Peters, 511 (1828).

[28] Compare the Preamble. The entire discussion in _The Federalist_ is
of the conformity of the Constitution to a republican government and of
the necessity of governmental powers adequate to governmental purposes.

[29] Art. x.

[30] Marbury _v._ Madison, 1 Cranch, 176 (1803).

[31] Every question in constitutional law, in the United States, sooner
or later leads back to a question of sovereignty. What that sovereignty
is can be known only by its operation,—that is, by political
experience. What powers are delegated by the Constitution is the
question answered (at least in part) by courts of law and legislatures,
by publicists and by the actual administration of government. Widely
divergent interpretations of that sovereignty and that law have been
held throughout our history as a nation. These divergent opinions are
recorded in the Debates during the formation and ratification of the
Constitution; in the discussions incident to the Kentucky and Virginia
Resolutions of 1798; in the discussions relating to Nullification, in
1833; again in 1860 and immediately prior; and in various decisions
of the Supreme Court of the United States. Chief Justice Marshall’s
decisions (some thirty-six in number), the opinion of that Court in his
time, remain the classic interpretation of national sovereignty. _The
Federalist_ remains the classic contemporaneous interpretation of the
Constitution.

The issue involved is, fundamentally, one of _functions_, and is viewed
at different times with different understandings. As a practical
question, it is one of _jurisdiction_ as legally understood, but as a
question of _service_ as politically understood. Here enter many and
diverse factors as morals, industry, communal interest, public safety,
social needs, and the like. Questions growing out of these are not and
cannot be decided finally by any generation. Each generation interprets
these factors. Thus constitutional interpretation becomes, not a fixed
quantity, but an adjustment to reason and necessity. Prudence dictates
that interpretation be conservative. The constitutional and political
history of America must be read along with its constitutional law.
In addition to cases already cited in this chapter, the following
may advantageously be read, though each contains matter of special
application to other aspects of the subject: _Ex parte_ Siebold, 100
U. S., 371 (1879); The Civil Rights Cases, 109 U. S., 3 (1883); Rogers
_v._ Alabama, 192 U. S., 226 (1904).

[32] Marbury _v._ Madison, 1 Cranch, 177.

[33] Art. i., 1.

[34] Art. vi., 2.

[35] A typical formulation in Massachusetts, (1780) Pt. I., xxx.
Discussed in Taylor _v._ Place, 4 R. I., 324 (1856.)

[36] McCulloch _v._ Maryland, 4 Wheaton, 316.

[37] Art. i., v.; Amendment XII.

[38] “The Sources and Authorship of the Constitution,” in the author’s
_Constitutional History of the United States_, iii., 464–515.

[39] Art. i., 8: 1.

[40] Art. i., 9: 2.

[41] _Id._, 3.

[42] _Id._, 5.

[43] _Id._, 6.

[44] _Id._, 7.

[45] See the Chapters on _The Law of Limitations_, and _The Law of
Fundamental Rights_.

[46] _Pennsylvania_, 1873, Art. i., 26.

[47] Thus annulling Art. i., 2: 3.

[48] It will be profitable to compare this amendment with the doctrine
laid down in Marbury _v._ Madison, 1 Cranch, 137. See also _The
Reconciliation of Government and Liberty_, J. W. Burgess (1915).

[49] The fundamental principle of judicial interpretation is laid down
in Marbury _v._ Madison; the principle is examined in the Chapter on
_The Law of Judicial Power_.

[50] Art. iii.

[51] This point is elaborated and examined by the Supreme Court
in the decision declaring the Civil Rights Bill of April 9, 1866,
unconstitutional. Civil Rights Cases, 109 U. S., 3 (1883). The doctrine
annunciated is that Congress has no power to legislate _generally_
upon subjects, power over which is reserved to the States by the Tenth
Amendment.

[52] See authorities at close of preceding Chapter; also Chapter XI.

[53] In this connection as to the President see Field _v._ Clark, 143
U. S., 649 (1892).

[54] Art. i., 8: 18.

[55] Preamble. As to “necessary and proper,” see United States _v._
Fisher, 2 Cranch, 396; McCulloch _v._ Maryland, 4 Wheaton, 421.

[56] U. S. _v._ Fisher, _supra_.

[57] The great opinions interpretative of the Constitution have
each their historical setting. Illustration of this is given in the
annotated editions of Marshall’s decisions, _e. g._, J. P. Cotton’s
edition, 2 vols. 1905.

[58] For a detailed history of the first fifteen amendments see the
author’s _Constitutional History of the United States_; the social and
political history from 1789 to 1870 are related, respectively, by John
Bach McMaster in his _History of the People of the United States_, and
by James Schouler in his _History of the United States_. J. F. Rhodes
in his _History of the United States from the Compromise of 1850_,
7 vols. (1850–1877), gives the history of congressional legislation
and of judicial interpretation during the period. Much of the history
relevant to the great decisions of the Court is given in the decisions.

[59] McCulloch _v._ Maryland, 4 Wheaton, 316 (1819). Many later
decisions apply this principle.

For an examination of the character and scope of the Legislative
Department, see

Taylor _v._ Place, 4 R. I., 324 (1856); Dalby _v._ Wolf, 14 Iowa, 228
(1862); Stone _v._ City of Charleston, 114 Mass., 214 (1873); Barrno
_v._ Baltimore, 7 Peters, 243 (1833); Calder _v._ Bull, 3 Dallas, 386
(1798).

The powers of Congress over taxation, commerce, the currency, war,
territories, outlying possessions, etc., are particularly examined
under appropriate headings in later chapters.

In addition to cases cited in the present Chapter, and to the above,
and relating to the powers of Congress, see Gibbons _v._ Ogden, 9
Wheaton, 1 (1824); The Mayor, etc., of the City of New York _v._ Miln,
11 Peters, 102 (1837); The License Cases, 5 Howard, 504 (1847); Sinnot
_v._ Davenport, 22 Howard, 227 (1859); Gilman _v._ Philadelphia, 3
Wallace, 713 (1865); Henderson _et al._ Mayor of the City of New York,
_et al._ Commissioners of Immigration _v._ North German Lloyd, 92
U. S., 259 (1875); Hull _v._ De Cuir, 95 U. S., 485 (1877); Pensacola
Telegraph Co. _v._ Western Union Telegraph Co., 96 U. S., 1 (1877);
County of Mobile _v._ Kimball, 102 U. S., 691 (1880); Williamette Iron
Bridge Co. _v._ Hatch, 125 U. S., 1 (1888).

The best brief treatise on the legislative in America is _American
Legislatures and Legislative Methods_, by Paul S. Reinsch, 1907;
the most exhaustive and authoritative treatise is _Constitutional
Limitations_, by Thomas M. Cooley. The general powers of Congress are
discussed by Justice Story in his _Commentaries on the Constitution_,
and by Chancellor Kent in his _Commentaries on American Law_.

See also the authorities cited in the present work on _The Law of the
Judicial Power_.

[60] No. xvi.

[61] No. xxxi.

[62] McCulloch _v._ Maryland, 4 Wheaton, 316 (1819).

[63] _The Federalist_, xxxii.

[64] _Idem._ and Weaver _v._ Fegely, 29 Pennsylvania State, 27 (1857).

[65] Moore _v._ Houston, 3 S. and R. (Pa.), 179, and the cases cited in
Weaver _v._ Fegely.

[66] See cases as under preceding note.

[67] Baldwin _v._ Hale, 1 Wallace, 223 (1863).

[68] Baldwin _v._ Hale, _supra_.

[69] Juilliard _v._ Greenman, 110 U. S., 421 (1884), citing and quoting
McCulloch _v._ Maryland.

[70] Art. i., 8: 1, 2, 5.

[71] Distinctions as to United States notes, coin, currency, legal
tender, etc., are brought out in Juilliard _v._ Greenman, _supra_;
Hepburn _v._ Griswold, 8 Wallace, 603 (1869); Parker _v._ Davis, 12
Wallace, 79 (1871); Trebilcock _v._ Wilson, 12 Wallace, 687 (1871).

[72] Knox _v._ Lee, Parker _v._ Davis, 12 Wallace, 554 (1871).

[73] An account of the struggles of political parties, and of the
successive decisions of the Supreme Court as to Legal Tender Acts
belongs to the history of the law rather than to a statement of the
essentials of present constitutional law. Accounts of this struggle,
available in histories of the United States, may be compared with
Justice Stephen J. Field’s account in J. Norton Pomeroy’s _Some Account
of the Work of Stephen J. Field as a Legislator, State Judge, and
Justice of the Supreme Court of the United States_ (1881), (Edition
by George C. Gorham, 1895) pp. 65–86. Mr. Justice Field’s dissenting
opinions from the decisions of the Supreme Court which sustain the
constitutionality of the Acts are based largely on his conception of
the principle of the obligation of a contract as contained in the
Constitution respecting “gold and silver coin.” For the history of the
Acts, the decision of the Court invalidating them (1869); the increase
of the membership of the Court (1870); the reversal of the earlier
decisions (1871), and the final decision in Juilliard _v._ Greenman
(1883), consult Rhodes, vi., 268, 270–273, and Note.

[74] Art. i., 10: 1.

[75] Briscoe _v._ Bank of Kentucky, 11 Peters, 257 (1837).

[76] Darrington _v._ The Bank of Alabama, 13; Howard, 12 Briscoe _v._
Bank of Kentucky, _supra_.

[77] Art. i., 8: 6.

[78] _Id._ 5, 10: 1.

[79] United States _v._ Marigold, 9 Howard, 560 (1849); Fox _v._ Ohio,
5 Howard, 410.

[80] _In re_ Rapier, 143 U. S., 110 (1892); Battle _v._ U. S., 209
U. S., 36.

[81] Wheaton _v._ Peters, 8 Peters, 591 (1834).

[82] Vanini _et al._ _v._ Paine _et al._ 1 Harr. (Del.) 65, quoted in
Patterson _v._ Kentucky, 97 U.S., 501 (1878).

[83] _Id._ See also Herdic _v._ Roessler, 109 New York, 127 (1888);
Hill and Co. Lmtd. _v._ Hoover, 220 U.S., 329. “Where a suit is brought
on a contract of which a patent is the subject matter, either to
enforce such contract, or to annul it, the case arises on the contract
and not under the patent laws.” Hartell _v._ Tilghman, 99 U.S., 558.
See also Dale Tile Mfg. Co. _v._ Hyatt, 125 U.S., 46 (1888).

[84] Rex _v._ Dawson, 5 State Trials.

[85] U. S. _v._ Smith, 5 Wheaton, 153 (1820).

[86] Art. iii., 2: 1.

[87] U. S. _v._ Rodgers, 150 U. S., 249 (1893).

[88] Art. i., 8: 11; The Prize Cases, 2 Black, 635 (1862).

[89] Brown _v._ U. S., 8 Cranch, 110; American Insurance Co. _v._
Canter, 1 Peters, 511; Lamar _ex._ _v._ Browne _et al._, 92 U. S., 187;
Mormon Church _v._ U. S., 136 U. S., 1.

[90] Hepburn _v._ Ellzey, 2 Cranch, 445 (1804).

[91] Barron _v._ Baltimore, 7 Peters, 243 (1833).

[92] Metropolitan R. R. Co. _v._ District of Columbia, 132 U. S., 1
(1889).

[93] Ft. Leavenworth R. R. Co. _v._ Lowe, 114 U. S., 525 (1885).

[94] Art. iv., 3.

[95] Dorr _v._ U. S., 195 U. S., 138 (1904); Hawaii _v._ Mankichi, 190
U. S., 197 (1903); Dooley _v._ U. S., 183 U. S., 151 (1901); Downes
_v._ Bidwell, 182 U. S. (1901); Rasmussen _v._ U. S., 197 U. S., Weems
_v._ U. S., 217 U. S., 349. (But see dissenting opinions in above
cases.)

[96] Downes _v._ Bidwell, _supra_, and cases and laws therein cited and
quoted.

[97] _Idem._

[98] There are powerful dissenting opinions in the various Insular
Cases. The chief objection to the unlimited control of insular
territory by Congress is that Congress itself, by the Constitution,
possesses only limited powers. How can a limited Congress exercise
unlimited powers?

[99] Downes _v._ Bidwell, _supra_. (The Court cites, in confirmation,
the history of Congress and of the British Parliament.)

[100] Bank of Commerce _v._ New York City, 2 Black, 620 (1862) quoting
from McCulloch _v._ Maryland, 4 Wheaton, 431 (1819). The principle is
laid down in the decision that “the sovereignty of a State extends to
everything which exists by its own authority, or is introduced by its
permission; but it does not extend to these means which are employed by
Congress to carry into execution powers conferred on that body by the
people of the United States.” _Id._ 429.

[101] Bank of Commerce _v._ New York City, _supra_.

[102] Loan Association _v._ Topeka, 20 Wallace, 655 (1874), quoting
Cooley on _Constitutional Limitations_, 479.

[103] P. R. Co. _v._ Pennsylvania, 15 Wallace, 300 (1872). The
constitutional use of the taxing power by the United States and by
the several States is examined by Hamilton in _The Federalist_, No.
xxxii.,—the classic contemporaneous exposition of the taxing clauses
of the Constitution. For a judicial examination of these clauses see
Transportation Company _v._ Wheeling, 99 U. S., 273 (1878). The idea
held both by Hamilton and by the Court is that taxation is the exercise
of sovereign power; that “all subjects over which the sovereign power
of a State extends are objects of taxation,” but that “objects over
which it does not extend, as for example, the means and instruments of
the general government, are exempt from taxation.” (The quotation in
Transportation Co. _v._ Wheeling, from McCulloch _v._ Maryland is not
verbally accurate.)

[104] The phrase (_Federalist_, No. lxii.) may be Hamilton’s or
Madison’s.

[105] P. R. Co., _v._ Pennsylvania, 15 Wallace, 300.

[106] This principle applies also in international law.

[107] The principle is established in McCulloch _v._ Maryland.

[108] Kirtland _v._ Hotchkiss, 100 U. S., 491 (1879).

[109] Kirtland _v._ Hotchkiss, _supra_. Thus, “If the law treats the
mortgagee’s interest in the land as real estate for his protection, it
is not easy to see why the law should forbid it to be treated as real
estate for the purpose of taxation.” Savings and Loan Society _v._
Multnomah County, 169 U. S., 421 (1898).

[110] McCulloch _v._ Maryland, _supra_, quoted in The Collector _v._
Day, 11 Wallace, 113 (1870).

[111] The Collector _v._ Day, _supra_. (The Court quotes the Tenth
Amendment, in this connection, as the basis of its decision.)

[112] _Idem._

[113] The Collector _v._ Day, _supra_.

[114] _Id._

[115] The Collector _v._ Day, _supra_.

[116] _Id._

[117] Amendment XVI.

[118] Compare the effect of the Thirteenth Amendment, the Fourteenth
and Fifteenth Amendments on the decision of the Supreme Court in Scott
_v._ Sandford, 19 Howard, 393 (1857).

[119] To what extent a salaried official of a State is exempt from
inclusion of his salary as income taxable under the Sixteenth Amendment
is as yet not determined by judicial decision. “The corporate
franchises, the property, the business, the income of corporations
created by a State may undoubtedly be taxed by the State; but in
imposing such taxes care should be taken not to interfere with or
hamper, directly or by indirection, interstate or foreign commerce, or
any other matter exclusively within the jurisdiction of the Federal
government. This is a principle so often announced by the courts, and
especially by this court (the Supreme Court of the United States) that
it may be received as an axiom of our constitutional jurisprudence.”
Philadelphia and Southern Steamship Company _v._ Pennsylvania, 122
U. S., 326 (1887).

[120] United States _v._ R. R. Co., 17 Wallace, 322 (1873).

[121] See the Chapter on _The Law of Fundamental Rights_, _post_.

[122] Wisconsin Central R. R. Co. _v._ Price County, 133 U. S.,
496 (1890). As to exemptions, the decisions are conflicting. Not
infrequently notices may be seen of exemption of manufacturing plants,
or other industrials, from taxation, if they locate within a community.
Mississippi in its constitution of 1890 made such exemptions by special
ordinance. Such exemption has been held valid in Franklin Needle
Co. _v._ Franklin, 65 N. H., 177; Florida Central Railway Co. _v._
Reynolds, 183 U. S., 476; _Per contra_, Brewer Brick Co. _v._ Brewer,
62 Maine, 62.

[123] Loan Association _v._ Topeka, 20 Wallace, 655 (1874); Kingman
_v._ City of Brockton, 153 Mass., 255 (1891); an admirable note citing
decisions as to a good tax may be found in L. B. Evans, _Leading Cases
on American Constitutional Law_ (Ed. 1916), p. 211.

[124] Art. i., 2: 3; 8: 1.

[125] Art. i., 8: 1. Kentucky Railroad Tax Cases, 115 U. S., 321
(1885); Kelly _v._ Pittsburgh, 104 U. S., 78 (1881); French _v._ Barber
Asphalt Paving Co., 181 U. S., 324 (1901); Veazie Bank _v._ Fenne, 8
Wallace, 533 (1869); Corporation Tax Cases, 220 U. S., 611 (1911).

[126] South Carolina _v._ United States, 199 U. S., 437 (1905). The
State conducted dispensatories and derived profit from them. It was
held liable for internal revenue. The exercise by the State, as a
dispenser, was held not to exempt it from the operation of the law.

[127] Art. i., viii., 3.

[128] Brig Wilson _v._ U. S., 1 Brockenbrough, 437 (1820).

[129] See decision of the Supreme Court sustaining the “Webb-Kenyon”
Law decommercializing (interstate) intoxicating liquors, Clark
Distilling Company _v._ W. Md. R. R. Co.; _Id._ _v._ Am. Ex. Co. and
State of W. Va. (January 8, 1917).

The power of Congress to deal with the hours of work and wages of
employees engaged in interstate commerce is examined in Wilson _v._
New and Ferris, Receivers, Mo. Ok., & G. Railway Co., March 19, 1917.
(Constitutionality of the “Adamson” law.)

[130] Art. vi., 2.

[131] Marbury _v._ Madison, 1 Cranch, 177 (1803).

[132] McCulloch _v._ Maryland, 4 Wheaton, 430 (1819).

[133] Brown _v._ Maryland, 12 Wheaton, 419 (1827).

[134] Gibbons _v._ Ogden, 9 Wheaton, 1 (1824).

[135] Pensacola Telegraph Co. _v._ Western Union Telegraph Co., 96
U. S., 1 (1877).

[136] So in Gibbon _v._ Ogden, _supra_.

[137] Henderson _v._ Mayor of New York, 92 U. S., 259 (1875); L. S.
& M. S. Railway Co. _v._ Ohio, 173 U. S. (1899); Railroad Co. _v._
Husen, 95 U. S., 465 (1877); Brimmer _v._ Rebman, 138 U. S., 78 (1891);
Morgan’s S. S. Co. _v._ Louisiana Board of Health, 118 U. S., 455
(1886); Leisy _v._ Hardin, 135 U. S., 100 (1890); Schellenberger _v._
Pennsylvania, 171 U. S., 1 (1898).

[138] The trend of these respective lines is disclosed by the decisions
in the cases cited in this Chapter.

[139] Pensacola Telegraph Co. _v._ Western Union Telegraph Co., 96
U. S., 1 (1877). The important word here is “jurisdiction.” “To
bring the transportation within the control of the State, as part of
its domestic commerce, the subject transported must be within the
entire voyage under the exclusive jurisdiction of the State.” Hanley
_v._ Kansas City Southern Railroad Co., 187 U. S., 617 (1903). The
Immigration Law (February 20, 1897, amended March 26, 1910), contains
the protective features the State would demand through exercise of its
police power. So too the Federal Meat Inspection Act (March 4, 1907).

[140] _The Daniel Ball_, 10 Wallace, 557 (1870).

[141] Act of Congress, March 2, 1893.

[142] “The insurance business does not constitute interstate commerce.”
Paul _v._ Virginia, 8 Wallace, 168 (1868). But the power to regulate
commerce doubtless includes legislation placing common carriers engaged
in interstate commerce under such federal control as to constitute
federal ownership of railroads, telegraph and telephone lines,
steamships, sailing vessels, etc., etc. Such ownership is illustrated
in France, Germany, Italy, Russia, and in other countries.

[143] The Sherman Anti-Trust Law of July 2, 1890, and decisions of the
Supreme Court concerning it, are illustrations.

[144] See the Hours of Service Act (March 4, 1907); the Adamson Act
(1916), and other acts indicative of the trend in the congressional
exercise of the power.

[145] United States _v._ E. C. Knight Co., 156 U. S., 1 (1895).

[146] Art. i., 8: 3.

[147] Coe _v._ Errol, 116 U. S., 525.

[148] Kidd _v._ Pearson, 128 U. S., 1.

[149] Cooley _v._ Board of Wardens of the Port of Philadelphia, 12
Howard, 299 (1851).

[150] Escanaba Company _v._ Chicago, 107 U. S., 678 (1882).

[151] Harman _v._ Chicago, 147 U. S., 396 (1893).

[152] Sands _v._ Manistee River Improvement Company, 123 U. S., 238.

[153] Brown _v._ Maryland, 12 Wheaton, 419 (1827).

[154] Brown _v._ Maryland, 12 Wheaton, 419 (1827).

[155] Walton _v._ Missouri, 91 U. S., 275 (1875).

[156] The evil effect of discriminating State legislation, and the
like, during the Articles of Confederation, are dwelt on by the Court
in Walton _v._ Missouri, _supra_.

[157] Walton _v._ Missouri, _supra_.

[158] Robbins _v._ Shelby County Taxing District, 120 U. S., 489 (1887).

[159] _Idem._

[160] Crutcher _v._ Kentucky, 141 U. S., 47 (1891).

[161] As by the act forbidding the transportation of lottery tickets
through the mails.

[162] Crutcher _v._ Kentucky, 141 U. S., 47 (1891).

[163] _Idem._ Cases decisive of the police powers of a State are
numerous. The principle involved may be deduced from Railroad Company
_v._ Huson, 95 U. S., 465 (1877); Brimmer _v._ Rebman, 138 U. S., 78
(1891); Morgan’s S. S. Company _v._ Louisiana Board of Health, 118
U. S., 455 (1886); Leisy _v._ Hardin, 135 U. S., 100 (1890); L. S. and
M. S. R. R. _v._ Ohio, 173 U. S., 285 (1899).

[164] Crutcher _v._ Kentucky, _supra_.

[165] Brown _v._ Houston, 114 U. S., 622 (1885), in which the cases are
cited.

[166] Telegraph Company _v._ Texas, 105 U. S., 460 (1881).

[167] Leisy _v._ Hardin, 135 U. S., 100 (1890). An act of the
Legislature, or a constitutional provision prohibiting the manufacture
or sale of intoxicating liquors within a State, is an example of
exercise of the police power by a State. See also Rhodes _v._ Iowa,
170 U. S., 412 (1898). Schellenberger _v._ Pennsylvania, 171 U. S., 1
(1898); and cases cited _supra_ touching State police power.

[168] The Passenger Cases, 7 Howard, 283.

[169] R. R. Co. _v._ Huson, 95 U. S., 465 (1877).

[170] Turner _v._ Maryland, 107 U. S., 38 (1882).

[171] Inman S. S. Co. _v._ Tinker, 94 U. S., 238 (1876).

[172] Packet Co. _v._ Keokuk, 95 U. S., 80 (1877).

[173] Transportation Co. _v._ Wheeling, 99 U. S., 273 (1878).

[174] Lottery Cases, 188 U. S., 321 (1903).

[175] _Id._

[176] 26 Statutes at Large, 209.

[177] Northern Securities Company _v._ United States, 193 U. S., 197
(1904).

[178] Beef-Trust case, Swift and Co. _v._ U. S., 196 U. S., 375.

[179] Danbury Hatters’ Case, Loewe _v._ Lawler, 208 U. S., 274; see
also Pullman Car Company, 64 Fed. Reporter, 724.

[180] _In re_ Neagle, 135 U. S., 1 (1889).

[181] _In re_ Debs, 158 U. S., 564 (1895).

[182] The Addystone Pipe & Steel Company _v._ United States, 175 U. S.,
211 (1899).

[183] The Shreveport Case, (Houston, East and West Texas Railway Co.
_v._ United States; Texas and Pacific Railway Co. _v._ United States)
234 U. S., 342 (1914).

NOTE.—Cases further illustrating prohibition of a business or activity
by operation of laws passed under the commerce clause: United States
_v._ Holliday, 3 Wallace, 407 (1866); Buttfield _v._ Stranahan, 192
U. S., 470 (1904); U. S. _v._ Del. & Hudson Ry., 213 U. S., 366 (1909);
Hope _v._ U. S., 227 U. S., 308 (1913).

Cases illustrating exercise of the power over commerce given by
the clause and exercising jurisdiction over commerce claimed to be
intrastate but forming as it were a link in the chain of interstate
commerce: Lord _v._ S. S. Co., 102 U. S., 541 (1880); Wilmington
Transportation Co. _v._ California Railroad Commission, 236 U. S., 151
(1915); Hanley _v._ Kansas City Southern Ry., 187 U. S., 617 (1903).

It will be well to read the dissenting opinions in any of these cases
as these usually emphasize the power of the State over commerce.

[184] Art. i., 10: 1.

[185] McCrackin _v._ Hayward, 2 Howard, 608 (1844).

[186] Woodruff _v._ Trapnall, 10 Howard, 190 (1850).

[187] Woodruff _v._ Trapnall, 10 Howard, 190 (1850).

[188] Murray _v._ Charleston, 96 U. S., 432 (1877).

[189] _Idem._

[190] Salt Company _v._ East Saginaw, 13 Wallace, 373 (1871).

[191] Fisk _v._ Jefferson Police Jury, 116, U. S., 131 (1885).

[192] Trustees of Dartmouth College _v._ Woodward, 4 Wheaton, 518
(1819).

[193] Case of the conjunction of Washington and Jefferson Colleges,
Pennsylvania College Cases, 13 Wallace, 190 (1871).

[194] Boyd _v._ Alabama, 94 U. S., 645.

[195] Beer Company _v._ Massachusetts, 97 U. S., 25 (1877).

[196] Douglas _v._ Kentucky, 168 U. S., 488 (1897).

[197] Douglas _v._ Kentucky, _supra_; New Orleans Gas Co. _v._
Louisiana Light Co., 115 U. S., 650 (1885).

[198] See the cases cited in New Orleans Gas Co. _v._ Louisiana,
_supra_.

[199] Georgia R. R. and Banking Co. _v._ Smith, 128 U. S., 174 (1888);
East Hartford _v._ Hartford Bridge Co., 10 Howard, 511 (1850). But a
judgment (judicial decision) is not a contract in the meaning of the
Constitution. Morley _v._ L. S. & M. S. R. R., 146 U. S., 162 (1892).

[200] McCrackin _v._ Hayward, 2 Howard, 608 (1844). All legal remedies
for the enforcement of a contract belonging to it at the time and place
when and where it is made are a part of its obligation. Any provision
of a State law or constitution impairing such remedies are void. Gunn
_v._ Barry, 15 Wallace, 610 (1872); Mitchell _v._ Clark, 110 U. S.
(1884). But the prohibition, in the Constitution, of any State to make
any law impairing the obligation of contracts “did not give to Congress
power to provide laws for the general enforcement of contracts; nor
power to invest the courts of the United States with jurisdiction
over contracts, so as to enable parties to sue upon them in those
courts. It did, however, give the power to provide remedies by which
the impairment of contracts by State legislation might be counteracted
and corrected: and this power was exercised.” Civil Rights Cases, 109
U. S., 3 (1883).

[201] Juilliard _v._ Greenman, 110 U. S., 421 (1884), and see note
_supra_, p. 92.

[202] Consult Mitchell _v._ Clark, 110 U. S., 633 (1884) from which the
quotation is taken.

[203] This raises the whole question of national sovereignty.

[204] Amendment V.; XIV.

[205] Missouri Pacific Ry. _v._ Nebraska, 164 U. S., 403 (1896).

[206] Pennoyer _v._ Neff, 95 U. S., 714 (1877); Arndt _v._ Griggs, 134
U. S., 316 (1890).

[207] Cunnius _v._ Reading School District, 198 U. S., 458 (1905),
sustaining a Pennsylvania statute that provided for administration upon
estates of persons presumed to be dead by reason of long absence from
the State. Mattingly _v._ District of Columbia, 97 U. S., 687 (1878);
that which a State Legislature may have dispensed with by a prior
statute it may dispense with by a subsequent one; an irregularity or
defect which might be made immaterial by prior law, the Legislature has
power to make immaterial by a subsequent law. Cooley, Constitutional
Limitations, 371.

[208] License Cases, 5 Howard, 588.

[209] Bartemeyer _v._ Iowa, 18 Wallace, 129.

[210] Foster _v._ Kansas, 112 U. S., 201.

[211] Mugler _v._ Kansas, 123 U. S., 623 (1887).

[212] _Idem._

[213] Amendment V.

[214] Pumpelly _v._ Green Bay Co., 13 Wallace, 166 (1871).

[215] _Idem._

[216] Preceding case and Central Bridge Corporation _v._ City of
Lowell, Gray (Mass.), 474 (1855).

[217] Pierce _v._ Drew, 136 Mass., 75 (1883). The case grew out of
plaintiff’s claim for damages because the town had granted a telegraph
company the right to erect its poles, wires, etc., along the highway
abutting plaintiff’s land. The highway being land in public use,
plaintiff claimed indirect or consequential damages because of the
erection of the poles, wires, etc., of the duly franchised telegraph
company. Plaintiff’s complaint was (_inter alia_) that said poles,
wires, etc., disfigured and depreciated his property. See also Bedford
_v._ U. S., 192 U. S., 217 (1904); the principle therein further
examined.

[218] Kohl _v._ United States, 91 U. S., 367 (1875).

[219] Kohl _v._ United States, 91 U. S., 367 (1875).

[220] Art. i., 2: 5; 3: 6.

[221] Compare Art. i., 6: 1, 2; 9: 8; Art. ii., 1: 1; Art., 5, 8;
“officer” in Art. ii., 2: 1,2; Art. ii., 4: 1; “offices” in Art.
iii., 1: 1; vi., 3. There is every reason that the framers of the
Constitution used words with profound discernment and discriminating
care.

[222] Art. ii., 2: 1.

[223] _Id._ i., 8: 11.

[224] _Id._ i., 7: 2.

[225] Constitution of Pennsylvania, 1873, iv., 16.

[226] Art. ii., 2: 2.

[227] _Id._ _The Federalist_, No. lxxv.

[228] Art. ii., 2: 2.

[229] _Id._, 2: 1.

[230] July (14?), 1864. Lincoln’s _Works_ (Century Ed.) i., 548.

[231] _In re_ Neagle, 135 U. S., 1 (1889).

[232] Spaulding _v._ Vilas, 161 U. S., 483; U. S. _v._ Windom, 137
U. S., 636; U. S. _v._ Blaine, 139 U. S., 306. Marbury _v._ Madison,
1 Cranch, 137; Kendall _v._ U. S., 12 Peters, 524; U. S. _v._ Black,
128 U. S., 40; Mississippi _v._ Johnson, 4 Wallace, 475; Georgia _v._
Stanton, 6 Wallace, 57.

[233] _Ex parte_ Garland, 4 Wallace, 333 (1886).

[234] Art. i., 3: 6.

[235] _Id._, 3: 4, 5.

[236] Notes of conversation, etc., C. E., Stevens, _Sources of the
Constitution of the United States_, 169.

[237] _Id._, 168.

[238] Mississippi _v._ Johnson, 4 Wallace, 475 (1866).

[239] _Idem._

[240] Mississippi _v._ Johnson, 4 Wallace, 475 (1866).

[241] Many cases; see State _ex rel._ _v._ Stone, 120 Missouri, 428
(1894), in which most of the cases are cited. But _mandamus_ will issue
to an appointee of the executive, a ministerial officer, to perform a
ministerial act. U. S. _ex rel._ Daly, 28 App. D. C., 552; 35 Wash. Law
Rep., 81; Garfield _v._ U. S. _ex rel._ Frost, 30 App. D. C., 165; 35
Wash. Law Rep., 771; Griffin _v._ U. S., _ex rel._ Le Cuyer, 30 App.
D. C., 291; 36 Wash. Law Rep., 103; Drake _v._ U. S., _ex rel._ Bates,
30 App. D. C., 312; 36 Wash. Law Rep., 140; U. S. _ex rel._ Newcomb
Motor Co., 30 App. D. C., 464; 36 Wash. Law Rep., 150; also 36 Wash.
Law Rep., 681. Also U. S. _ex rel._ _v._ Black, 128 U. S., 40 (1888).

[242] United States _ex rel._ _v._ Black, 128 U. S., 40; and see the
cases cited in preceding note.

[243] Art. iii., 1: 1.

[244] For the history of this amendment see the author’s
_Constitutional History of the United States_, ii., 264–290.

[245] See Iredell’s dissenting opinion in Chisholm _v._ Georgia, 2
Dallas 419 (1793).

[246] _The Federalist_, No. xvi.

[247] Art. iii., 2: 1; Amendment XI.

[248] No. lxxx.

[249] _In re_ Neagle, 135 U.S., 1 (1889).

[250] _The Federalist_, No. lxxx.

[251] _Id._ For example, were the Vice-President to preside over the
Senate sitting as a Court of Impeachment.

[252] _The Federalist_, _id._

[253] _The Federalist_, _id._

[254] Robertson _v._ Cease, 97 U. S., 646.

[255] Art. iii., 2: 2.

[256] Marbury _v._ Madison, 1 Cranch, 174.

[257] Cohens _v._ Virginia, 6 Wheaton, 414 (1821).

[258] _Idem._

[259] So Congress has denied such jurisdiction to State courts,—Revised
Statutes, U. S., Sec. 687.

[260] Davis _v._ Packard, 7 Peters, 276; Börs _v._ Preston, in U. S.,
252 (1884).

[261] Cohens _v._ Virginia, _supra_.

[262] This power has been discussed in the preceding Chapters on
Sovereignty, Legislation, Commerce, Taxation, Contracts, etc. See index.

[263] Bank of Commerce _v._ New York City, 2 Black, 620 (1862).

[264] Marbury _v._ Madison, 1 Cranch, 137 (1803).

[265] The relation of the United States to the State judiciary; the
subject of concurrent (State and federal) judicial jurisdiction, is
examined by Hamilton in _The Federalist_, Nos. lxxviii-lxxxiii. See
also Martin _v._ Hunter’s Lessee, 1 Wheaton, 304 (1816).

[266] Hepburn _v._ Ellzey, 2 Cranch, 445 (1805).

[267] Art. iii.

[268] United States _v._ Freight Association, 166 U. S., 290, citing
many cases.

[269] American Insurance Company _v._ Cantor, 1 Peters, 542.

[270] Luther _v._ Borden, 7 Howard, 1 (1848).

[271] The whole subject of the American judiciary is largely technical
and can be known only through intimate knowledge of the _Reports_,
of the _Statutes at Large_, and familiarity with _practice_. In the
present chapter the _essentials of the law_ of judicial procedure are
the immediate subject.

[272] Marbury, _v._ Madison, 1 Cranch, 163.

[273] Marbury _v._ Madison, 1 Cranch, 176–180.

[274] All of Marshall’s decisions rest on the principle, thus set
forth, and it remains fundamental in America, applying alike in the
States and in the United States.

[275] The principle is examined in State _ex rel._ _v._ Stone, 120
Missouri, 428 (1894). Also in Luther _v._ Borden, 7 Howard, 1 (1848).

[276] See Constitution of Massachusetts, Judiciary, III.

[277] _Political Science and Constitutional Law_, J. W. Burgess, ii.,
365; “I do not hesitate to call the governmental system of the United
States the aristocracy of the robe; and I do not hesitate to pronounce
this the truest aristocracy for the purposes of government which the
world has yet produced.” _Id._

[278] United States _v._ Lee, 106 U. S., 196 (1882).

[279] Case of Supervisors of Elections, 114 Mass., 247 (1873); the
quotation (in the decision) is from the Constitution of Massachusetts,
1780, Part I, xxx. “The Government of the United States has been
emphatically termed a government of laws, and not of men.” Marbury _v._
Madison, 1 Cranch, 163.

[280] State _ex rel._ _v._ Simons, 32 Minn., 540 (1884). _Ex parte_
Griffiths, 118 Indiana, 83 (1889).

[281] _Idem._

[282] Harwood _v._ Wentforth, 162 U. S., 547 (1896).

[283] Osborn _v._ Bank of the United States, 9 Wheaton, 738 (1824).

[284] Osborn _v._ Bank of the United States, 9 Wheaton, 738 (1824).

[285] Many cases; see Southern Pacific Railroad Co. _v._ California,
118 U. S., 109 (1866); Beck _v._ Perkins, 139 U. S., 628 (1891).

[286] Börs _v._ Preston, 111 U. S., 252. (1884).

[287] The steamboat _Magnolia_, 20 Howard, 296 (1857).

[288] _Ex parte_ Siebold, 100 U. S., 37 (1879). Thus canals are
highways of commerce and subject to “regulation” by Congress. The
Robert W. Parsons, 191 U. S., 17 (1903); _Ex parte_ Boyer, 109 U. S.,
629 (1884).

[289] Stanley _v._ Schwalby, 162 U. S., 255 (1896), where the cases are
cited.

[290] Cohens _v._ Virginia, 6 Wheaton, 414 (1821).

[291] United States _v._ Texas, 143 U. S., 621 (1892). The doctrine
also in South Dakota _v._ North Dakota, 192 U. S., 286 (1904).

[292] Ames _v._ Kansas, 111 U. S., 449 (1884); the “party” may be a
State (including its corporate subdivisions), or a natural person (or
persons), or an artificial person (a corporation).

[293] Wisconsin _v._ Pelican Insurance Co., 127 U. S., 265 (1888).

[294] Hans _v._ Louisiana, 134 U. S., 1 (1890). The history of the
Eleventh Amendment includes the entire record as to suits against
States. The principles involved may be found as discussed by Hamilton
in _The Federalist_, No. lxxxi; by Marshall, Madison, Mason, and
Henry, in the Virginia Ratifying Convention, 3 Elliott’s Debates; in
Mr. Justice Iredell’s dissenting opinion in Chisholm _v._ Georgia, 2
Dallas, 419; and a special history of the Amendment in the author’s
_Constitutional History of the United States_, ii., 264–293. The
Eleventh Amendment overruled the decision in the Chisholm case. As
to suits against a State by its own citizens see Railroad Co. _v._
Tennessee, 101 U. S., 337 (1879). The principle here is that the
sovereign may assent to being sued by its own citizens,—an assent
declared by the State constitution, but available by the citizen only
according to acts of the Legislature. The privilege (if it exists)
is statutory. But suit against an officer, or agent of the State,—or
of the United States, is not barred if that officer exercises a
ministerial function; such suit is not a suit against the sovereign
(United States, or State). See U. S. _v._ Lee, 106 U. S., 196 (1882);
Cunningham _v._ Macon & Brunswick R. R. Co., 109 U. S., 446 (1883).

[295] Judiciary Act, 1789, 1888 (and so amended.)

[296] The Ohio and Mississippi R. R. Co. _v._ Wheeler, 1 Black, 286
(1861). Hooe _v._ Jamieson, 166 U. S., 395 (1897).

[297] Martin _v._ Hunter’s Lessee, 1 Wheaton, 304 (1816); opinion by
Mr. Justice Story; this case remains the leading case on the appellate
jurisdiction of federal courts. The appellate jurisdiction of the
courts is discussed by Marshall in Marbury _v._ Madison: “The essential
criterion of appellate jurisdiction is that it revises and corrects the
proceedings in a cause already instituted, and does not create that
cause,” _Ex parte_, Watkins, 7 Peters, 568 (1833).

[298] Gaines _v._ Fuentes, 92 U. S., 10 (1875). Security Mutual Life
Insurance Company _v._ Prewitt, 202 U. S., 246 (1906).

[299] Whitten _v._ Tomlinson, 160 U. S., 231 (1895). But as to
conflicting jurisdiction of State and federal courts see Riggs _v._
Johnson County, 6 Wallace, 166 (1867).

[300] Green _v._ Neal’s Lessee, 6 Peters, 291 (1832).

[301] _Idem._ The question is examined in Pana _v._ Bowler, 107 U. S.,
529 (1882). Gelpoke _v._ City of Dubuque, 1 Wallace, 175 (1863).

[302] Burgess _v._ Seligman, 107 U. S., 20 (1883). Bucher _v._ Cheshire
R. R. Co., 125 U. S., 555 (1888).

[303] Smith _v._ Alabama, 124 U. S., 465 (1888). Western Union
Telegraph Company _v._ Call Publishing Company, 181 U. S., 92 (1901).

[304] Art. i., 8: 17; 9: 6, 8; 10: 1, 2, 3; Art. iii.,2: 1, 2, 3; Art.
iv., 1: 1; 2: 1, 2, 3; 3: 1, 2; 4: 1; Art. v., Art. vi., 2, 3; Art.
vii., 1; Amendments VI., X., XI., XIII., XIV., XV., XVI., XVII.

[305] Thompson _v._ Whitman, 18 Wallace, 457 (1873).

[306] McElmayle _v._ Cohen, 13 Peters, 312. Story, _Commentaries on the
Constitution_, 1313.

[307] Williamson _v._ Berry, 8 Howard, 540.

[308] Thompson _v._ Whitman, 18 Wallace, 457.

[309] Hanley _v._ Donaghue, 116 U. S., 1 (1885).

[310] Hanley _v._ Donaghue, 116 U. S., 1 (1885).

[311] _Idem._

[312] Talbot _v._ Seeman, 1 Cranch, 38 (1801). The principle here
declared is not to be applied strictly in extradition cases, whether
between the several States or between the United States and another
nation.

[313] Buckner _v._ Finley, 2 Peters, 590 (1829).

[314] Buckner _v._ Finley, 2 Peters, 590 (1829).

[315] Art. iii., 2: 1.

[316] Paul _v._ Virginia, 8 Wallace, 168 (1868).

[317] _Idem._

[318] Ward _v._ Maryland, 12 Wallace, 418.

[319] Slaughter House Cases, 16 Wallace, 77 (1872). Blake _v._ McClung,
172 U. S., 239 (1898).

[320] Blake _v._ McClung, _supra_.

[321] _Ex parte_ Reggel, 114 U. S., 642 (1885). Pennoyer _v._ Neff, 95
U. S., 714 (1877).

[322] Art. iv., 2: 2. Revised Statutes, §§ 5278, 5279.

[323] _Ex parte_ Reggel, _supra_.

[324] Lascelles _v._ Georgia, 148 U. S., 537 (1893).

[325] Art. i., 10: 1.

[326] Lascelles _v._ Georgia, _supra_. In international law the right
of extradition does not include fugitives for _political_ offenses.
This exemption is an incident of sovereignty.

[327] Consult United States _v._ Rauscher, 119 U. S., 407.

[328] Lascelles _v._ Georgia, _supra_.

[329] Luther _v._ Borden, 7 Howard, 1 (1848).

[330] _Idem._

[331] Luther _v._ Borden, 7 Howard, 1 (1848).

[332] Art. iv., 4: 1.

[333] Minor _v._ Happersett, 21 Wallace, 162 (1874).

[334] _Idem._

[335] Texas _v._ White, 7 Wallace, 700 (1868).

[336] There are many cases expository of this principle: McCulloch
_v._ Maryland, 4 Wheaton, 316; Barron _v._ Baltimore, 7 Peters, 243;
Slaughter House Cases, 16 Wallace, 36; United States _v._ Cruikshank,
92 U. S., 542; _Ex parte_ Siebold, 100 U. S., 371; Fong Yue Ting _v._
U. S., 149 U. S., 698; Legal Tender Cases, 12 Wallace, 457.

[337] Art. iv., 3: 1.

[338] Art. iii.; Art. iv. § 10; Amendments VI., X., XI., XIII., XIV.,
XV., XVII., and doubtless also in the matter of federal elections
(election of members of the House of Representatives, and of United
States Senators) as by Wiley _v._ Sinkler, 179 U. S., 58; _Ex parte_
Yarbrough, 110 U. S., 651, and in all other Federal relations.

[339] Sands _v._ Manistee Improvement Company, 123 U. S., 288 (1887).

[340] If admitted by Proclamation of the President (and so Congress may
provide) conformity to conditions imposed is duly announced by him. The
enabling acts since 1789 vary in content. They are reprinted in _The
Federal and State Constitutions, Colonial Charters, and other Organic
Laws of the States, Territories and Colonies Forming the United States
of America_. 7 vols. Washington, Government Printing Office 1909.

[341] The provision of the Ohio constitution of 1912 limiting the
right to vote to “white male citizens of the United States” (Ohio,
Art. v., § 1) citizens with the Fifteenth Amendment of the national
Constitution. The power of the Judiciary of the United States to
declare constitutions and laws that are repugnant to the Constitution
of the United States unconstitutional, null, and void is discussed in
the preceding chapter.

[342] Art. iv., 3: 2.

[343] American Insurance Company _v._ Canter, 1 Peters, 551 (1828).
National Bank _v._ County of Yankton, 101 U. S., 129 (1879).

[344] National Bank _v._ County of Yankton, _supra_. But all rights
commonly known as _fundamental_ do not work as limitations of the
power of Congress to govern Territories or “outlying possessions”; see
Downes _v._ Bidwell, 182 U. S., 244 (1901). Until this decision these
_fundamental_ rights were construed as _limitations_ of the power of
Congress in its government of Territories; see Callan _v._ Wilson, 127
U. S., 540 (1888). Thompson _v._ Utah, 170 U. S., 343 (1898).

[345] Downes _v._ Bidwell, _supra_, and supporting cases.

[346] Barron _v._ Baltimore, 7 Peters, 243 (1833).

[347] Downes _v._ Bidwell, _supra_.

[348] _Idem._ In Brown _v._ Walker, 161 U. S., 591 (1896), (_i. e._,
five years before the decision in Downes _v._ Bidwell), the Court
declared: “The object of the first eight amendments to the Constitution
was to incorporate into the fundamental law of the land certain
principles of natural justice which had become permanently fixed in the
jurisprudence of the mother country, etc.”

[349] The dissenting opinions in Downes _v._ Bidwell should be read;
powerful as they are, they are _not_ the opinion of the Court and _do
not declare what the law is_.

[350] Cohens _v._ Virginia, 6 Wheaton, 414 (1821).

[351] The power of Congress over territory incorporated into the
United States,—that is, over territory over which the Constitution has
been extended by Congress is limited by the Constitution: Thompson
_v._ Utah, 170 U. S., 343 (1898). Rasmussen _v._ United States, 197
U. S., 516 (1905); but over territory _not so incorporated_, see
Hawaii _v._ Mankichi, 190 U. S., 197 (1903); Dorr _v._ U. S., 195
U. S., 138 (1904). The decisions support the doctrine that once the
Constitution has been extended over territory, it cannot be withdrawn
(Downes _v._ Bidwell) and consequently, all the limitations which by
the Constitution affect Congress operate as limitations of its power
over the territory, and therefore operate as fundamental rights and
privileges of the inhabitants of such territory.

[352] So throughout _The Federalist_, and notably in Nos. xliv., xlv.,
li.

[353] But note the Sixteenth Amendment.

[354] First Inaugural. _Works_ (Century Ed.), ii., 7.

[355] Art. ii., 1: 2; Amendment XII.

[356] In 1787 distrust of the people, among the framers of the
Constitution, explains the constitutional provision. James Wilson urged
election of the President by popular vote. South Carolina in 1860 was
the last State to appoint presidential electors by its Legislature.
There is widespread belief in America now that the President should be
elected by direct popular vote, as are Congressmen and United States
Senators. At present the “electoral vote” is 531; the person receiving
the majority of these 531 votes is President of the United States.
By American laws there are upwards of 20,000,000 voters; by American
constitutional law, the person receiving 266 “electoral” votes is
President.

[357] Art. ii., 2: 1.

[358] _Id._ 3.

[359] Cincinnati, Wilmington, etc., R. R. Co. _v._ Commissioners, 1
Ohio St., 88; and see a full discussion of the issue in Field _v._
Clark, 143 U. S., 649 (1892).

Thus technically, the veto power is not a legislative but an executive
power, though it is common to speak of the participation of the
executive in legislation.

[360] Art. i., 2: 5; 3: 6. The subject is discussed in Chapters VII and
VIII.

[361] Art. i., 8: 1.

[362] _Id._, 8: 12. In practice appropriations are for one year; if the
purpose for which the appropriation was made is not effected within the
year, the appropriation ceases to be available, unless to the contrary
as declared in the law; but an unexpended appropriation may be made
available (sometimes) by resolution of Congress, or even of the branch
of Congress specially concerned.

[363] Art. i., 8: 16.

[364] _Id._, 9: 3. The limitation as to prohibition of the slave trade
was temporary. _Id._, 9: 1.

[365] _Id._, 9: 5.

[366] _Id._, 9: 6.

[367] Art. i., 9: 8.

[368] _Id._, 5: 4.

[369] _Id._, 7: 1.

[370] _Id._, 6: 2. This is a limitation of the freedom of choice
of certain individuals rather than a limitation of Congress as a
legislative body; but what is forbidden to a member of Congress cannot
be made lawful for him by act of Congress; thus the limitation may
be one of legislation. The provision (Art. i., 9: 2) concerning the
suspension of the writ of _habeas corpus_ is not a limitation of the
power of Congress, for Congress is the judge whether public safety
requires the suspension of the writ.

[371] Art. iii., 3: 1, 2.

[372] Art. iii., 3: 2; _Id._ i., 9: 3.

[373] _Id._ iv., 3: 1.

[374] _Id._, 3: 2.

[375] The first ten Amendments were demanded in 1787–8 as specific
limitations of legislative power of the United States, and as a
protection of fundamental, original rights of the people.

[376] The history of these Amendments in the author’s _Constitutional
History of the United States_, ii., 199–263.

[377] First Amendment.

[378] Amendments II., III., IV., V.

[379] See the Ninth Amendment.

[380] It will be noticed that this Amendment is not a limitation of the
States; it applies to the United States.

[381] This is brought out by Marshall in Marbury _v._ Madison, 1
Cranch, 137,—the corner-stone of many later decisions.

[382] The limitations of the States by the Constitution of the United
States have already been discussed in earlier chapters. Examination
of present State constitutions will disclose existing limitations
prescribed by the sovereignty, the people of the State.

[383] Art. i., 4: 1. The right to vote for members of Congress has its
foundation in the Constitution of the United States, not in that of
any State: Wiley _v._ Sinkler, 179 U. S., 58; _Ex parte_ Yarbrough,
110 U. S., 651. This means a limitation of State powers,—as some might
say; in strictness, it means a definition of federal powers; the
jurisdiction of a State cannot exclude the jurisdiction of the United
States.

[384] _Id._, 8: 17.

[385] No. lxii. (The authorship, strictly speaking, is uncertain, being
assigned “to Hamilton _or_ Madison.”)

[386] Art. i., 10: 1.

[387] Art. i., 10: 2, 3.

[388] _Id._ ii., 2: 1.

[389] _Id._ iii., 2: 2.

[390] Amendment XI.

[391] Amendment XIII.

[392] Amendment XIV.

[393] _Id._

[394] Art. i., 2: 3.

[395] _Id._ v.

[396] _Id._ i., 2: 4. Amendment XVII., 2.

[397] Art. iv., 1: 2.

[398] Amendment XII.

[399] Art. ii., 2: 2.

[400] _Id._ iv., 2: 1.

[401] _Id._, 4. But the Governor cannot so apply if the Legislature is
in session. The reason here is that the people of the State have fully
empowered their representatives in the Legislature “to see that the
Commonwealth suffers no harm.”

[402] Art. v.

[403] The Sixteenth Amendment (income tax) bears most heavily on States
having large cities and a manufacturing population. It is possible that
States which would be but slightly affected by a proposed amendment,
might favor and ratify it; to avoid this possible discrimination, the
suggestion has been made that in such a case the power of a State
to ratify or to oppose ratification should be in proportion to its
interests as affected by the proposed amendment. To this suggestion
answer has been made that the Constitution is national, not local, in
purpose and operation.

[404] Art. vi., 2, 3.

[405] Tenth Amendment.

[406] Ninth Amendment.

[407] The first quotation is from Downes _v._ Bidwell, 182 U. S., 244
(1901); the second, from Gibbons _v._ Ogden, 9 Wheaton, 235 (1824),
decision by Marshall. The application of the principle laid down
by Chief Justice Marshall in 1824 and elaborated, at times, by the
Supreme Court,—as in 1901,—was discussed by the eminent jurist, Thomas
M. Cooley, in a brief address to the North Dakota Constitutional
Convention, July 17, 1889. At that time he was Chairman of the
Interstate Commerce Commission. “Don’t, in your constitution-making,
legislate too much. In your constitution you are tying the hands
of the people. Don’t do that to any such extent as to prevent the
Legislature, hereafter, from meeting all evils that may be within the
reach of proper legislation. Leave something for them. _Take care to
put proper restrictions upon them_, but at the same time leave what
properly belongs to the field of legislation to the Legislature of
the future. _You have got to trust somebody in the future and it is
right and proper that each department of government should be trusted
to perform its legitimate functions._” Proceedings and Debates of the
First Constitutional Convention of North Dakota, Assembled in the City
of Bismarck, July 4 to August 17, 1889, p. 67. (Italization in text,
not in original.)

[408] Thirty-three States have an elective judiciary. In Maine, New
Hampshire, Massachusetts, Connecticut, Delaware, Mississippi, and New
Jersey, the Governor nominates and the Senate confirms judges; in Rhode
Island, Vermont, South Carolina, and Virginia, the Legislature elects
the judges; in Florida, the Governor appoints judges of the Superior
Courts and judges of the Supreme Court are elected by the people.

[409] Strictly executive functions are not within the jurisdiction of
courts of law. See the discussion in Chapter VII.

[410] Marbury _v._ Madison, 1 Cranch, 137 (1803).

[411] Art. vi., 2, 3.

[412] Chicago, etc., Ry. Co. _v._ Wellman, 143 U. S., 339 (1892); Frees
_v._ Ford, 6 New York, 176 (1852); Commonwealth _v._ McCloskey, 2 Rawle
(Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96.

[413] McCulloch _v._ Maryland, 4 Wheaton, 421 (1819).

[414] _Idem._, 423.

[415] No. lxxxiv.

[416] _Pennsylvania and the Federal Constitution_, McMaster and Stone,
254. Both Hamilton and Wilson were overruled by the public demand for a
Bill of Rights, and the first ten Amendments were speedily added to the
Constitution.

[417] Ogden _v._ Saunders, 12 Wheaton, 332 (1827); Martin _v._ Hunter’s
Lessee, 1 Wheaton, 304 (1816); United States _v._ Aaron Burr, Cotton’s
_Constitutional Opinions of John Marshall_, 1.100; Sturgis _v._
Crowningshield, 4 Wheaton, 122 (1819); Cohens _v._ Virginia, 6 Wheaton,
264 (1821); Cooley, _Constitutional Limitations_, 6th Edition, 204.

[418] Norton _v._ Shelby County, 118 U. S., 425.

[419] The relation of the judiciary to ministerial officers has already
been examined; see Chapters VII and VIII. But see in this connection,
the Secretary _v._ McGarrahan, 9 Wallace, 298; United States _v._
Black, 128 U. S., 40; United States _v._ Windom, 137 U. S., 636; United
States _v._ Blaine, 139 U. S., 306; State _ex rel._ _v._ Stone, 120
Missouri, 428.

[420] Pennsylvania, 1873, Art. iv. §16. This provision does not empower
the Governor to cut down an item, but in practice, it is so construed.

[421] As sovereignty is a unit, any examination of particular
aspects of it must be but a partial examination of its operations.
The Constitution of the United States is a unit, in so far as the
sovereignty,—the people of the United States,—have made it the
expression of their plan of government. It follows that close
examination of any department or feature of the Constitution as a plan
of government discloses that feature in relation with other features;
the Constitution is an expression of a mass of relations. Thus it is
that a decision of the Supreme Court may relate to several matters,
seemingly without relation, but necessarily co-related. The present
chapter on _The Law of Limitations_ discusses executive, legislative,
and judiciary and the principles of government by which it acts. _The
entire subject of American constitutional law must be viewed as a
whole._ See Pollock _v._ Farmers’ Loan and Trust Co., 158 U. S., 601
(1895); Field _v._ Clark, 143 U. S., 649 (1892). Also _The Federalist_,
Nos. xliv.-lvi.

[422] Art. ii., 2: 2.

[423] American Insurance Company _v._ Canter, 1 Peters, 511.

[424] Amendments IX., X.

[425] Art. vi., 3. The ratifying conventions, 1788–9, formulated in the
aggregate some two hundred amendments in the nature of provisions in
a Bill of Rights. These, reduced to twelve, were presented by Madison
(May 25, 1789) in the House of Representatives and were duly submitted
to the States for ratification. Ten were ratified (1790).

[426] Reynolds _v._ United States, 98 U. S., 145 (1878).

[427] Davis _v._ Beason, 133 U. S., 333.

[428] Cooley, _Principles of Constitutional Law_, 3d Edition, 226. As
to “Readings from the Bible” in public schools, _see_ Pfeiffer _v._
Board of Education, 77 N. W. Reporter, 250 (1898); State _ex rel._
Weiss _v._ District Board, 76 Wisconsin, 177 (1890).

[429] People _v._ Ruggles, 8 Johns (N. Y.), 290. The exemption from
taxation of property belonging to religious bodies (corporations) is
not because of any fundamental right of such bodies to exemption, but
because of the will of the legislature. It is a matter of policy.

[430] The winning of these and other fundamental rights is largely the
subject of English constitutional history.

[431] So expressed in many State constitutions, as Pennsylvania, 1873,
i., 7.

[432] A right fully established at the trial of the Seven Bishops, 1688.

[433] United States _v._ Cruikshank, 92 U. S., 542 (1875).

[434] West _v._ Cabell, 153 U. S., 78; Weeks _v._ U. S., 232 U. S.,
383; _Ex parte_ Milligan, 4 Wallace, 2; U. S. _v._ Louisville &
Nashville R.R. Co., 236 U. S., 318; U. S. _v._ Boyd, 116 U. S., 616
(the leading case), and Cotting _v._ Kansas City Stock Yards Co., 183
U. S., 79 (1901).

[435] Paul _v._ Virginia, 8 Wallace, 168 (1808); Blake _v._ McClung,
172 U. S., 239 (1898); Lockner _v._ New York, 198 U. S., 45 (1905).

[436] The rights of the person, and his or her rights of property are
the essential subject of the Fourth, Fifth, Sixth, Seventh, and Eighth
Amendments. Similar provisions are included in the Bills of Rights in
the State constitutions.

[437] Corfield _v._ Coryell, 4 Washington C. C., 371; Slaughter House
Cases 16 Wallace, 36.

[438] This act of sovereignty is so rare as almost to be unknown. In
America the act takes the form of an amendment to the Constitution.

[439] The forty-eight States have had, in the aggregate, some one
hundred and twenty-five constitutions, and to these have been added
some three hundred amendments (1776–1917). The federal Constitution has
been amended seventeen times (1787–1913).

[440] Downes _v._ Bidwell, 182 U. S., 244 (1901).

[441] Pfeiffer _v._ Board of Education of the City of Detroit, 77 N. W.
Rep., 250 (1898).

[442] Reynolds _v._ United States, 89 U. S., 145 (1878).

[443] Boyd _v._ United States, 116 U. S., 616 (1886). (Important
historical data given in this case.)

[444] Robertson _v._ Baldwin, 165 U. S., 275 (1897).

[445] Cooley, _Constitutional Limitations_, 353; _Ex parte_ Wall,
107 U. S., 265 (1883). Murray’s Lessee _v._ The Hoboken Land and
Improvement Company, 18 Howard, 272 (1855), considered the leading case.

[446] Hurtado _v._ California, 110 U. S., 516 (1884).

[447] Yick Wo _v._ Hopkins (San Francisco Laundry Cases), 118 U. S.,
356 (1886).

[448] Pembina Mining Company _v._ Pennsylvania, 125 U. S., 181 (1888).
Barbier _v._ Connolly, 113 U. S., 27 (1885). Holden _v._ Hardy, 169
U. S., 366 (1898). But an act making it a criminal offense to employ
a female in any clothing factory more than forty-eight hours in any
one week violates the Fourteenth Amendment as violating the right of
contract and being class legislation: Ritchie _v._ State, 155 Illinois,
98 (1895).

[449] Dent _v._ West Virginia, 129 U. S., 114 (1889). And cases cited.

[450] Barbier _v._ Connolly, _supra_. Mugler _v._ Kansas, 123 U. S.,
623 (1887). The power to regulate, that is, the jurisdiction of the
police power of the State, as decided in Munn _v._ Illinois, 94 U. S.,
113 (1876), includes the power “to provide a maximum charge for the
storage and handling of grain” in a warehouse privately owned. This
is settled law, but careful reading should be made of the dissenting
opinions in this case: Budd _v._ New York, 143 U. S., 517 (1892),
sustaining Munn _v._ Illinois, with strong dissenting opinions; Spring
Valley Water Works _v._ Schottler, 110 U. S., 347 (1884) sustaining
Munn _v._ Illinois, with strong dissenting opinions. The economic
question here is whether the State can fix prices, wages, compensation,
hours of labor, etc. In this connection examine Lockner _v._ New York,
198 U. S., 45 (1905), sustaining a law of New York State making it
a penal offense for any employer to require and permit any employee
to work for him more than sixty hours in any one week. The law was
sustained as a constitutional exercise by the State of its police
power; but see dissenting opinions. The _per contra_ was “the right of
the individual to liberty of person and freedom of contract.”

[451] Capital Traction Company _v._ Hof, 174 U. S., 1 (1899). Many
cases cited and the history of trial by jury given.

[452] Mr. Justice Matthews in Yick Wo _v._ Hopkins, 118 U. S., 356
(1886).

[453] Amendment XIV., July 28, 1868. It will be noticed here that the
word “territory” is not used.

[454] Slaughter House Cases, 16 Wallace, 36 (1872).

[455] Amendment XIV.

[456] Art. iv., 2: 1.

[457] See p. 150.

[458] Canfield _v._ Coryell, 4 Washington, C. C., 371, 380; Paul _v._
Virginia, 8 Wallace, 180, and see pp. 191–211 of the present volume.

[459] Slaughter House Cases, _supra_.

[460] Crandall _v._ Nevada, 6 Wallace, 36 (1867).

[461] Slaughter House Cases, _supra_. (Some additional rights are
secured citizens of the United States by Amendment XIV., §2; and by
Amendments XIII. and XV.)

[462] Minor _v._ Happersett, 21 Wallace, 162 (1874).

[463] Art. iv., 4.

[464] Minor _v._ Happersett, _supra_. (But see _Ex parte_ Yarbrough,
110 U. S., 651.)

[465] These qualifications, in the aggregate, have been of age, sex,
residence, religion, property, race, and tax-paying. See the provisions
in the State constitutions in _Charters and Constitutions_, 7 vols.,
U. S. Government Printing Office, 1909; and a detailed account of
these early qualifications (1776–1850) in the author’s _Constitutional
History of the American People_, i., ch. iii.

[466] Art. i., 2: 1; Amendment XVII.

[467] _Ex parte_ Yarbrough, 110 U. S., 651, 653; Wiley _v._ Sinkler,
179 U. S., 58 (1900).

[468] United States _v._ Cruikshank, 92 U. S., 542 (1875).

[469] _Idem._

[470] Civil Rights Cases, 109 U. S., 3 (1883).

[471] _Idem._

[472] _Ex parte_, Siebold, 100 U. S., 371 (1879).

[473] Strauder _v._ West Virginia, 100 U. S., 303 (1879).

[474] Civil Rights Cases, 109 U. S., 3 (1883).

[475] 14 Statutes at Large, 27, Ch. 31; Enforcement Act, May 31, 1870,
16 Statutes at Large, 140, Ch. 114.

[476] Civil Rights Cases, _supra_.

[477] That is, violating Amendments VI. and XIV.

[478] Hurtado _v._ California, 110 U. S., 516 (1884).

[479] “The trial by jury in civil cases guaranteed by the Seventh
Amendment (Walker _v._ Sauvinet, 92 U. S., 90) and the right to bear
arms guaranteed by the Second Amendment (Presser _v._ Illinois,
116 U. S., 252) have been distinctly held not to be privileges and
immunities of citizens of the United States against abridgment by the
States, and in effect the same decision was made in respect of the
guarantee against prosecution, except by indictment of a grand jury in
the Fifth Amendment (Hurtado _v._ California, 110 U. S., 516) and with
respect to the right to be confronted with witnesses, contained in the
Sixth Amendment (West _v._ Louisiana, 194 U. S., 258). In Maxwell _v._
Dow, 176 U. S., 606, when the plaintiff in error had been convicted
in a State court of a felony upon an information, and by a jury of
eight persons, it was held that the indictment made indispensable by
the Fifth Amendment, and the trial by jury guaranteed by the Sixth
Amendment, were not privileges and immunities of citizens of the United
States, as those words were used in the Fourteenth Amendment....
We conclude, therefore, that the exemption from compulsory
self-incrimination (‘see Amendment V.’) is not a privilege or immunity
of national citizenship guaranteed by this clause (‘the first clause’)
of the Fourteenth Amendment against abridgment by the States.” Twining
_v._ State of New Jersey, 211 U. S., 78 (1908).

[480] United States _v._ Wong Kim Ark, 169 U. S., 649 (1898).

[481] Art. i., 8: 4.

[482] United States _v._ Villato, 2 Dallas, 373; Nishimura Ekin _v._
U. S., 142 U. S., 651; Luria _v._ U. S., 231 U. S., 9.

[483] _Ex parte_ Griffiths, 118 Indiana, 83 (1889), citing many cases,
(_inter alia_) Hayburn’s Case, 2 Dallas, 409, n.; United States _v._
Ferrera, 13 Howard, 40, n.; United States _ex rel._ _v._ Duell, 172
U. S., 576 (1898), also to be consulted.

[484] United States _v._ Rodgers, 150 U. S., 249 (1893).

[485] Guinn and Beal _v._ United States, 238 U. S., 347 (1915).

[486] _Idem._

[487] _Idem._ and citing _Ex parte_ Yarbrough 110 U. S., 651 (already
considered in the present Chapter) and Neal _v._ Delaware, 103 U. S.,
370. The decisions of the Supreme Court do not conflict with a State
constitution that requires, as a qualification for voting, a literacy
test, or a religious test, or a property test, or indeed any test which
is not a discrimination on account of race color or previous condition
of servitude.

[488] Calder _v._ Bull, 3 Dallas, 386 (1798); Kring _v._ Missouri, 107
U. S., 221 (1882); Thompson _v._ Utah, 170 U. S., 343 (1898). All the
State constitutions forbid _ex post facto_ laws.

The right secured to the citizen by the constitutional inhibition of
_ex post facto_ legislation forms part of his, or her, privileges and
immunities; for though the inhibition cannot be said to be derived from
the common law,—and may be said to be essentially statutory, it has
become recognized as a fundamental right and of rank with any other
fundamental right.

[489] Hollinger _v._ Davis, 146 U. S., 314 (1892).

[490] _Idem._

[491] Boyd _v._ United States, 116 U. S., 616 (1886). The right covers
“persons, houses, papers, and effects.” Art. iv.

[492] Harris _v._ People, 128 Illinois, 585 (1889).

[493] Art. v., Act of February 11, 1893, Statutes at Large, 443; Brown
_v._ Walker, 161 U. S., 591 (1896).

[494] Amendment VI. Mattox _v._ United States, 156 U. S., 237 (1895).

[495] _Idem._

[496] In the original the clauses are not numbered, nor is there any
title to the document. It begins, “WE THE PEOPLE.”

[497] See Amendments XIII., XIV., XV., XVI.

[498] See Amendment XVII.

[499] See Amendment XII.

[500] See Amendment XI.

[501] See Amendments XIII., XIV., XV.

[502] The word, “the,” being interlined between the seventh and eighth
Lines of the first Page, The Word “Thirty” being partly written on an
Erazure in the fifteenth Line of the first Page, The Words “is tried”
being interlined between the thirty-second and thirty-third Lines
of the first Page and the Word “the” being interlined between the
forty-third and forty-fourth Lines of the second Page.

[503] New Jersey withdrew her consent to the ratification on March 27,
1868.

[504] Oregon withdrew her consent to the ratification October 15, 1868.

[505] Ohio withdrew her consent to the ratification in January, 1868.

[506] North Carolina, South Carolina, Georgia, and Virginia had
previously rejected the amendment.

[507] New York withdrew her consent to the ratification January 5, 1870.

[508] Ohio had previously rejected the amendment May 4, 1869.

[509] New Jersey had previously rejected the amendment.




Transcriber’s Notes


Punctuation and spelling were made consistent when a predominant
preference was found in this book; otherwise they were not changed.

Simple typographical errors were corrected; occasional unbalanced
quotation marks corrected.

Ambiguous hyphens at the ends of lines were retained; occurrences of
inconsistent hyphenation have not been changed.

Index not checked for proper alphabetization or correct page references.

Page 1: Duplicate book title removed by Transcriber.

Page 148: “and another nation” was printed as “notion”; changed here.





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