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Law of the States; the second one should be in the hands of every teacher of the Constitution.
III. THE UNITED STATES SUPREME COURT REPORTS.—These are found in 153 Vols., and are referred to in every case save the last series by the name of the Reporter: Dallas 4 vols., Cranch 9, Wheaton 12, Peters 16, Howard 24, Black 2, Wallace 23, V. S., 63. Whenever a decision of the Court is referred to in this work, the appropriate citation is made.
IV. HISTORY.–Von Holst, Constitutional and Political History of the United States (a series of 10 volumes covering the period 1750w 1861); Hildreth, History of the U. S., Vols. IV.-VI., (coming down only to 1820); Landon, Constitutional History and Government of the U. S.; Schouler, History of the U. S.; McMaster, History of the People of the U. S.; Pitkin, Political and Civil History of the U.S., Chaps. XX.-XXV.; Bancrofts and Curtis's Histories of the Constitution; volumes of The American Statesman Series. The teacher will find Johnston's United States, VI.-XI., his History of American Politics, and his historical articles in Lalor's Cyclopædia very helpful. Bryce's The American Commonwealth is second in value to no work that has been written on the American Government.
V. MISCELLANEOUS.-U. S. Statutes at Large ; Congressional Debates, Annals of Congress and Congressional Record inclusive, 1789-1895 ; Desty, The Constitution of the U. S. with notes, and Manual of Practice in the Courts of the U. Swith notes on Decisions.
How the American Government was made, has been described at sufficient length in Part I. This description has also made it plain that the United States are a Federal state, or Bundesstaat, and their government a Federal government. Light has also been thrown upon the National and State sides of the dual system and their relations. It now becomes our duty formally to describe the two governments that together constitute the one American Government. Shall we begin with the Nation or with the States ? The answer to this question will not be doubtful when we have considered the two jurisdictions under a single aspect.
223. Priority of the States.-Federal states have commonly been formed by uniting plural states previously
existing, not by dividing unitary states. Such was the history of the American state. The Colonies as political societies came before the United States as a political society. Their governments, dating from the origin of the English plantations, were some of them a century and a half old when the National Government came into existence. These facts, which have sometimes confused the work of political theorists, are never to be forgotten. (See Chaps. I.-IV.)
224. First Division of Powers.- Previous to the Revolution, the totality of governmental powers was possessed by the Colonies and the Home government, sovereignty residing in the latter. The separation of the Colonies from the Mother Country, which practically took place in 1775, involved the withdrawal of all such powers from, or their denial, to her. At the same time that this withdrawal or denial was made, the totality of powers was divided, by general agreement, however, rather than by formal convention between the Colonies, which now became States, and the Union. In other words, the General Congress of the States, acting in the name of the one people, assumed the exercise of certain powers that were at the time deemed essential for the common defense, and this assumption was ratified by the acquiescence of the States and by the American people. For some years this distribution rested upon a purely prescriptive basis, but in 1781 it was incorporated, with little change, in the Articles of Confederation. (See Chaps. IV.-VI.)
225. Second Division of Powers.-The first distribution proving unsatisfactory, a second one was made in 1787-89. This was effected by the framing and ratification of the Constitution, and still stands, so far as a written constitution can be said to stand," save as modified by the fifteen Amendments. These Amendments, it may be observed, sometimes extend the original grant of powers, as XIII., XIV., XV.; sometimes more closely limit or
define that grant, as I.-XI., and sometimes merely change the mode in which an old power is exercised, as XII.
226. Inherent and Delegated Powers.— The cir. cumstances under which the Union originated necessarily involved one distinction between the Nation and the State that must not be overlooked. The powers exercised by the State government are never called grants or delegations of power, while those exercised by the Nation are so styled. The States are therefore said to possess original or inherent powers, the Nation granted or delegated powers. This distinction dates from the formation of the Union. The Articles of Confederation reserved to the States all rights and powers that were not "expressly delegated” to the United States. The powers of the States may also be called residuary powers.
227. The Constitution a Grant of Powers. The Constitution, which made so many other changes, did not touch the fundamental distinction that has been explained. History shows that the Convention of 1787 intended to proceed on the theory of delegated powers; the Constitution assumes it throughout, while Amendments IX. and X. declare it in express words, as follows:
• 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."
228. Phraseology of National and State Constitutions.—To an extent the National and State Constitutions are written in different political vocabularies. The first speaks the language of delegated powers; the second speaks the language of inherent powers. Such provisions as those quoted above are peculiar to the National instrument. Section 8, Article I., of the Constitution comprises an enumeration of the general powers of Congress; but no State constitution contains a similar enumeration. Still,
it must not be supposed that the powers of the National Government are all expressly delegated.
229. Implied Powers.--Expressed powers are delegated in terms; implied powers by inference and necessity. It would be absurd to speak of the "implied” powers of the State, for implication always goes with delegation. The first seventeen clauses of Section 8, referred to above, convey express grants of power, while the last clause, by authorizing Congress to make all laws that shall be necessary for carrying into effect the foregoing powers, and all others vested by the Constitution in the government of the United States, or any department thereof, plainly recognizes implied powers. But such powers would still exist even if this clause were not in the Constitution, for they are essential to the existence of the Government.
C.-J. Marshall argued in one of his greatest opinions : “We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended; but we think the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. 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 eud, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” 1
230. Powers Delegated, Prohibited, Reserved. Viewing the totality of political powers from the standpoint of the Constitution, we see them falling into the following groups : (1.) Powers that are delegated to the Union. (2.) Powers that are prohibited to the Union. (3.) Powers that are prohibited to the States. (4.) Powers that are reserved to the States or to the people. This residue of powers, their original possessors, the States or the people, deal with as they see fit when they frame their constitutions.1
1 McCulloch v. Maryland, 4 Wheaton 316.
231. Concurrent Powers. The division of powers accomplished in 1789 by the ratification of the Constitution left a large tract of political territory, so to speak, open to both the Union and the States. Accordingly, the two jurisdictions overlap. In fact, they always overlap unless the jurisdiction of the Nation excludes the jurisdiction of the State. For example, Mr. Justice Story says a reasonable interpretation of the Constitution necessarily leads to the conclusion that the powers granted to Congress are never exclusive of similar powers existing in the States, unless (1) “The Constitution has expressly, in terms, given an exclusive power to Congress ;" or (2) “The exercise of a like power is prohibited to the States;” or (3). “There is a direct repugnancy or incompatibility in the exercise of it by the States."2 Taxation well illustrates this concurrent jurisdiction. The Constitution gives Congress the most ample revenue powers, but it denies to the States only the laying of customs-duties and duties on tonnage. Congress is empowered to levy internal taxes, and the States are not forbidden to do so. The whole field of internal
Mr.C, G, Tiedeman (“The Unwritten Constitution of the United States," p. 138.) thus illustrates the constitutional provisions in regard to powers.
"Outer Circle represents totality of governmental powers. “Circle A
powers delegated to the United States. “Circle B equal powers reserved to the States. "Segment c concurrent powers.
Segment D powers prohibited to both branches of government.
'Segment E powers prohibited to the States, but neither prohibited nor delegated to the United States.
2 Houston v. Moore, 2 Wheaton 259.