forbid, the constitutional powers granted to the govern-
ment of the United States would be nugatory if the
government of the state might veto, under the pretense
of regulating. Perhaps the rule deducible from the
cases is, that, while each state did not, by the adoption
of the Constitution, surrender its ordinary local powers
of self-government operative upon all persons and
property which exist, or may come, within its territory,
and which merge in the mass of persons and property
subject to its jurisdiction, yet, nevertheless, the terri-
torial limits of each state's jurisdiction, the grant to the
government of the United States of powers conflicting
with state sovereignty, and a due regard to the rights
of citizens of other states, must be held to limit the
exercise by each state of its otherwise illimitable
powers of police, by the restriction that those powers
are not to be so exercised as to interfere with the full
execution of the powers granted to the United States.
If this be the rule, persons or property brought within
the territory of a state by the exercise of any federal
power, must be exempted from obstructive state control
until the federal power has ceased to operate, and the
persons, or property, on which it acted, have merged in
the mass of persons, or property, within the territory of
the state. On the same principle, federal agencies are
exempted from any such state regulation, as hinders the
agent in the full performance of his, or its, duty to the
government of the United States. Of course, Congress
may so legislate with regard to any subject-matter of
federal regulation, as it has heretofore legislated with
regard to Quarantine and Pilotage,' that the states may
be enabled to rightfully regulate that which would
otherwise be exempt from their control.

1 Supra, Sections 46 and 47.

CHAPTER XII.

THE FEDERAL SUPREMACY AND THE RESERVED RIGHTS
OF THE STATES.

122. The constitutional declaration of the federal supremacy.

123. The supremacy of the Constitution.

124. The supremacy of the acts of Congress.

125. The supremacy of treaties.

126. The results of federal supremacy.

127. The constitutional reservation of the rights of the states.

128. The nature and extent of those reserved rights.

129. The importance of the preservation of the rights of the states.

122. Section 2 of Article VI of the Constitution
declares, that "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, anything in the Constitution
or laws of any state to the contrary notwithstanding."
The supreme authority is, therefore, first, the Constitu-
tion; second, the laws of the United States made in
pursuance thereof; and third, treaties duly made under
the authority of the United States.

123. The Constitution is the Constitution as origin-
ally ratified, and as subsequently amended in the
manner and under the restrictions contained in the V
Article thereof, and as construed by the executive
department of the government, so far as regards execu-
tive action, and by the legislative department of the
government so far as regards legislative action, and by
the judicial department of the government so far as
273

18

regards all rights and privileges which may properly become subjects of judicial determination. As the three departments of the government of the United States are co-ordinate in authority, and as they are alike bound to obey the Constitution as a paramount rule of action, it follows that each must determine for itself, so far as regards its action in the performance of the duties delegated to it by the Constitution, what the proper construction of that instrument is.

124. The supremacy of any statute of the United States is dependent upon its constitutionality,' but an act of Congress will not, on slight implication, or vague conjecture, be judicially determined to be in conflict with the Constitution, for the presumption is always in favour of the constitutionality of a law.2 Statutes, which are constitutional in part only, will be upheld by the court so far as they are not in conflict with the Constitution, provided that their constitutional, and their unconstitutional, parts be severable; but when the unconstitutional parts of such a statute are so connected with its general scope, that, should they be stricken out, effect cannot be given to the legislative intent, the other provisions of the statute must fall with them.*

3

125. In the order of supremacy, treaties, duly ratified, are of inferior authority to the Constitution, and to constitutional acts of Congress, but they are of

1 Marbury v. Madison, 1 Cr. 137; Norton v. Shelby County, 118 U. S. 442. 2 Fletcher v. Peck, 6 Cr. 87; The Legal Tender Cases, 12 Wall. 531; U. S. v. Harris, 106 U. S. 629.

"Packet Co. v. Keokuk, 95 U. S. 97.

Allen v. Louisiana, 103 U. S. 80; Spraigue v. Thompson, 118 id. 90; U. S. v. Harris, 106 U. S. 629; The Virginia Coupon Cases, 114 id. 289, 305; Baldwin v. Franks, 120 U. S. 678, 685; The Trade Mark Cases, 100 U. S. 82. 5 The Cherokee Tobacco, 11 Wall. 616; Foster v. Neilson, 2 Pet. 253, 314; The Head Money Cases, 112 U. S. 580; Baldwin v. Franks, 120 id. 678, 703; U. S. v. McBratney, 104 id. 621, 623.

2

superior authority to state legislation,' and where a treaty declares the rights and privileges, which the citizens or subjects of a foreign nation may enjoy in the United States, it, in general, operates by its own force, and does not require the aid of any congressional enactment. While, as respects the rights and obligations of the contracting governments, a treaty is to be regarded as concluded and binding from the date of its signature, yet as respects the effects of the treaty on the rights of citizens of the United States vested before the ratification of the treaty but subsequently to its signature, the treaty is not to be considered as a part of the supreme law of the land until after its ratifications have been exchanged, for the Senate may in process of ratification amend the treaty, and it cannot be known, until it be ratified, what it may command or prohibit. Treaties do not, unless they be in express terms retroactive, affect rights vested, or liabilities incurred, before their ratification.

126. A consideration of the cases which have been cited in the preceding chapters of this book leads to the conclusion that the supremacy of the government of the United States, within its constitutional sphere of action, involves: first, the exercise of judicial power by the government of the United States for the purposes of enforcing the rights created by the Constitution, laws,

1 U. S. v. 43 Gallons of Whiskey, 93 U. S. 188; Hauenstein v. Lynham, 100 id. 483.

2 Chirac v. Chirac, 2 Wheat. 259; Carneal v. Banks, 10 id. 181; Hughes v. Edwards, 9 id. 489, 496; Hauenstein v. Lynham, 100 U. S. 483; sed cf. Baldwin v. Franks, 120 U. S. 678.

3 Dana's Wheaton's International Law, 36.

Art. II, Section 2, of the Constitution requires the advice and consent of the Senate, and the concurrence of two-thirds of the Senators present, to the making of any treaty by the President.

5 U. S. v. Arredondo, 6 Pet. 691, 749; Haver v. Yaker, 9 Wall. 32.

• Prevost v. Greneaux, 19 How. 1; Frederickson v. Louisiana, 23 How. 445.

and treaties of the United States, of punishing offenses against the laws of that government, and of finally determining the judicial construction of the Constitution, statutes, and treaties of the United States; second, the exemption of all property and agencies of the federal government from state control; and third, the nonexercise by the states of powers clashing with the powers granted by the Constitution to the government of the United States.

127. Articles IX and X of the Amendments to the Constitution declare that, "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." . "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." If these amendments had never been adopted, the construction of the Constitution as a whole would lead inevitably to the conclusion that, in so far as the states are not controlled by the expressed or implied restrictions contained in the Constitution of the United States, they may severally exercise all the powers of independent governments.1

128. The nature and extent of the reserved rights of the states must be determined by a process of reasoning by exclusion, involving a statement of the specific constitutional restraints upon freedom of state action, and a conclusion that any state may, so far as the United States are concerned, rightfully exercise every power of government which is not included within the specific restraints thus enumerated. A consideration of the terms of the Constitution and of the effect of the judgments of the court, which have been cited in the preceding chapters of this book, renders it easy to formulate 1 Supra, Sec. 3.