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the language, and read it as though the reservation of powers were made by the states and not to thein. The clause should be compared with the second of the Articles of Confederation, which reads : " Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not expressly delegated,” &c. The change of prepositions in the tenth amendment would apparently be a slight one, but it would be mighty in import and results. Powers are said to be reserved; and it is plain enough to whom the reservation is made, to the states and to the people. This provision, however, does not tell us by whom the reservation is made; that fact must be gathered from the history of the nation, from the whole tenor of the Constitution, from its entire scope and design, and from its preamble. The body which conferred portions of its powers upon the government which it had created, is alone capable of reserving the residuum to itself, or to any other body. This single political society which confers and which reserves is the people of the United States, the nation itself. By reading the two amendments together, this meaning is made plain. The ninth article speaks of rights retained by the people; the tenth, of powers reserved to the states. The former recognizes the people as the one source of all power, as they could not retain what they were not before possessed of; the latter speaks of some powers which had not been conferred by the people on its general government, as allotted to the states. The former points out the giver; the latter, the recipients.
I remark, in passing, that the term “ United States,” in the tenth amendment, plainly describes the government established by the Constitution, and not the political society which lies back of that organic law, and which was its author. The same term is often applied to both these subjects, although the Constitution generally uses the word “ people ” to designate the latter.
ġ 102. II. The Status of Citizenship. — The Constitution recognizes our nationality by assuming that the status of citizenship, and the consequent duty of allegiance, exist independently of that instrument. In this, the present organic law is ir
dold contrast with the Articles of Confederation. Were our government a mere federation of equal, sovereign states, united for certain purposes of administration, there could be no real nation and no citizenship. The status of the citizen had been clearly defined, and the word had attained a definite meaning, long before our fathers employed it in the Constitution. It implies a political society, - a nation, - of which the individual is a member, to which he owes allegiance, and which is bound to give him protection. Now, it is to be observed that, while the Constitution nowhere in terins defines the status of citizenship, or declares what persons shall be admitted thereto, it does assume its existence, and provide for all the consequences that flow from the relation; the general government has exclusive power to admit persons of foreign birth to that condition ; while the article in relation to treason recognizes the duty of allegiance, for the essence of the crime of treason is the violation of allegiance. The word “allegiance” is fruitful in meaning. Etymologically it is the binding of the citizen by a chain of duty to the body-politic of which he is a member. It therefore implies a nation and his own membership thereof. Senator Mason, of Virginia, and other partisans of state sovereignty, were strictly logical in asserting that they owed allegiance only to their own commonwealth, and not to the United States.
§ 103. III. The Proprietorship of Public Lands. — The Constitution recognizes our nationality in providing for the ownership by the United States of all new, unappropriated public lands within the borders of the states and territories.3 The King of Great Britain is said to be the ultimate owner of the soil, and is the proprietor of all the domain not allotted to private holders. The United States succeed to his title. During the Confederation, while the idea of nationality was obscured, the states separately ceded to the general government whatever title had been claimed by either of them to all unappropriated Western lands, and only retained the proprietorship of that within their immediate territorial limits. This title has been continued, and has been extended over all subi Art. III. Sec. III.
2 Art. IV. Sec. III. § 2.
sequent acquisitions by purchase or conquest. Nor does the ownership pass from the United States, and vest in a particular state, when the latter becomes organized as a separate commonwealth, throws off its territorial character, and is admitted as a state into the Union ; but the nation retains its property, and from it must all private purchasers derive their rights. This original and paramount dominion in the newly acquired soil which may be added to the territory of the country, is a high attribute of sovereignty, and indicates that the United States is an independent body-politic, and not a mere agent to carry on certain governmental acts.
$ 104. IV. The Legislative Powers. - The Constitution recognizes our nationality in the essential character of the legislative powers that are conferred upon Congress. It will be remembered that it is not the number, but the extent, of these powers which stamp them as national. The people have all powers; they may retain some dormant; they may delegate others to the general government; they may permit others to be exercised by the separate states. Now, it is evident that those which they have entrusted to their immediate agent - the general government, which represents the whole nation — are of a far higher class, more imbued with the essential attributes of sovereignty, than those which they have permitted to be exercised by the state governments, which represent local and partial communities. What are some of the more important of these powers which the Congress may wield and enforce against the individuals who compose the total aggregate?
$ 105. Those which are held exclusively by the United Ştates, or, in other words, which are denied to the separate states, are the following: The regulation of commerce; the admission to citizenship by naturalization ; the coining of money; the establishment of post-offices; the granting of patent and copy rights; the declaring of war; the raising and support of armies and navies, and the government of the same.
In addition, the Congress has unlimited power to lay taxes of all kinds, some to the exclusion of the states, as duties on imports ; others in connection with the states; with the further
prerogative that the taxing power of the general government is superior and paramount, and must first be satisfied before the local commonwealths can put into operation their subordinate function of taxation. Finally, the general government is to be the sole judge of what particular measures are fit, proper, and necessary in order to carry these general grants of power into practical execution. I have not here enumerated all of the legislative functions of the United States Congress, but only noticed those most important for the purposes of the present inquiry.
$ 106. The mere recital of these tells its own story. Can that political society possess any attribute of sovereignty, which is forbidden to wage offensive or defensive war, and thus to maintain its own existence; and which is unable to raise and support an army or navy; and which is deprived of the right to coin money; and which possesses no control over commerce; and which must exercise its power of taxation in subordination to another body-politic? To predicate sovereignty of commonwealths debarred from these functions, is to ignore the meaning of terms and the nature of attributes.
$ 107. V. The Executive Powers. The Constitution recognizes our nationality in the essential nature of the powers conferred upon the Executive. He is the commander-in-chief of the forces of the United States, and, as such, has the entire, exclusive control and direction of war, after hostilities have been declared and armies and navies raised by Congress. He, with the advice and consent of the Senate, must enter into all treaties with foreign countries, and appoint all important officers in the general service. He holds intercourse with other nations through means of ambassadors. Finally, he is charged with the duty of executing all laws of the United States. These are attributes of independent sovereignty, capable of being conferred on an official only by the political society in which that sovereignty resides.
$ 108. VI. The Judicial Powers. — The Constitution recognizes our nationality in the essential character of the powers conferred upon its judiciary. Many of these are exclusively held by the courts of the nation, and are commensurate with
the legislative functions granted to the government. I need now refer but to a single one of the judicial powers, but that one is of the utmost importance. As the Supreme Court has jurisdiction in all cases arising under the Constitution, the laws of the United States, and treaties made under their authority, it follows that this tribunal is the final interpreter of the Con. stitution and of all laws and treaties made by the United States, and of all laws made by the several states so far as they conflict with the organic law; and its decisions, forming a part of the great body of unwritten jurisprudence, are the supreme law of the land. State constitutions and laws, ag well as acts of Congress, may be reviewed, questioned, condemned, and declared null and void by the national judiciary. No other court in the world is clothed with such functions.
$ 109. VII. Finally, the Constitution recognizes our nation. ality in providing means for the sovereign people to make amendments in their organic law. This power of amendment, when exercised in the appointed manner, is absolutely unlimited Article V. explains the methods which must be followed by the people in availing themselves of this inherent and absolute control over the fundamental law. “ 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 a part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as 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 1808, 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."
$ 110. Here is no limit upon the power of amendment, but only upon the nodes in which that power shall be exerted. The proviso with which the article closes, plainly implies that