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taxation is open to the States, as well as to the Union. Generally, however, the States avoid taxes that would overlap those already imposed by Congress, lest property and industry be unduly burdened. In some cases the States have exercised powers until the Nation has seen fit to assume them, as in bankruptcy and authorizing paper-money.

232. Constitutional Presumptions.— The student must approach the Union and the States in quite different

The presumption changes as we pass from the one to the other. Judge Cooley states the difference in these words :

To ascertain whether any power assumed by the Government of the United States is rightfully assumed, the Constitution is to be examined in order to see whether expressly or by fair implication the power has been granted."

"To ascertain whether a State rightly exercises a power, we have only to see whether, by the Constitution of the United States, it is conceded to the Union, or by that Constitution or that of the States prohibited to be exercised at


233. Method of Study. It is therefore clear that when the American people finally divided the powers of sovereignty, they made the States what may be called their residuary legatees. They delegated the most imposing powers—those that constitute sovereignty in the eye of International Law-to the Union, and left the remainder, unless denied in terms or by implication, to their former holders. It is the Nation, therefore, that stands out with boldness upon the political background. It is the Nation that arrests the attention and appeals to the imagination. Accordingly, when a student has made himself familiar with so much of our system as exists and works under his own eyes—which belongs mainly to the State spheremhe should first take up the National Government, leaving the States for later study. The excepted or delegated powers naturally precede the residuary powers. A still further reason for observing this order is, that there are as many State constitutions as there are States, agreeing indeed in their most prominent features, but still differing in important details; while the study of the National Constitution, if intelligently carried on, will not fail to illuminate them all, thus making it possible to dispose of them together within a limited compass of space.

1 Principles of Constitutional Law, p. 31.




The literature of the present subject is very voluminous. All the text-writers mentioned in references to last chapter treat it directly and the historiaus indirectly. Clear statements of the different views that have been held, will be found in Professor Alexander Johnston's articles in Lalor's Cyclopædia, bearing the following titles : Congress, Continental; Declaration of Independence; Nation ; State Sovereignty, Kentucky Resolutions; Convention, Hartford, Judiciary; Allegiance; Nullification ; Secession; Reconstruction. The extreme State Rights view is stated by Calhoun, Works, Vol. I., p.111. Vol. II., pp. 197, 262, Vol. III., p. 140; by Jefferson Davis, Rise and Fall of the Confederation, and by A. H. Stevens, The War Between the States. Madison's view is stated by himself in The Federalist , No. 89, and in the N. A. Review, October, 1830. For Webster's view, see Works, Vol. III., pp. 270, 448; Chief Justice Marshall's, McCulloch v. The State of Maryland, 4 Wheaton 316; Chief Justice Chase's, Texas v. White, 7 Wallace 700.

The subject of the present chapter has been a source of contention almost from the day that our present government went into operation. The logic of history from the establishment of the English Plantations down to 1787, imposed upon the country a dual form of government, irrespective of the intrinsic merits of such a system. This was universally admitted at the time. “No political dreamer," says C.-J. Marshall, “was ever wild enough to think of breaking down the line which separated the States, and compounding the American people into one mass. The question before the Federal Convention was not the speculative one relating to the merits of federal government, but rather the practical one of adjustment,committing certain powers of government to the States and others to the Nation. What was the nature of the adjustment that was reached? This question will now be

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examined in its general features, leaving minor ones to be considered hereafter. First, we shall look at contemporary opinion.

234. View of the National Party.—The principal questions that arose in connection with the framing and ratification of the Constitution, and the answers that were returned to them, were set forth in Chapters VIII.-X. The general issue was whether a National system, or a Federal state, should be formed, or the old State system, or Confederation, with modifications, should be continued. That issue was decided in all essential points in favor of the first plan. The plan finally adopted embraced a government of three departments, a bicameral legislature clothed with ample powers, and an efficient executive and judiciary—in a word, a government that at all points where the National will was involved, was wholly independent of the State governments, and was fully equipped to execute that will directly upon the people. One concession was made to the Carolinas and Georgia in relation to the slave trade, one to the agricultural States in regard to an export duty, and one to the small States of an equal suffrage in the Senate ; but no one of the so-called compromises touched the heart of the great question at issue. While the men who favored a National system were obliged

to concede some points that they would rather have reCtained, they still felt at the close of their labors that they

had, in material features, secured what they desired. Men like Patterson and Dickinson, who had originally favored a State system, understood the grand result in the same way. This was also the understanding of the men who abandoned the Convention before it adjourned, and those who at last refused to sign the Constitution.

235. View of the State Party.—This is the name borne by the men who opposed the Constitution. They did so on the express ground that a National system had been formed. The Constitution spoke in the name of the people, the Articles of Confederation in the name of the States; and the State men, hoping to create prejudice thereby, caught at the change of style and strove to make the most of it. Patrick Henry demanded in the Virginia convention, "Why the change from 'we, the States,' to 'we, the people'?” and he denounced the instrument as a consolidated National government. Some of those who opposed the Constitution on the ground that it provided for a National system, or Federal state, a few years later united with others who had favored it, in the claim that it was only a confederation, and in forming a political party that was based on that idea. Had this been the common understanding in 1787 and 1788, those who favored the Constitution would have opposed, and those who opposed it would have favored, its ratification.

This common understanding is fully-sustained when we come to examine the instrument itself.

236. The Preamble.- The first clause of the Constitution is commonly called the preamble, but also sometimes its enacting clause. A proper preamble gives reasons why a resolution or act is passed, and, since it does not resolve, enact, or ordain anything, is not a part of the act itself. An enacting clause, on the other hand, gives the act all its force and effect. If the following declaration were nothing but a preamble, it could be cut off without affecting the Constitution ; but as it is that could not be done without leaving the Constitution a headless trunk. Nothing would then be ordained or established. We are therefore to regard this clause as an integral and necessary part of the instrument itself. It is in these words:

We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, 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.

237. Elements of the Preamble.— These are three in number.

1. The name of the nation, people, or sovereign power that acts or speaks : We, the people of the United States.

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