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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..96c6513 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #55452 (https://www.gutenberg.org/ebooks/55452) diff --git a/old/55452-0.txt b/old/55452-0.txt deleted file mode 100644 index 1371340..0000000 --- a/old/55452-0.txt +++ /dev/null @@ -1,9719 +0,0 @@ -The Project Gutenberg EBook of The Essentials of American Constitutional -Law, by Francis Newton Thorpe - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The Essentials of American Constitutional Law - -Author: Francis Newton Thorpe - -Release Date: August 28, 2017 [EBook #55452] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK ESSENTIALS OF AMERICAN CONSTITUTIONAL LAW *** - - - - -Produced by Sonya Schermann, Charlie Howard, and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - - - - - - - - - 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. - - - - - -End of the Project Gutenberg EBook of The Essentials of American -Constitutional Law, by Francis Newton Thorpe - -*** END OF THIS PROJECT GUTENBERG EBOOK ESSENTIALS OF AMERICAN CONSTITUTIONAL LAW *** - -***** This file should be named 55452-0.txt or 55452-0.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/5/4/5/55452/ - -Produced by Sonya Schermann, Charlie Howard, and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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- margin-top: 1em; - margin-bottom: 1em; - padding: .5em; - } - - .index {margin-left: 0;} - - .covernote {visibility: visible; display: block; text-align: center;} -} - </style> - </head> - -<body> - - -<pre> - -The Project Gutenberg EBook of The Essentials of American Constitutional -Law, by Francis Newton Thorpe - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The Essentials of American Constitutional Law - -Author: Francis Newton Thorpe - -Release Date: August 28, 2017 [EBook #55452] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK ESSENTIALS OF AMERICAN CONSTITUTIONAL LAW *** - - - - -Produced by Sonya Schermann, Charlie Howard, and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - - - - - - -</pre> - -<div class="transnote covernote"> -<p class="center large bold">Transcriber’s Note</p> - -<p class="center">Cover created by Transcriber and placed in the Public Domain.</p> -</div> - -<h1><span class="large">The<br /> -Essentials of American<br /> -Constitutional Law</span></h1> - -<p class="p2 center smaller">By</p> -<p class="p1 b0 center xlarge">Francis Newton Thorpe, Ph.D. LL.D.</p> -<p class="p0 center vspace">(Of the Pennsylvania Bar)<br /> -Professor of Political Science and Constitutional Law<br /> -University of Pittsburgh</p> - -<p class="p2 center">“It is a Constitution we are expounding.”—<cite>John Marshall</cite></p> - -<p class="p2 center"><span class="xlarge">G. P. Putnam’s Sons</span><br /> -<span class="larger">New York and London</span><br /> -<span class="bold">The Knickerbocker Press</span> -</p> - -<hr /> - -<p class="newpage p4 center vspace smaller vspace"> -<span class="smcap">Copyright, 1917</span><br /> -<span class="small">BY</span><br /> -FRANCIS NEWTON THORPE</p> - -<div class="figcenter" style="max-width: 5.1em;"> -<img src="images/i_000.jpg" width="81" height="138" alt="Publisher's logo" /> -</div> - -<p class="p0 center">Made in the United States of America</p> - -<hr /> - -<p class="newpage p4 center vspace"> -* AD * JUVENES *<br /> -* LEGUM * STUDIOSOS *<br /> -* QUANDO *<br /> -* ADVOCATOS * JUDICES *<br /> -* LEGISLATORES *<br /> -* HODIE *<br /> -* ANNORUM * AMICOS *<br /> -* HIC * LIBELLUS *<br /> -* DEDICATUS * -</p> - -<hr /> - -<p><span class="pagenum" id="Page_v">v</span></p> - -<div class="chapter"> -<h2 id="PREFACE">PREFACE</h2> -</div> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_vi">vi</span> -of an issue, or issues, in which the principle is -involved. There must ever be before the Court -the issue <em>and</em> 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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_vii">vii</span> -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.</p> - -<p><span class="pagenum" id="Page_viii">viii</span> -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.”</p> - -<p>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.<span class="pagenum" id="Page_ix">ix</span> -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.</p> - -<p>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.</p> - -<p class="sigright">F. N. T.</p> - -<p class="in0 in1 smaller"><i>University of Pittsburgh.</i></p> - -<hr /> - -<p><span class="pagenum" id="Page_xi">xi</span></p> - -<div class="chapter"> -<h2 id="CONTENTS">CONTENTS</h2> -</div> - -<table id="toc" summary="Contents"> - <tr> - <td class="tdc chap" colspan="2">CHAPTER I.</td></tr> - <tr class="small"> - <td> </td> - <td class="tdr">PAGE</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Supreme Law</span></td> - <td class="tdr"><a href="#CHAPTER_I">1</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER II.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Legislative Powers</span> (1)</td> - <td class="tdr"><a href="#CHAPTER_II">18</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER III.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Legislative Powers</span> (2)</td> - <td class="tdr"><a href="#CHAPTER_III">33</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER IV.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Taxation</span></td> - <td class="tdr"><a href="#CHAPTER_IV">51</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER V.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Commerce</span></td> - <td class="tdr"><a href="#CHAPTER_V">63</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER VI.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Contracts and Property</span></td> - <td class="tdr"><a href="#CHAPTER_VI">89</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER VII.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of the Executive Power</span></td> - <td class="tdr"><a href="#CHAPTER_VII">102</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER VIII.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Judicial Power</span></td> - <td class="tdr"><a href="#CHAPTER_VIII">113</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER IX.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of State Comity, Territories, and Possessions</span></td> - <td class="tdr"><a href="#CHAPTER_IX">146</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER X.<span class="pagenum" id="Page_xii">xii</span></td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Limitations</span></td> - <td class="tdr"><a href="#CHAPTER_X">164</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER XI.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Fundamental Rights</span></td> - <td class="tdr"><a href="#CHAPTER_XI">191</a></td></tr> - <tr> - <td class="tdc chap" colspan="2">CHAPTER XII.</td></tr> - <tr> - <td class="tdl"><span class="smcap">The Law of Citizenship</span></td> - <td class="tdr"><a href="#CHAPTER_XII">212</a></td></tr> - <tr class="tpad"> - <td class="tdc" colspan="2"><span class="bt"> </span></td></tr> - <tr class="tpad"> - <td class="tdl"><span class="smcap">The Constitution of the United States</span></td> - <td class="tdr"><a href="#Appendix">230</a></td></tr> - <tr class="tpad"> - <td class="tdl"><span class="smcap">Cases Cited</span></td> - <td class="tdr"><a href="#CASES_CITED">265</a></td></tr> - <tr class="tpad"> - <td class="tdl"><span class="smcap">Index</span></td> - <td class="tdr"><a href="#INDEX">273</a></td></tr> -</table> - -<hr /> - -<div class="chapter"> -<h2 class="vspace wspace"><span class="larger">The Essentials of American<br /> -Constitutional Law</span></h2> -</div> - -<p><span class="pagenum" id="Page_1">1</span></p> - -<hr class="narrow" /> - -<h2 id="CHAPTER_I" class="nobreak vspace">CHAPTER I<br /> - -<span class="subhead">THE SUPREME LAW</span></h2> - -<p>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.<a id="FNanchor_1" href="#Footnote_1" class="fnanchor">1</a> -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<span class="pagenum" id="Page_2">2</span> -citizen is impliedly under oath to support the -Constitution.</p> - -<p>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.</p> - -<p>3. The laws of the United States are made by -Congress and the President, or by Congress alone -over his veto.<a id="FNanchor_2" href="#Footnote_2" class="fnanchor">2</a> 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 <em>derivative</em>, not <em>original</em>, -powers; they <em>represent</em> 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<span class="pagenum" id="Page_3">3</span> -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.<a id="FNanchor_3" href="#Footnote_3" class="fnanchor">3</a> Legislative, executive,<span class="pagenum" id="Page_4">4</span> -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.</p> - -<p>4. Madison, in <cite>The Federalist</cite>, states the whole -case: A republic is</p> - -<blockquote> - -<p class="in0">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<span class="pagenum" id="Page_5">5</span> -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.<a id="FNanchor_4" href="#Footnote_4" class="fnanchor">4</a></p></blockquote> - -<p>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.<a id="FNanchor_5" href="#Footnote_5" class="fnanchor">5</a> Through this supreme law -the entire public business is carried on. The constitution -of Massachusetts sets forth the essential fact:</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_6" href="#Footnote_6" class="fnanchor">6</a></p></blockquote> - -<p class="in0">The distinction between original and derivative -powers made by the constitution of Massachusetts -is true of the supreme law of the United States.</p> - -<p>6. The quality of supremacy involves and implies -sovereignty. Sovereignty is indefinable; is not,<span class="pagenum" id="Page_6">6</span> -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.”<a id="FNanchor_7" href="#Footnote_7" class="fnanchor">7</a> -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.<a id="FNanchor_8" href="#Footnote_8" class="fnanchor">8</a> 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<span class="pagenum" id="Page_7">7</span> -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,</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_9" href="#Footnote_9" class="fnanchor">9</a></p></blockquote> - -<p><span class="pagenum" id="Page_8">8</span> -This supremacy results from the nature of the -government.</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_10" href="#Footnote_10" class="fnanchor">10</a></p></blockquote> - -<p>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,<a id="FNanchor_11" href="#Footnote_11" class="fnanchor">11</a> “is at once a recognition -of the portion of sovereignty remaining in the individual -States, and an instrument for preserving -that residuary sovereignty.”<a id="FNanchor_12" href="#Footnote_12" class="fnanchor">12</a> Are there two sovereignties -in America?</p> - -<blockquote> - -<p class="in0">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<span class="pagenum" id="Page_9">9</span> -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.<a id="FNanchor_13" href="#Footnote_13" class="fnanchor">13</a></p></blockquote> - -<p>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.</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_14" href="#Footnote_14" class="fnanchor">14</a> But when a State taxes -the operations of the government of the United States, -it acts upon institutions created not by their own constituents,<span class="pagenum" id="Page_10">10</span> -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.<a id="FNanchor_15" href="#Footnote_15" class="fnanchor">15</a></p></blockquote> - -<p>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.<a id="FNanchor_16" href="#Footnote_16" class="fnanchor">16</a> On the other -hand, distinctively State functions are the exercise -of the police power of the State,<a id="FNanchor_17" href="#Footnote_17" class="fnanchor">17</a> the control of intrastate -commerce, the power of extradition between<span class="pagenum" id="Page_11">11</span> -States,<a id="FNanchor_18" href="#Footnote_18" class="fnanchor">18</a> the validity in a State of the public acts, records, -and judicial proceedings of another State<a id="FNanchor_19" href="#Footnote_19" class="fnanchor">19</a> and -the right of citizens of each State to all privileges and -immunities of citizens in the several States.<a id="FNanchor_20" href="#Footnote_20" class="fnanchor">20</a></p> - -<p>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.<a id="FNanchor_21" href="#Footnote_21" class="fnanchor">21</a> 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<span class="pagenum" id="Page_12">12</span> -of the two sovereignties, we do not mean <em>sovereignty</em> -(which is by nature indivisible), but <em>government</em> -(which is divisible), the creation of sovereignty and, -unlike sovereignty, possesses only delegated powers.</p> - -<p>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.</p> - -<p>11. Because of the sovereignty of the people of the -United States, and consequently, of the supremacy of -the Constitution, several results follow:</p> - -<p>Madison expresses one of these in <cite>The Federalist</cite><a id="FNanchor_22" href="#Footnote_22" class="fnanchor">22</a>:</p> - -<blockquote> - -<p class="in0">The idea of a national government involves in it not only -an authority over the individual citizens, but an indefinite<span class="pagenum" id="Page_13">13</span> -supremacy over all persons and things, so far as they -are objects of lawful government.</p></blockquote> - -<p>Marshall expresses other <span class="locked">results,—</span></p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_23" href="#Footnote_23" class="fnanchor">23</a></p></blockquote> - -<p>Hamilton, commenting on the Constitution, declares -that “the national and State systems are to -be regarded as one whole.”<a id="FNanchor_24" href="#Footnote_24" class="fnanchor">24</a> 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<span class="pagenum" id="Page_14">14</span> -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.<a id="FNanchor_25" href="#Footnote_25" class="fnanchor">25</a> 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.<a id="FNanchor_26" href="#Footnote_26" class="fnanchor">26</a> Twenty-five years after the purchase<span class="pagenum" id="Page_15">15</span> -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.”<a id="FNanchor_27" href="#Footnote_27" class="fnanchor">27</a> 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.<a id="FNanchor_28" href="#Footnote_28" class="fnanchor">28</a> 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.<span class="pagenum" id="Page_16">16</span> -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.”<a id="FNanchor_29" href="#Footnote_29" class="fnanchor">29</a></p> - -<p>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.”<a id="FNanchor_30" href="#Footnote_30" class="fnanchor">30</a> The exercise<span class="pagenum" id="Page_17">17</span> -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.”<a id="FNanchor_31" href="#Footnote_31" class="fnanchor">31</a></p> - -<hr /> - -<p><span class="pagenum" id="Page_18">18</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_II" class="vspace">CHAPTER II<br /> - -<span class="subhead">THE LAW OF LEGISLATIVE POWERS (1)</span></h2> -</div> - -<p>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.”<a id="FNanchor_32" href="#Footnote_32" class="fnanchor">32</a> Thus the -Constitution declares that “all legislative powers -<em>herein granted</em>” are vested in Congress.<a id="FNanchor_33" href="#Footnote_33" class="fnanchor">33</a> 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.<a id="FNanchor_34" href="#Footnote_34" class="fnanchor">34</a> Rarely is an act of Congress declared -unconstitutional. Legislative experience avoids -the enactment of laws whose constitutionality is -doubtful.</p> - -<p><span class="pagenum" id="Page_19">19</span> -14. The general American doctrine is of the -separation of delegated powers, and is commonly -set forth in State constitutions.<a id="FNanchor_35" href="#Footnote_35" class="fnanchor">35</a> 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 -<em>unit</em>, 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.”<a id="FNanchor_36" href="#Footnote_36" class="fnanchor">36</a> -The practical procedure is followed in the Constitution<span class="pagenum" id="Page_20">20</span> -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.<a id="FNanchor_37" href="#Footnote_37" class="fnanchor">37</a></p> - -<p>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<span class="pagenum" id="Page_21">21</span> -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.<a id="FNanchor_38" href="#Footnote_38" class="fnanchor">38</a> 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.”</p> - -<p>16. In determining the nature and extent of these -powers, we are aided by the Constitution itself which -sets limitations. Thus,</p> - -<blockquote> - -<p class="in0">all duties, imposts, and excises shall be uniform throughout -the United States.<a id="FNanchor_39" href="#Footnote_39" class="fnanchor">39</a> The privilege of the writ of <i xml:lang="la" lang="la">habeas corpus</i><span class="pagenum" id="Page_22">22</span> -shall not be suspended unless when in cases of -rebellion or invasion the public safety may require it.<a id="FNanchor_40" href="#Footnote_40" class="fnanchor">40</a> -No bill of attainder or <i xml:lang="la" lang="la">ex post facto</i> law shall be passed.<a id="FNanchor_41" href="#Footnote_41" class="fnanchor">41</a> -No tax or duty shall be laid on articles exported from any -State.<a id="FNanchor_42" href="#Footnote_42" class="fnanchor">42</a> 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.<a id="FNanchor_43" href="#Footnote_43" class="fnanchor">43</a> -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.<a id="FNanchor_44" href="#Footnote_44" class="fnanchor">44</a></p></blockquote> - -<p class="in0">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.<a id="FNanchor_45" href="#Footnote_45" class="fnanchor">45</a></p> - -<p>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:</p> - -<p><span class="pagenum" id="Page_23">23</span></p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_46" href="#Footnote_46" class="fnanchor">46</a></p></blockquote> - -<p class="in0">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.”<a id="FNanchor_47" href="#Footnote_47" class="fnanchor">47</a> -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<span class="pagenum" id="Page_24">24</span> -taxes, like indirect taxes, shall be “uniform throughout -the United States.” It is the first departure in -America from the doctrine of limited government.<a id="FNanchor_48" href="#Footnote_48" class="fnanchor">48</a></p> - -<p>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.<a id="FNanchor_49" href="#Footnote_49" class="fnanchor">49</a> -Judicial interpretation must be distinguished from -economic, industrial, political, or even moral interpretation. -The Constitution provides only for -judicial interpretation.<a id="FNanchor_50" href="#Footnote_50" class="fnanchor">50</a> 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.<a id="FNanchor_51" href="#Footnote_51" class="fnanchor">51</a> 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<span class="pagenum" id="Page_25">25</span> -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.<a id="FNanchor_52" href="#Footnote_52" class="fnanchor">52</a> 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.<a id="FNanchor_53" href="#Footnote_53" class="fnanchor">53</a> 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<span class="pagenum" id="Page_26">26</span> -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.”<a id="FNanchor_54" href="#Footnote_54" class="fnanchor">54</a></p> - -<p>19. The phrase “necessary and proper” practically -includes all the purposes of government, and -these the Constitution itself sets forth, as</p> - -<blockquote> -<p class="in0 in2 b0"> -To form a more perfect Union,<br /> -To establish justice,<br /> -To insure domestic tranquillity,<br /> -To provide for the common defense,<br /> -To promote the general welfare,<br /> -To secure the blessings of liberty -</p> - -<p class="p0 in0">to themselves (“the people of the United States”) and their posterity.<a id="FNanchor_55" href="#Footnote_55" class="fnanchor">55</a></p> -</blockquote> - -<p>This exercise of power by Congress is essentially -<em>political</em>, and Congress alone is judge of “the choice -of means and is empowered to use any means which<span class="pagenum" id="Page_27">27</span> -are in fact conducive to the exercise of a power -granted by the Constitution.”<a id="FNanchor_56" href="#Footnote_56" class="fnanchor">56</a> 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.</p> - -<p>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,<span class="pagenum" id="Page_28">28</span> -and of course, of the powers of Congress, -is largely interpretation by political parties.</p> - -<p>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.<a id="FNanchor_57" href="#Footnote_57" class="fnanchor">57</a></p> - -<p>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<span class="pagenum" id="Page_29">29</span> -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.<a id="FNanchor_58" href="#Footnote_58" class="fnanchor">58</a></p> - -<p>23. The essential fact as to the powers of Congress<span class="pagenum" id="Page_30">30</span> -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.”</p> - -<p><span class="pagenum" id="Page_31">31</span> -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:<a id="FNanchor_59" href="#Footnote_59" class="fnanchor">59</a> -“Let the end be legitimate, let it be within the scope -of the Constitution, and all means which are appropriate,<span class="pagenum" id="Page_32">32</span> -which are plainly adapted to that end, which -are not prohibited, but consist with the letter and -spirit of the Constitution, are constitutional.”</p> - -<hr /> - -<p><span class="pagenum" id="Page_33">33</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_III" class="vspace">CHAPTER III<br /> - -<span class="subhead">THE LAW OF LEGISLATIVE POWERS (II)</span></h2> -</div> - -<p>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 <cite>The Federalist</cite>, 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.”<a id="FNanchor_60" href="#Footnote_60" class="fnanchor">60</a> 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:</p> - -<blockquote> - -<p class="in0">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<span class="pagenum" id="Page_34">34</span> -control but a regard for the public good and to the sense -of the people.<a id="FNanchor_61" href="#Footnote_61" class="fnanchor">61</a></p></blockquote> - -<p class="in0">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.”<a id="FNanchor_62" href="#Footnote_62" class="fnanchor">62</a></p> - -<p>26. The powers of Congress are derived through -this Constitution and are adequate to the legislative -needs of the government thus created. Here again<span class="pagenum" id="Page_35">35</span> -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.</p> - -<p>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:</p> - -<blockquote> - -<p class="in0">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,<span class="pagenum" id="Page_36">36</span> -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.<a id="FNanchor_63" href="#Footnote_63" class="fnanchor">63</a></p></blockquote> - -<p>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.”<a id="FNanchor_64" href="#Footnote_64" class="fnanchor">64</a> -Therefore “where the authority of the States is taken -away by <em>implication</em>, they may continue to act until -the United States exercise their power, because until -such exercise there can be no incompatibility.”<a id="FNanchor_65" href="#Footnote_65" class="fnanchor">65</a> -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<span class="pagenum" id="Page_37">37</span> -falling in the same class) the respective State legislation -is supreme within the jurisdiction of the State.<a id="FNanchor_66" href="#Footnote_66" class="fnanchor">66</a> -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.<a id="FNanchor_67" href="#Footnote_67" class="fnanchor">67</a></p> - -<p>28. But State insolvent laws apply to contracts -within the State between one of its citizens and a<span class="pagenum" id="Page_38">38</span> -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.”<a id="FNanchor_68" href="#Footnote_68" class="fnanchor">68</a></p> - -<p>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.”<a id="FNanchor_69" href="#Footnote_69" class="fnanchor">69</a> -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<span class="pagenum" id="Page_39">39</span> -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.<a id="FNanchor_70" href="#Footnote_70" class="fnanchor">70</a> 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.</p> - -<p>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 <em>implied</em> if it were not expressed. -It is the office or function of a supreme national -government to legislate for national ends and -purposes.<a id="FNanchor_71" href="#Footnote_71" class="fnanchor">71</a></p> - -<p>But the principle of national sovereignty which -operates in Congressional legislation on money, currency, -coinage, and legal tenders, does not nullify<span class="pagenum" id="Page_40">40</span> -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.<a id="FNanchor_72" href="#Footnote_72" class="fnanchor">72</a></p> - -<p>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 <em>uniform</em> 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.<a id="FNanchor_73" href="#Footnote_73" class="fnanchor">73</a></p> - -<p><span class="pagenum" id="Page_41">41</span> -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.<a id="FNanchor_74" href="#Footnote_74" class="fnanchor">74</a> 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.<a id="FNanchor_75" href="#Footnote_75" class="fnanchor">75</a> 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.<a id="FNanchor_76" href="#Footnote_76" class="fnanchor">76</a></p> - -<p>32. Power to provide for the punishment of -counterfeiting the securities and current coin of the -United States is specially delegated to Congress,<a id="FNanchor_77" href="#Footnote_77" class="fnanchor">77</a> but -it is not denied to the several States. The power to -coin money belongs exclusively to Congress<a id="FNanchor_78" href="#Footnote_78" class="fnanchor">78</a> as a -mark and necessary incident of sovereignty, but<span class="pagenum" id="Page_42">42</span> -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.<a id="FNanchor_79" href="#Footnote_79" class="fnanchor">79</a></p> - -<p>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<span class="pagenum" id="Page_43">43</span> -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.<a id="FNanchor_80" href="#Footnote_80" class="fnanchor">80</a> 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.</p> - -<p>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,<a id="FNanchor_81" href="#Footnote_81" class="fnanchor">81</a> 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<span class="pagenum" id="Page_44">44</span> -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.”<a id="FNanchor_82" href="#Footnote_82" class="fnanchor">82</a> -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.”<a id="FNanchor_83" href="#Footnote_83" class="fnanchor">83</a></p> - -<p>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<span class="pagenum" id="Page_45">45</span> -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,<a id="FNanchor_84" href="#Footnote_84" class="fnanchor">84</a> but an -offense that effects piracy, though not technically -robbery, is piracy.<a id="FNanchor_85" href="#Footnote_85" class="fnanchor">85</a> 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.<a id="FNanchor_86" href="#Footnote_86" class="fnanchor">86</a> 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.</p> - -<p>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<span class="pagenum" id="Page_46">46</span> -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.”<a id="FNanchor_87" href="#Footnote_87" class="fnanchor">87</a></p> - -<p>37. The war power is possessed by Congress -exclusively,<a id="FNanchor_88" href="#Footnote_88" class="fnanchor">88</a> 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<span class="pagenum" id="Page_47">47</span> -possesses the whole executive power of the United -States. Ratification of his acts though <i xml:lang="la" lang="la">ex post facto</i> -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.<a id="FNanchor_89" href="#Footnote_89" class="fnanchor">89</a></p> - -<p>38. The word “State” in the Constitution refers -to a State of the Union.<a id="FNanchor_90" href="#Footnote_90" class="fnanchor">90</a> For while the Constitution -was made, “ordained and established by the people -of the United States for themselves,”<a id="FNanchor_91" href="#Footnote_91" class="fnanchor">91</a> 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.<span class="pagenum" id="Page_48">48</span> -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.<a id="FNanchor_92" href="#Footnote_92" class="fnanchor">92</a> 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.<a id="FNanchor_93" href="#Footnote_93" class="fnanchor">93</a> 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.</p> - -<blockquote> - -<p>39. The power of Congress to govern territory, implied -in the right to acquire it, and given to Congress in the -Constitution,<a id="FNanchor_94" href="#Footnote_94" class="fnanchor">94</a> to whatever other limitation it may be -subject, the extent of which must be decided as questions<span class="pagenum" id="Page_49">49</span> -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.<a id="FNanchor_95" href="#Footnote_95" class="fnanchor">95</a></p></blockquote> - -<p class="in0">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,<a id="FNanchor_96" href="#Footnote_96" class="fnanchor">96</a> 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.<a id="FNanchor_97" href="#Footnote_97" class="fnanchor">97</a> -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<span class="pagenum" id="Page_50">50</span> -the issue involving it shall arise.<a id="FNanchor_98" href="#Footnote_98" class="fnanchor">98</a> The safeguard -against congressional absolutism is thus expressed by -the Court:</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_99" href="#Footnote_99" class="fnanchor">99</a></p></blockquote> - -<hr /> - -<p><span class="pagenum" id="Page_51">51</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_IV" class="vspace">CHAPTER IV<br /> - -<span class="subhead">THE LAW OF TAXATION</span></h2> -</div> - -<p>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.<a id="FNanchor_100" href="#Footnote_100" class="fnanchor">100</a> We are relieved, as we ought to be, from clashing -sovereignty.</p> - -<p><span class="pagenum" id="Page_52">52</span> -It follows that the powers and functions of the two -governments can be harmonized “only by a wise and -forbearing application of this principle.”<a id="FNanchor_101" href="#Footnote_101" class="fnanchor">101</a></p> - -<p>41. A tax is a burden or charge imposed by the -legislature on property or persons to raise money for -public purposes.<a id="FNanchor_102" href="#Footnote_102" class="fnanchor">102</a> 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,<a id="FNanchor_103" href="#Footnote_103" class="fnanchor">103</a> a limitation parallel to the -limitation of the sovereignty of the State, that is, a -version (however unphilosophical) of the idea in the<span class="pagenum" id="Page_53">53</span> -phrase “residuary sovereignty.”<a id="FNanchor_104" href="#Footnote_104" class="fnanchor">104</a> But unless restrained -by the federal Constitution the power of -Congress as to mode, form, or extent of taxation is -unlimited.</p> - -<p>The test here is jurisdiction.<a id="FNanchor_105" href="#Footnote_105" class="fnanchor">105</a> Taxation is the -correlative of protection. As the State cannot protect -so it cannot tax beyond its jurisdiction.<a id="FNanchor_106" href="#Footnote_106" class="fnanchor">106</a> 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,<a id="FNanchor_107" href="#Footnote_107" class="fnanchor">107</a> but there is no established limit of the -taxing power or to the selection of objects to which it -is applicable.<a id="FNanchor_108" href="#Footnote_108" class="fnanchor">108</a></p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_54">54</span></p><blockquote> - -<p class="in0">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.</p></blockquote> - -<p class="in0">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.<a id="FNanchor_109" href="#Footnote_109" class="fnanchor">109</a></p> - -<p>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.<a id="FNanchor_110" href="#Footnote_110" class="fnanchor">110</a> But this protection of government -is not limited to the United States by limiting the<span class="pagenum" id="Page_55">55</span> -States; it applies to the States as limiting the United -States.</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_111" href="#Footnote_111" class="fnanchor">111</a> 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.</p></blockquote> - -<p>In our complex system, the existence of the -States in their separate and independent condition</p> - -<blockquote> - -<p class="in0">is so indispensable, that without them the general government -itself would disappear from the family of nations.<a id="FNanchor_112" href="#Footnote_112" class="fnanchor">112</a> -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<span class="pagenum" id="Page_56">56</span> -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.<a id="FNanchor_113" href="#Footnote_113" class="fnanchor">113</a></p></blockquote> - -<p>44. One of the reserved powers of the States was -to establish a judicial department.</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_114" href="#Footnote_114" class="fnanchor">114</a></p></blockquote> - -<p>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.</p> - -<blockquote> - -<p class="in0">In both cases the exemption rests upon necessary implication, -and is upheld by the great law of self-preservation;<span class="pagenum" id="Page_57">57</span> -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.<a id="FNanchor_115" href="#Footnote_115" class="fnanchor">115</a></p></blockquote> - -<p>45. This was the constitutional law of the United -States as settled in 1870,<a id="FNanchor_116" href="#Footnote_116" class="fnanchor">116</a> 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.”<a id="FNanchor_117" href="#Footnote_117" class="fnanchor">117</a></p> - -<p>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<span class="pagenum" id="Page_58">58</span> -decision in the case of The Collector <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> -Day?<a id="FNanchor_118" href="#Footnote_118" class="fnanchor">118</a> 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<span class="pagenum" id="Page_59">59</span> -States, or a Congressman, or the President of the -United States?<a id="FNanchor_119" href="#Footnote_119" class="fnanchor">119</a></p> - -<p>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.”<a id="FNanchor_120" href="#Footnote_120" class="fnanchor">120</a> 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,<span class="pagenum" id="Page_60">60</span> -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.”<a id="FNanchor_121" href="#Footnote_121" class="fnanchor">121</a> 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.<a id="FNanchor_122" href="#Footnote_122" class="fnanchor">122</a></p> - -<p>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.<span class="pagenum" id="Page_61">61</span> -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.<a id="FNanchor_123" href="#Footnote_123" class="fnanchor">123</a></p> - -<p>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.<a id="FNanchor_124" href="#Footnote_124" class="fnanchor">124</a></p> - -<p>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<span class="pagenum" id="Page_62">62</span> -make such taxes uniform throughout the United -States.<a id="FNanchor_125" href="#Footnote_125" class="fnanchor">125</a></p> - -<p>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.<a id="FNanchor_126" href="#Footnote_126" class="fnanchor">126</a></p> - -<hr /> - -<p><span class="pagenum" id="Page_63">63</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_V" class="vspace">CHAPTER V<br /> - -<span class="subhead">THE LAW OF COMMERCE</span></h2> -</div> - -<p>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.”<a id="FNanchor_127" href="#Footnote_127" class="fnanchor">127</a> 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.”<a id="FNanchor_128" href="#Footnote_128" class="fnanchor">128</a></p> - -<p>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<span class="pagenum" id="Page_64">64</span> -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.<a id="FNanchor_129" href="#Footnote_129" class="fnanchor">129</a> -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.</p> - -<p>50. In defining national jurisdiction and State -jurisdiction over commerce, two propositions are -fundamental:</p> - -<p>(1) The Constitution of the United States is the -supreme law of the land.<a id="FNanchor_130" href="#Footnote_130" class="fnanchor">130</a></p> - -<p>(2) It is the province and duty of the judicial -department to say what the law is.<a id="FNanchor_131" href="#Footnote_131" class="fnanchor">131</a></p> - -<p>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<span class="pagenum" id="Page_65">65</span> -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.</p> - -<p>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:</p> - -<table class="b0 tight" summary="alternative wordings"> - <tr> - <td class="tdl middle" rowspan="2">If we measure the power of</td> - <td class="tdl middle tall" rowspan="2">{</td> - <td class="tdl">taxation</td> - <td class="tdl middle tall" rowspan="2">}</td></tr> - <tr> - <td class="tdl locked">“regulating commerce”</td></tr> -</table> - -<p class="p0 b0 in0">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</p> - -<table class="p0 b0 tight" summary="alternative wordings"> - <tr> - <td class="tdl middle tall" rowspan="2">{</td> - <td class="tdl">taxing the people and property of the State</td> - <td class="tdl middle tall" rowspan="2">}</td></tr> - <tr> - <td class="tdl">“regulating the commerce of the State”</td></tr> -</table> - -<p class="p0 in0">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<span class="pagenum" id="Page_66">66</span> -States, and safe for the Union. We are relieved, as we -ought to be, from clashing sovereignty; from interfering -powers.<a id="FNanchor_132" href="#Footnote_132" class="fnanchor">132</a></p> - -<p>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.<a id="FNanchor_133" href="#Footnote_133" class="fnanchor">133</a></p> - -<p>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<span class="pagenum" id="Page_67">67</span> -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?</p> - -<p>53. Commerce is intercourse,<a id="FNanchor_134" href="#Footnote_134" class="fnanchor">134</a> and comprehends -traffic, navigation, telegraphic intercommunication, -and consequently, communication by telephone, wireless, -or signals.<a id="FNanchor_135" href="#Footnote_135" class="fnanchor">135</a></p> - -<p>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<span class="pagenum" id="Page_68">68</span> -“sovereign.”<a id="FNanchor_136" href="#Footnote_136" class="fnanchor">136</a> 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.<a id="FNanchor_137" href="#Footnote_137" class="fnanchor">137</a></p> - -<p>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.<a id="FNanchor_138" href="#Footnote_138" class="fnanchor">138</a> 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<span class="pagenum" id="Page_69">69</span> -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.</p> - -<p>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;</p> - -<p><span class="pagenum" id="Page_70">70</span></p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_139" href="#Footnote_139" class="fnanchor">139</a></p></blockquote> - -<p class="in0">Tested by this principle, any State laws conflicting -with national immigration laws are unconstitutional.</p> - -<p>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<span class="pagenum" id="Page_71">71</span> -clause. Vessels engaged in such commerce are described -as “the public property of the nation, and -subject to all the requisite legislation of Congress.”<a id="FNanchor_140" href="#Footnote_140" class="fnanchor">140</a></p> - -<p>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.<a id="FNanchor_141" href="#Footnote_141" class="fnanchor">141</a></p> - -<p>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.<a id="FNanchor_142" href="#Footnote_142" class="fnanchor">142</a> 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.<a id="FNanchor_143" href="#Footnote_143" class="fnanchor">143</a></p> - -<p><span class="pagenum" id="Page_72">72</span> -57. But in the exercise of this power to regulate -commerce Congress has legislated “to protect trade -and commerce against unlawful restraints and -monopolies.”<a id="FNanchor_144" href="#Footnote_144" class="fnanchor">144</a> 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.<a id="FNanchor_145" href="#Footnote_145" class="fnanchor">145</a> 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.<a id="FNanchor_146" href="#Footnote_146" class="fnanchor">146</a> -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,<span class="pagenum" id="Page_73">73</span> -as soon as the article manufactured becomes -an article of commerce among the several States, -then it is subject to regulation by Congress.</p> - -<p>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.<a id="FNanchor_147" href="#Footnote_147" class="fnanchor">147</a></p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_148" href="#Footnote_148" class="fnanchor">148</a></p></blockquote> - -<p class="in0">Assumption of power such as this by Congress would -conflict with the residuary powers of the States,—powers -over intrastate commerce, and that vast<span class="pagenum" id="Page_74">74</span> -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.</p> - -<p>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.<a id="FNanchor_149" href="#Footnote_149" class="fnanchor">149</a> 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.<a id="FNanchor_150" href="#Footnote_150" class="fnanchor">150</a></p> - -<p>But a license fee exacted by a State law, from a -vessel engaged in commerce is a tax for the use of<span class="pagenum" id="Page_75">75</span> -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.<a id="FNanchor_151" href="#Footnote_151" class="fnanchor">151</a> -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.<a id="FNanchor_152" href="#Footnote_152" class="fnanchor">152</a></p> - -<p>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.<a id="FNanchor_153" href="#Footnote_153" class="fnanchor">153</a></p> - -<p>Were the State to tax the importer as such, this<span class="pagenum" id="Page_76">76</span> -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.”<a id="FNanchor_154" href="#Footnote_154" class="fnanchor">154</a></p> - -<p>61. The object in delegating to Congress the -power to regulate commerce—a delegation without -limitations—was to insure uniformity against discriminating -State legislation.<a id="FNanchor_155" href="#Footnote_155" class="fnanchor">155</a> 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.<a id="FNanchor_156" href="#Footnote_156" class="fnanchor">156</a> 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<span class="pagenum" id="Page_77">77</span> -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.<a id="FNanchor_157" href="#Footnote_157" class="fnanchor">157</a> 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<span class="pagenum" id="Page_78">78</span> -(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.<a id="FNanchor_158" href="#Footnote_158" class="fnanchor">158</a></p> - -<p>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.<a id="FNanchor_159" href="#Footnote_159" class="fnanchor">159</a> 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.”<a id="FNanchor_160" href="#Footnote_160" class="fnanchor">160</a> 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<span class="pagenum" id="Page_79">79</span> -under which their business is carried on, -or by regulation, destroy their business entirely.<a id="FNanchor_161" href="#Footnote_161" class="fnanchor">161</a> -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.<a id="FNanchor_162" href="#Footnote_162" class="fnanchor">162</a> 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.<a id="FNanchor_163" href="#Footnote_163" class="fnanchor">163</a> 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.<a id="FNanchor_164" href="#Footnote_164" class="fnanchor">164</a></p> - -<p>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<span class="pagenum" id="Page_80">80</span> -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.”<a id="FNanchor_165" href="#Footnote_165" class="fnanchor">165</a> 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.</p> - -<p>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,<a id="FNanchor_166" href="#Footnote_166" class="fnanchor">166</a> 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<span class="pagenum" id="Page_81">81</span> -internal affairs, in doing which they exercise powers -not surrendered to the general government.”<a id="FNanchor_167" href="#Footnote_167" class="fnanchor">167</a></p> - -<p>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.”<a id="FNanchor_168" href="#Footnote_168" class="fnanchor">168</a> 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.”<a id="FNanchor_169" href="#Footnote_169" class="fnanchor">169</a> 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.<a id="FNanchor_170" href="#Footnote_170" class="fnanchor">170</a> Such repugnancy is effected by a -State law levying a tax on tonnage, and is void.<a id="FNanchor_171" href="#Footnote_171" class="fnanchor">171</a> -But a charge for mooring or landing at a wharf, is -not a tax on tonnage, but a charge for services -rendered;<a id="FNanchor_172" href="#Footnote_172" class="fnanchor">172</a> 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<span class="pagenum" id="Page_82">82</span> -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.</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_173" href="#Footnote_173" class="fnanchor">173</a></p></blockquote> - -<p>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<span class="pagenum" id="Page_83">83</span> -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.<a id="FNanchor_174" href="#Footnote_174" class="fnanchor">174</a> 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.”<a id="FNanchor_175" href="#Footnote_175" class="fnanchor">175</a></p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_84">84</span> -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<a id="FNanchor_176" href="#Footnote_176" class="fnanchor">176</a> -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.”<a id="FNanchor_177" href="#Footnote_177" class="fnanchor">177</a> 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.<a id="FNanchor_178" href="#Footnote_178" class="fnanchor">178</a></p> - -<p>67. So, too, where a labor organization sought by -a boycott to prevent the manufacture of articles intended<span class="pagenum" id="Page_85">85</span> -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.<a id="FNanchor_179" href="#Footnote_179" class="fnanchor">179</a> 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.</p> - -<p>68. There is such a thing as the peace of the -United States.<a id="FNanchor_180" href="#Footnote_180" class="fnanchor">180</a> 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<span class="pagenum" id="Page_86">86</span> -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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_87">87</span> -mailable—are commerce in the sense in which -that word is used in the Constitution.</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_181" href="#Footnote_181" class="fnanchor">181</a></p></blockquote> - -<p>Under the commerce clause Congress</p> - -<blockquote> - -<p class="in0">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.</p></blockquote> - -<p class="in0">And “interstate” also includes “foreign commerce.”<a id="FNanchor_182" href="#Footnote_182" class="fnanchor">182</a></p> - -<p>All the decisions</p> - -<blockquote> - -<p class="in0">illustrate the principle that Congress in the exercise of -its paramount power may prevent the common instrumentalities<span class="pagenum" id="Page_88">88</span> -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.<a id="FNanchor_183" href="#Footnote_183" class="fnanchor">183</a></p></blockquote> - -<hr /> - -<p><span class="pagenum" id="Page_89">89</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_VI" class="vspace">CHAPTER VI<br /> - -<span class="subhead">THE LAW OF CONTRACTS AND PROPERTY</span></h2> -</div> - -<p>70. The supreme law of the land provides that no -State shall pass any law impairing the obligation of -contracts.<a id="FNanchor_184" href="#Footnote_184" class="fnanchor">184</a> A contract is an agreement between -competent persons to do or not to do a certain thing; -the law is part of the contract.<a id="FNanchor_185" href="#Footnote_185" class="fnanchor">185</a> 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.<a id="FNanchor_186" href="#Footnote_186" class="fnanchor">186</a> 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.</p> - -<p>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<span class="pagenum" id="Page_90">90</span> -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.<a id="FNanchor_187" href="#Footnote_187" class="fnanchor">187</a> 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.<a id="FNanchor_188" href="#Footnote_188" class="fnanchor">188</a> 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.<a id="FNanchor_189" href="#Footnote_189" class="fnanchor">189</a></p> - -<p>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<span class="pagenum" id="Page_91">91</span> -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.<a id="FNanchor_190" href="#Footnote_190" class="fnanchor">190</a></p> - -<p>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.<a id="FNanchor_191" href="#Footnote_191" class="fnanchor">191</a></p> - -<p>74. The charters of private charitable institutions -are contracts within the letter of the Constitution, -and their obligation cannot be impaired without -violating it.<a id="FNanchor_192" href="#Footnote_192" class="fnanchor">192</a> 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.<a id="FNanchor_193" href="#Footnote_193" class="fnanchor">193</a></p> - -<p>75. The police power of the State extends to<span class="pagenum" id="Page_92">92</span> -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.</p> - -<blockquote> - -<p>They belong emphatically to that class of objects -which demand the application of the maxim, <i xml:lang="la" lang="la">salus -populi suprema lex</i>; 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.<a id="FNanchor_194" href="#Footnote_194" class="fnanchor">194</a></p></blockquote> - -<p class="in0">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.<a id="FNanchor_195" href="#Footnote_195" class="fnanchor">195</a> -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.<a id="FNanchor_196" href="#Footnote_196" class="fnanchor">196</a> -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<span class="pagenum" id="Page_93">93</span> -their properly constituted agencies may exercise -powers as the public good may require.<a id="FNanchor_197" href="#Footnote_197" class="fnanchor">197</a> 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.<a id="FNanchor_198" href="#Footnote_198" class="fnanchor">198</a></p> - -<p>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.<a id="FNanchor_199" href="#Footnote_199" class="fnanchor">199</a></p> - -<p>77. The principle involved in the obligation of -contracts is clearly set forth by the Supreme -Court:</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_94">94</span> -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.<a id="FNanchor_200" href="#Footnote_200" class="fnanchor">200</a></p></blockquote> - -<p><span class="pagenum" id="Page_95">95</span> -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<a id="FNanchor_201" href="#Footnote_201" class="fnanchor">201</a> and in sundry bankruptcy cases.<a id="FNanchor_202" href="#Footnote_202" class="fnanchor">202</a> -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, -<i xml:lang="la" lang="la">salus populi suprema lex</i>, in exercise of which at the -discretion of Congress, the obligation of contracts -must yield to the higher obligation of the general -welfare.<a id="FNanchor_203" href="#Footnote_203" class="fnanchor">203</a></p> - -<p>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.<a id="FNanchor_204" href="#Footnote_204" class="fnanchor">204</a> -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,<a id="FNanchor_205" href="#Footnote_205" class="fnanchor">205</a><span class="pagenum" id="Page_96">96</span> -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, <i xml:lang="la" lang="la">inter alia</i>, 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.<a id="FNanchor_206" href="#Footnote_206" class="fnanchor">206</a></p> - -<p><span class="pagenum" id="Page_97">97</span> -But the Fourteenth Amendment does not deprive -the States of their police power over “subjects within -their jurisdiction.”<a id="FNanchor_207" href="#Footnote_207" class="fnanchor">207</a></p> - -<p>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.<a id="FNanchor_208" href="#Footnote_208" class="fnanchor">208</a> -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<span class="pagenum" id="Page_98">98</span> -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.<a id="FNanchor_209" href="#Footnote_209" class="fnanchor">209</a> Such manufacture or -sale, or its prohibition is wholly within the power -of the State to control.<a id="FNanchor_210" href="#Footnote_210" class="fnanchor">210</a></p> - -<p>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 <em>contract</em> is used in -the Constitution.<a id="FNanchor_211" href="#Footnote_211" class="fnanchor">211</a> 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.</p> - -<blockquote> - -<p>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.<a id="FNanchor_212" href="#Footnote_212" class="fnanchor">212</a></p></blockquote> - -<p>81. The provision of the Constitution that private -property shall not be taken for public use without -<span class="pagenum" id="Page_99">99</span>compensation is a limitation on the power of the -federal government, and not on the States,<a id="FNanchor_213" href="#Footnote_213" class="fnanchor">213</a> but -the State constitutions usually include the limitation -in their Bills of Rights: the principle is -“essentially a part of American constitutional -law.”<a id="FNanchor_214" href="#Footnote_214" class="fnanchor">214</a></p> - -<p>82. For consequential injury resulting from the -exercise of the power of eminent domain there is no -redress,<a id="FNanchor_215" href="#Footnote_215" class="fnanchor">215</a> 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.<a id="FNanchor_216" href="#Footnote_216" class="fnanchor">216</a> The -principle here is that,</p> - -<blockquote> - -<p>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.</p></blockquote> - -<p class="in0">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<span class="pagenum" id="Page_100">100</span> -damages to a person when the public already has a -rightful use of the property.<a id="FNanchor_217" href="#Footnote_217" class="fnanchor">217</a></p> - -<p>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.<a id="FNanchor_218" href="#Footnote_218" class="fnanchor">218</a> 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.</p> - -<blockquote> - -<p class="in0">The proper view of the right of eminent domain seems -to be, that it is a right belonging to a sovereignty to take<span class="pagenum" id="Page_101">101</span> -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.<a id="FNanchor_219" href="#Footnote_219" class="fnanchor">219</a></p></blockquote> - -<hr /> - -<p><span class="pagenum" id="Page_102">102</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_VII" class="vspace">CHAPTER VII<br /> - -<span class="subhead">THE LAW OF THE EXECUTIVE POWER</span></h2> -</div> - -<p>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<span class="pagenum" id="Page_103">103</span> -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.<a id="FNanchor_220" href="#Footnote_220" class="fnanchor">220</a></p> - -<p>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.”<a id="FNanchor_221" href="#Footnote_221" class="fnanchor">221</a> 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.</p> - -<p>86. The executive power of the United States -is vested in a President, and the faithful exercise of<span class="pagenum" id="Page_104">104</span> -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<a id="FNanchor_222" href="#Footnote_222" class="fnanchor">222</a> but Congress alone can declare war.<a id="FNanchor_223" href="#Footnote_223" class="fnanchor">223</a> -He participates in legislation, and possesses the -veto power (which constitutionally comprises that -participation)<a id="FNanchor_224" href="#Footnote_224" class="fnanchor">224</a> but unlike the governor, under some -later constitutions, he cannot veto a particular item -in an appropriation bill.<a id="FNanchor_225" href="#Footnote_225" class="fnanchor">225</a></p> - -<p>He makes treaties, provided two thirds of the -Senators present concur,<a id="FNanchor_226" href="#Footnote_226" class="fnanchor">226</a> and the control of our -foreign relations is in his hands.<a id="FNanchor_227" href="#Footnote_227" class="fnanchor">227</a> 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<span class="pagenum" id="Page_105">105</span> -and administrative offices, under the Constitution,<a id="FNanchor_228" href="#Footnote_228" class="fnanchor">228</a> -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.</p> - -<p>87. In the “Executive Department” (an expression -known to the Constitution<a id="FNanchor_229" href="#Footnote_229" class="fnanchor">229</a>), 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.”<a id="FNanchor_230" href="#Footnote_230" class="fnanchor">230</a></p> - -<p>88. The President cannot be enjoined from dismissing,<span class="pagenum" id="Page_106">106</span> -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.</p> - -<p>89. Thus the President has power to protect a -federal judge from threatened personal attack.<a id="FNanchor_231" href="#Footnote_231" class="fnanchor">231</a> -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<span class="pagenum" id="Page_107">107</span> -is ministerial and every ministerial office in the -government of the United States is subject to inquiry -through a court of law.<a id="FNanchor_232" href="#Footnote_232" class="fnanchor">232</a></p> - -<p>Thus the executive power of the United States is -not subject to the legislative power.<a id="FNanchor_233" href="#Footnote_233" class="fnanchor">233</a> 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?</p> - -<p>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.<span class="pagenum" id="Page_108">108</span> -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.</p> - -<p>91. The constitutional provision that when the -Senate sits as a Court of Impeachment the Chief -Justice of the United States shall preside,<a id="FNanchor_234" href="#Footnote_234" class="fnanchor">234</a> 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, <i xml:lang="la" lang="la">ex officio</i>, the Vice-President; the other, -the President <i xml:lang="la" lang="la">pro tempore</i>, who is a Senator.<a id="FNanchor_235" href="#Footnote_235" class="fnanchor">235</a></p> - -<p>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 -<i xml:lang="la" lang="la">pro tempore</i> of the Senate, votes in the Court of -Impeachment as a Senator. If either the Vice-President, -or the President <i xml:lang="la" lang="la">pro tempore</i> presided over -the Court of Impeachment, when a President is on -trial, the principle of freedom from official, or one<span class="pagenum" id="Page_109">109</span> -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.</p> - -<p>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.</p> - -<p>93. It is evident that the power of the President -of the United States is very great.</p> - -<blockquote> - -<p>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,<span class="pagenum" id="Page_110">110</span> -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.<a id="FNanchor_236" href="#Footnote_236" class="fnanchor">236</a> -Practically the President has the nation in his hands.<a id="FNanchor_237" href="#Footnote_237" class="fnanchor">237</a></p></blockquote> - -<p>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.</p> - -<blockquote> - -<p>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.<a id="FNanchor_238" href="#Footnote_238" class="fnanchor">238</a></p></blockquote> - -<p class="in0">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.”<a id="FNanchor_239" href="#Footnote_239" class="fnanchor">239</a></p> - -<p><span class="pagenum" id="Page_111">111</span> -In application of this principle</p> - -<blockquote> - -<p>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.<a id="FNanchor_240" href="#Footnote_240" class="fnanchor">240</a></p></blockquote> - -<p>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 “<i xml:lang="la" lang="la">mandamus</i> will not -issue to the Governor to compel the performance of -<em>any</em> duty pertaining to his office, whether political -or merely ministerial; whether commanded by the -constitution or by some law passed on the subject.”<a id="FNanchor_241" href="#Footnote_241" class="fnanchor">241</a></p> - -<p><span class="pagenum" id="Page_112">112</span> -The principle of American constitutional law as to -executive and ministerial powers is thus stated:</p> - -<blockquote> - -<p>The Court will not interfere by <i xml:lang="la" lang="la">mandamus</i> 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 <i xml:lang="la" lang="la">mandamus</i> may -be issued to compel them.<a id="FNanchor_242" href="#Footnote_242" class="fnanchor">242</a></p></blockquote> - -<p class="p2 smaller"><span class="smcap">Note</span>—Hamilton in <cite>The Federalist</cite> 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 <cite>Commentaries on the Constitution</cite>. In -<cite>Political Science and Constitutional Law</cite> (2 vols. 1891), John W. -Burgess makes a critical and comparative study of executive power. -J. H. Finley and J. F. Sanderson in their <cite>The American Executive -and Executive Methods</cite> (1908), present the operation of executive -power, State and federal, at the present time.</p> - -<hr /> - -<p><span class="pagenum" id="Page_113">113</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_VIII" class="vspace">CHAPTER VIII<br /> - -<span class="subhead">THE LAW OF JUDICIAL POWER</span></h2> -</div> - -<p>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.<a id="FNanchor_243" href="#Footnote_243" class="fnanchor">243</a> 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 <em>supreme</em>, and -that of the inferior courts in the word <em>inferior</em>. -Congress can neither increase nor decrease this<span class="pagenum" id="Page_114">114</span> -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:</p> - -<blockquote> - -<p>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.<a id="FNanchor_244" href="#Footnote_244" class="fnanchor">244</a></p></blockquote> - -<p>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.<a id="FNanchor_245" href="#Footnote_245" class="fnanchor">245</a> 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.</p> - -<p>97. This Amendment is a limitation of the -judicial power delegated to the government of the<span class="pagenum" id="Page_115">115</span> -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,”<a id="FNanchor_246" href="#Footnote_246" class="fnanchor">246</a> 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.<a id="FNanchor_247" href="#Footnote_247" class="fnanchor">247</a></p> - -<p>98. It will be observed that the judicial power -thus delegated to the United States includes jurisdiction -over cases arising outside the domain strictly<span class="pagenum" id="Page_116">116</span> -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.</p> - -<p>99. <cite>The Federalist</cite> sets forth the principle here -involved:</p> - -<blockquote> - -<p>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.<a id="FNanchor_248" href="#Footnote_248" class="fnanchor">248</a></p></blockquote> - -<p>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.<a id="FNanchor_249" href="#Footnote_249" class="fnanchor">249</a></p> - -<p><span class="pagenum" id="Page_117">117</span> -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.<a id="FNanchor_250" href="#Footnote_250" class="fnanchor">250</a></p> - -<p>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.”<a id="FNanchor_251" href="#Footnote_251" class="fnanchor">251</a> The principle here is that the -whole is greater than a part;</p> - -<blockquote> - -<p class="in0">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.”<a id="FNanchor_252" href="#Footnote_252" class="fnanchor">252</a> On the principle that every -government ought to possess the means of executing its -own provisions by its own authority,</p></blockquote> - -<p class="in0">it follows that it is necessary that the construction -of the Constitution,—the supreme <span class="locked">law,—</span></p> - -<blockquote> - -<p class="in0">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<span class="pagenum" id="Page_118">118</span> -official existence to the Union, will never be likely to -feel any bias inauspicious to the principles on which it is -founded.<a id="FNanchor_253" href="#Footnote_253" class="fnanchor">253</a></p></blockquote> - -<p>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.<a id="FNanchor_254" href="#Footnote_254" class="fnanchor">254</a> 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<span class="pagenum" id="Page_119">119</span> -the Union is “to establish justice,” and precision -in the whole matter of exercise of judicial power is -essential.</p> - -<p>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.”<a id="FNanchor_255" href="#Footnote_255" class="fnanchor">255</a> 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.”<a id="FNanchor_256" href="#Footnote_256" class="fnanchor">256</a> 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.”<a id="FNanchor_257" href="#Footnote_257" class="fnanchor">257</a> 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.”<a id="FNanchor_258" href="#Footnote_258" class="fnanchor">258</a> The rank of the parties is the<span class="pagenum" id="Page_120">120</span> -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.<a id="FNanchor_259" href="#Footnote_259" class="fnanchor">259</a> 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.<a id="FNanchor_260" href="#Footnote_260" class="fnanchor">260</a> 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<span class="pagenum" id="Page_121">121</span> -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.</p> - -<p>103. The State for some purposes retains its -sovereignty,<a id="FNanchor_261" href="#Footnote_261" class="fnanchor">261</a> as in the exercise of its police power.<a id="FNanchor_262" href="#Footnote_262" class="fnanchor">262</a> -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.</p> - -<p><span class="pagenum" id="Page_122">122</span> -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.<a id="FNanchor_263" href="#Footnote_263" class="fnanchor">263</a> -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.</p> - -<p>105. The inferior courts, established by Congress,<span class="pagenum" id="Page_123">123</span> -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.</p> - -<p><span class="pagenum" id="Page_124">124</span> -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.</p> - -<p>107. The essential power of any federal court is<span class="pagenum" id="Page_125">125</span> -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,”<a id="FNanchor_264" href="#Footnote_264" class="fnanchor">264</a> 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.<a id="FNanchor_265" href="#Footnote_265" class="fnanchor">265</a></p> - -<p>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<span class="pagenum" id="Page_126">126</span> -inferior courts, namely, the Circuit Courts, the -District Courts, or the Court of Claims. Neither -are they State courts.</p> - -<p>The Constitution being made only for the people -of the United States,—that is, for the people of the -United States inhabiting States,<a id="FNanchor_266" href="#Footnote_266" class="fnanchor">266</a> 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.<a id="FNanchor_267" href="#Footnote_267" class="fnanchor">267</a> -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.</p> - -<p>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<span class="pagenum" id="Page_127">127</span> -the court. Where the court was asked to refer to the -debates in Congress to determine the meaning of the -act, it was said:</p> - -<blockquote> - -<p>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.<a id="FNanchor_268" href="#Footnote_268" class="fnanchor">268</a></p> - -<p>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.</p></blockquote> - -<p>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.<a id="FNanchor_269" href="#Footnote_269" class="fnanchor">269</a> 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<span class="pagenum" id="Page_128">128</span> -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.</p> - -<blockquote> - -<p>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.<a id="FNanchor_270" href="#Footnote_270" class="fnanchor">270</a></p></blockquote> - -<p>The right to decide such a political question is in -Congress and not in the courts.<a id="FNanchor_271" href="#Footnote_271" class="fnanchor">271</a></p> - -<p>111. The final authority of American courts of -law to construe statutes and constitutions is distinctive. -The court pronounces a law unconstitutional<span class="pagenum" id="Page_129">129</span> -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:</p> - -<blockquote> - -<p>The Government of the United States has been emphatically -termed a government of laws and not of men.</p> - -<p>The Constitution is the supreme law of the land.</p> - -<p><em>It is emphatically the province and duty of the judicial -department to say what the law is.</em><a id="FNanchor_272" href="#Footnote_272" class="fnanchor">272</a></p></blockquote> - -<p>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:</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_130">130</span> -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<span class="pagenum" id="Page_131">131</span> -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.<a id="FNanchor_273" href="#Footnote_273" class="fnanchor">273</a></p></blockquote> - -<p class="in0">The conclusion of the whole matter is:</p> - -<blockquote> - -<p>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.<a id="FNanchor_274" href="#Footnote_274" class="fnanchor">274</a></p></blockquote> - -<p>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.<a id="FNanchor_275" href="#Footnote_275" class="fnanchor">275</a> The court in saying what the law is, -that is, what it means, does not attempt to say what<span class="pagenum" id="Page_132">132</span> -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.”<a id="FNanchor_276" href="#Footnote_276" class="fnanchor">276</a> 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.”</p> - -<p>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.</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_133">133</span> -interpretation of the Constitution by the Supreme -Court.<a id="FNanchor_277" href="#Footnote_277" class="fnanchor">277</a></p></blockquote> - -<p class="in0">Yet,—so remarks the Supreme Court <span class="locked">itself,—</span></p> - -<blockquote> - -<p>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.<a id="FNanchor_278" href="#Footnote_278" class="fnanchor">278</a></p></blockquote> - -<p>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<span class="pagenum" id="Page_134">134</span> -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.</p> - -<p>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<span class="pagenum" id="Page_135">135</span> -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?”</p> - -<p>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.</p> - -<p>115. The three departments of government are -distinct.</p> - -<blockquote> - -<p>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.<a id="FNanchor_279" href="#Footnote_279" class="fnanchor">279</a></p></blockquote> - -<p class="in0">This principle of separation of powers, or offices, of -government, is, for many purposes, not merely<span class="pagenum" id="Page_136">136</span> -fundamental, but primary, in American constitutional -law. A department of government can execute -only the offices, or powers, delegated to it,<a id="FNanchor_280" href="#Footnote_280" class="fnanchor">280</a> but the -Legislature cannot impose other than judicial duties -upon courts of law, or judicial duties upon other -than the judiciary.<a id="FNanchor_281" href="#Footnote_281" class="fnanchor">281</a></p> - -<p>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.<a id="FNanchor_282" href="#Footnote_282" class="fnanchor">282</a> 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.</p> - -<p>116. The original jurisdiction of the Supreme -Court is co-extensive with the judicial power delegated -by the Constitution.<a id="FNanchor_283" href="#Footnote_283" class="fnanchor">283</a> Congress has power -to give the inferior courts of the United States<span class="pagenum" id="Page_137">137</span> -“original jurisdiction in any case to which the -appellate jurisdiction extends.”<a id="FNanchor_284" href="#Footnote_284" class="fnanchor">284</a></p> - -<p>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.<a id="FNanchor_285" href="#Footnote_285" class="fnanchor">285</a></p> - -<p>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.”<a id="FNanchor_286" href="#Footnote_286" class="fnanchor">286</a> -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.</p> - -<p>The admiralty jurisdiction of the United States -extends over all water on which commerce is carried -on between different States, or nations.<a id="FNanchor_287" href="#Footnote_287" class="fnanchor">287</a> The -principle of national commercial jurisdiction is -essentially that of national political jurisdiction, a -jurisdiction thus declared:</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_138">138</span> -functions that belong to it. This necessarily involves the -power to command obedience to its laws....<a id="FNanchor_288" href="#Footnote_288" class="fnanchor">288</a></p></blockquote> - -<p>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.<a id="FNanchor_289" href="#Footnote_289" class="fnanchor">289</a> 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.”<a id="FNanchor_290" href="#Footnote_290" class="fnanchor">290</a> 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.</p> - -<blockquote> - -<p>The States of the Union have agreed in the Constitution -that the judicial power of the United States shall -extend to <em>all</em> cases arising under the Constitution, laws,<span class="pagenum" id="Page_139">139</span> -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.<a id="FNanchor_291" href="#Footnote_291" class="fnanchor">291</a></p></blockquote> - -<p>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.”<a id="FNanchor_292" href="#Footnote_292" class="fnanchor">292</a> This -principle is of far-reaching effect; no party can be -exempt.</p> - -<p>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<span class="pagenum" id="Page_140">140</span> -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.”<a id="FNanchor_293" href="#Footnote_293" class="fnanchor">293</a></p> - -<p>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.</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_141">141</span> -the public debts, would be attended with greater evils -than such failure can cause.<a id="FNanchor_294" href="#Footnote_294" class="fnanchor">294</a></p></blockquote> - -<p>118. The judicial power of the United States -extends, under the Constitution to controversies -between <em>citizens of different States</em> and the Judiciary -Act confers jurisdiction strictly within the meaning -of the term.<a id="FNanchor_295" href="#Footnote_295" class="fnanchor">295</a></p> - -<p><dfn>States</dfn>, 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<span class="pagenum" id="Page_142">142</span> -United States. Of course the limitation applies to -artificial persons,—corporations created by a State.</p> - -<blockquote> - -<p>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.<a id="FNanchor_296" href="#Footnote_296" class="fnanchor">296</a></p></blockquote> - -<p>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.”</p> - -<blockquote> - -<p>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 xml:lang="la" lang="la">i. e.</i> 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<span class="pagenum" id="Page_143">143</span> -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.<a id="FNanchor_297" href="#Footnote_297" class="fnanchor">297</a></p></blockquote> - -<p class="in0">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.<a id="FNanchor_298" href="#Footnote_298" class="fnanchor">298</a></p> - -<blockquote> - -<p>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 <i xml:lang="la" lang="la">habeas corpus</i>, in advance of any proceedings in -the courts of the State to test the validity of his arrest or -detention.<a id="FNanchor_299" href="#Footnote_299" class="fnanchor">299</a></p></blockquote> - -<p><span class="pagenum" id="Page_144">144</span> -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.”<a id="FNanchor_300" href="#Footnote_300" class="fnanchor">300</a> 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.<a id="FNanchor_301" href="#Footnote_301" class="fnanchor">301</a> 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<span class="pagenum" id="Page_145">145</span> -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.”<a id="FNanchor_302" href="#Footnote_302" class="fnanchor">302</a></p> - -<p>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</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_303" href="#Footnote_303" class="fnanchor">303</a></p></blockquote> - -<p class="p2 smaller"><span class="smcap">Note</span>: For an account of acts of Congress declared unconstitutional -by the Supreme Court see <cite>The Supreme Court and Unconstitutional -Legislation</cite>, B. F. Moore, Columbia University Studies, vol. -liv., No. 2, 1913.</p> - -<hr /> - -<p><span class="pagenum" id="Page_146">146</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_IX" class="vspace">CHAPTER IX<br /> - -<span class="subhead">THE LAW OF STATE COMITY, TERRITORIES AND POSSESSIONS</span></h2> -</div> - -<p>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.<a id="FNanchor_304" href="#Footnote_304" class="fnanchor">304</a></p> - -<p>In so far as a State possesses jurisdiction it may -exercise authority.<a id="FNanchor_305" href="#Footnote_305" class="fnanchor">305</a> 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<span class="pagenum" id="Page_147">147</span> -State.<a id="FNanchor_306" href="#Footnote_306" class="fnanchor">306</a> 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 (<abbr xml:lang="la" lang="la">i. e.</abbr>, 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.”<a id="FNanchor_307" href="#Footnote_307" class="fnanchor">307</a></p> - -<p>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.”<a id="FNanchor_308" href="#Footnote_308" class="fnanchor">308</a></p> - -<p>121. This principle is disclosed by examination -of the States as civil and political entities, for:</p> - -<blockquote> - -<p>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.<a id="FNanchor_309" href="#Footnote_309" class="fnanchor">309</a></p></blockquote> - -<p class="in0"><span class="pagenum" id="Page_148">148</span> -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.<a id="FNanchor_310" href="#Footnote_310" class="fnanchor">310</a></p> - -<p>But national courts are bound to take notice -without proof of the laws of each of the States.<a id="FNanchor_311" href="#Footnote_311" class="fnanchor">311</a> -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.”<a id="FNanchor_312" href="#Footnote_312" class="fnanchor">312</a> 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.<a id="FNanchor_313" href="#Footnote_313" class="fnanchor">313</a> In -government, jurisdiction is co-extensive with sovereignty. -Faith, credit, public acts, records, or judicial -proceedings that are valid in a State are, when<span class="pagenum" id="Page_149">149</span> -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.”<a id="FNanchor_314" href="#Footnote_314" class="fnanchor">314</a></p> - -<p>122. The citizens of each State are entitled to all -privileges and immunities of citizens in the several -States.<a id="FNanchor_315" href="#Footnote_315" class="fnanchor">315</a> 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.<a id="FNanchor_316" href="#Footnote_316" class="fnanchor">316</a> 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.”<a id="FNanchor_317" href="#Footnote_317" class="fnanchor">317</a> Thus a State may admit or exclude -foreign corporations, and the corporation cannot -maintain a claim of citizenship to right to enter the -State.</p> - -<p>123. The words “privileges and immunities of -citizens” are of comprehensive meaning as determined<span class="pagenum" id="Page_150">150</span> -by the courts from time to time as issues -(cases or controversies) come before them. The -clause in the Constitution</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_318" href="#Footnote_318" class="fnanchor">318</a></p></blockquote> - -<p class="in0">Or, as the principle is further stated: the sole purpose -of the constitutional provision is</p> - -<blockquote> - -<p class="in0">to declare to the several States, that whatever those -rights (<abbr xml:lang="la" lang="la">i. e.</abbr>, 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.<a id="FNanchor_319" href="#Footnote_319" class="fnanchor">319</a></p></blockquote> - -<p>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.</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_151">151</span> -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.<a id="FNanchor_320" href="#Footnote_320" class="fnanchor">320</a></p></blockquote> - -<p>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.<a id="FNanchor_321" href="#Footnote_321" class="fnanchor">321</a></p> - -<p>Fugitives from justice escaping from a State or -Territory to another are subject to extradition.<a id="FNanchor_322" href="#Footnote_322" class="fnanchor">322</a> -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<span class="pagenum" id="Page_152">152</span> -established, the accused “shall be delivered up” as -the federal Constitution prescribes.<a id="FNanchor_323" href="#Footnote_323" class="fnanchor">323</a> The principle -here is that of State jurisdiction as limited by the -supreme law.</p> - -<p>125. But the question of powers, or rights, by extradition, -raises the question of right of asylum. Do</p> - -<blockquote> - -<p class="in0">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?<a id="FNanchor_324" href="#Footnote_324" class="fnanchor">324</a></p></blockquote> - -<p>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.<a id="FNanchor_325" href="#Footnote_325" class="fnanchor">325</a></p> - -<p><span class="pagenum" id="Page_153">153</span> -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.”<a id="FNanchor_326" href="#Footnote_326" class="fnanchor">326</a> 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.<a id="FNanchor_327" href="#Footnote_327" class="fnanchor">327</a> In the former, the -extradition depends upon treaty contract, or stipulation,<span class="pagenum" id="Page_154">154</span> -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.<a id="FNanchor_328" href="#Footnote_328" class="fnanchor">328</a></p> - -<p>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.”<a id="FNanchor_329" href="#Footnote_329" class="fnanchor">329</a> Thus the courts follow the political -authority.</p> - -<blockquote> - -<p>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.<a id="FNanchor_330" href="#Footnote_330" class="fnanchor">330</a></p></blockquote> - -<p class="in0">If the President errs, it is within the power of Congress -to apply the proper remedy. “The sovereignty<span class="pagenum" id="Page_155">155</span> -in every State resides in the people of that State, -and they may alter and change their form of government -at their own pleasure.”<a id="FNanchor_331" href="#Footnote_331" class="fnanchor">331</a> But the United -States guarantees to each a republican form of -government.<a id="FNanchor_332" href="#Footnote_332" class="fnanchor">332</a> “No particular government is designated -as republican, neither is the exact form to be -guaranteed in any manner especially designated.”<a id="FNanchor_333" href="#Footnote_333" class="fnanchor">333</a></p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_334" href="#Footnote_334" class="fnanchor">334</a></p></blockquote> - -<p class="in0">Conformably with the character of this federal -guarantee of the republican form, the Supreme Court -has decided that:</p> - -<blockquote> - -<p>In the Constitution the term <dfn>State</dfn> most frequently -expresses the combined idea ... of people, territory, -and government. A <em>State</em>, in the ordinary sense of the -Constitution, is a political community of free citizens, -occupying a territory of defined boundaries, and organized<span class="pagenum" id="Page_156">156</span> -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.<a id="FNanchor_335" href="#Footnote_335" class="fnanchor">335</a></p></blockquote> - -<p>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.<a id="FNanchor_336" href="#Footnote_336" class="fnanchor">336</a></p> - -<p>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<span class="pagenum" id="Page_157">157</span> -Legislatures of the States concerned, as well as of -Congress.<a id="FNanchor_337" href="#Footnote_337" class="fnanchor">337</a> 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.<a id="FNanchor_338" href="#Footnote_338" class="fnanchor">338</a> 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.<a id="FNanchor_339" href="#Footnote_339" class="fnanchor">339</a></p> - -<p>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.<a id="FNanchor_340" href="#Footnote_340" class="fnanchor">340</a> On June 16, 1906,<span class="pagenum" id="Page_158">158</span> -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.<a id="FNanchor_341" href="#Footnote_341" class="fnanchor">341</a></p> - -<p>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<span class="pagenum" id="Page_159">159</span> -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.</p> - -<p>131. Congress has power “to make all needful -rules and regulations respecting the territory and -other property belonging to the United States.”<a id="FNanchor_342" href="#Footnote_342" class="fnanchor">342</a> -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.”<a id="FNanchor_343" href="#Footnote_343" class="fnanchor">343</a></p> - -<p>In creating a territorial jurisdiction, Congress -exercises, but does not part with its powers. The -power to govern Territories is not conditioned. Such -Territories</p> - -<blockquote> - -<p class="in0">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<span class="pagenum" id="Page_160">160</span> -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.<a id="FNanchor_344" href="#Footnote_344" class="fnanchor">344</a></p></blockquote> - -<p>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.<a id="FNanchor_345" href="#Footnote_345" class="fnanchor">345</a></p> - -<p><span class="pagenum" id="Page_161">161</span></p> - -<blockquote> - -<p>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.<a id="FNanchor_346" href="#Footnote_346" class="fnanchor">346</a></p></blockquote> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_162">162</span> -rights which it is bound to respect.”<a id="FNanchor_347" href="#Footnote_347" class="fnanchor">347</a> What limitation -then, if any, is there on Congress, in exercising -its powers over such territory?</p> - -<p>The Court replies:</p> - -<blockquote> - -<p>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.<a id="FNanchor_348" href="#Footnote_348" class="fnanchor">348</a></p></blockquote> - -<p>But the power of Congress to govern Territories, -(“dependencies,” “outlying possessions”) is, by -present constitutional law, exercisable at the will of -Congress.<a id="FNanchor_349" href="#Footnote_349" class="fnanchor">349</a> The essential matter is of jurisdiction. -The United States is a sovereignty; for some purposes -the several States comprising the Union are sovereign,<a id="FNanchor_350" href="#Footnote_350" class="fnanchor">350</a> -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:<span class="pagenum" id="Page_163">163</span> -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.<a id="FNanchor_351" href="#Footnote_351" class="fnanchor">351</a></p> - -<hr /> - -<p><span class="pagenum" id="Page_164">164</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_X" class="vspace">CHAPTER X<br /> - -<span class="subhead">THE LAW OF LIMITATIONS</span></h2> -</div> - -<p>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 <em>limitations</em>; in the eighteenth century the -equivalent expression was “checks and balances.”<a id="FNanchor_352" href="#Footnote_352" class="fnanchor">352</a> -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.<a id="FNanchor_353" href="#Footnote_353" class="fnanchor">353</a> 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”)<span class="pagenum" id="Page_165">165</span> -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.</p> - -<p>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?</p> - -<p>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<span class="pagenum" id="Page_166">166</span> -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:</p> - -<blockquote> - -<p>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.<a id="FNanchor_354" href="#Footnote_354" class="fnanchor">354</a></p></blockquote> - -<p>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.”<a id="FNanchor_355" href="#Footnote_355" class="fnanchor">355</a> Each State appointing as its Legislature -may direct as many “electors” as the whole number -of its Senators and Representatives to which it is<span class="pagenum" id="Page_167">167</span> -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.<a id="FNanchor_356" href="#Footnote_356" class="fnanchor">356</a></p> - -<p>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.</p> - -<p>That the President (and by implication, the Vice-President) -must be native-born American citizens is a -constitutional limitation of candidacy.</p> - -<p>136. Of limitation of executive powers, the<span class="pagenum" id="Page_168">168</span> -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<a id="FNanchor_357" href="#Footnote_357" class="fnanchor">357</a> 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.”<a id="FNanchor_358" href="#Footnote_358" class="fnanchor">358</a> -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.</p> - -<p>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?</p> - -<blockquote> - -<p>The true distinction is between the delegation of -power to make the law, which necessarily involves a<span class="pagenum" id="Page_169">169</span> -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.<a id="FNanchor_359" href="#Footnote_359" class="fnanchor">359</a></p></blockquote> - -<p>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.</p> - -<p>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.<a id="FNanchor_360" href="#Footnote_360" class="fnanchor">360</a> Practically this check is utilized on political<span class="pagenum" id="Page_170">170</span> -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.</p> - -<p>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<span class="pagenum" id="Page_171">171</span> -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?</p> - -<p>139. The expressed limitations of the power of -Congress are that</p> - -<p>(1) All duties, imposts, and excises shall be uniform -throughout the United States.<a id="FNanchor_361" href="#Footnote_361" class="fnanchor">361</a></p> - -<p>(2) No appropriations of money to raise and -support armies shall be for a longer period than two -years.<a id="FNanchor_362" href="#Footnote_362" class="fnanchor">362</a></p> - -<p>(3) Militia officers must be appointed by the -respective States.<a id="FNanchor_363" href="#Footnote_363" class="fnanchor">363</a></p> - -<p>(4) No bill of attainder or <i xml:lang="la" lang="la">ex post facto</i> law shall -be passed.<a id="FNanchor_364" href="#Footnote_364" class="fnanchor">364</a></p> - -<p>(5) No tax or duty shall be laid on exports from -any State.<a id="FNanchor_365" href="#Footnote_365" class="fnanchor">365</a></p> - -<p>(6) No discrimination shall be made as to ports -of entry or the regulation of shipping.<a id="FNanchor_366" href="#Footnote_366" class="fnanchor">366</a></p> - -<p><span class="pagenum" id="Page_172">172</span> -(7) No title of nobility shall be granted by the -United States.<a id="FNanchor_367" href="#Footnote_367" class="fnanchor">367</a></p> - -<p>(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.<a id="FNanchor_368" href="#Footnote_368" class="fnanchor">368</a></p> - -<p>(9) Revenue bills shall originate in the House of -Representatives.<a id="FNanchor_369" href="#Footnote_369" class="fnanchor">369</a></p> - -<p>(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.<a id="FNanchor_370" href="#Footnote_370" class="fnanchor">370</a></p> - -<p>(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.”<a id="FNanchor_371" href="#Footnote_371" class="fnanchor">371</a></p> - -<p>(12) A bill of attainder of treason is not a bill of -attainder, but no bill of attainder of treason shall<span class="pagenum" id="Page_173">173</span> -work corruption of blood, or forfeiture except during -the life of the person attained.<a id="FNanchor_372" href="#Footnote_372" class="fnanchor">372</a></p> - -<p>(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.<a id="FNanchor_373" href="#Footnote_373" class="fnanchor">373</a></p> - -<p>(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.<a id="FNanchor_374" href="#Footnote_374" class="fnanchor">374</a></p> - -<p>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.<a id="FNanchor_375" href="#Footnote_375" class="fnanchor">375</a></p> - -<p>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<span class="pagenum" id="Page_174">174</span> -executive powers vested in the President, and of -judicial powers vested in the Supreme and inferior -courts of the United States.<a id="FNanchor_376" href="#Footnote_376" class="fnanchor">376</a></p> - -<p>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.<a id="FNanchor_377" href="#Footnote_377" class="fnanchor">377</a></p> - -<p>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.<a id="FNanchor_378" href="#Footnote_378" class="fnanchor">378</a></p> - -<p>The practical effect of the limitations expressed<span class="pagenum" id="Page_175">175</span> -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,<a id="FNanchor_379" href="#Footnote_379" class="fnanchor">379</a> 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.”<a id="FNanchor_380" href="#Footnote_380" class="fnanchor">380</a></p> - -<p>141. The line of demarcation between powers<span class="pagenum" id="Page_176">176</span> -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.<a id="FNanchor_381" href="#Footnote_381" class="fnanchor">381</a></p> - -<p>142. The limitations of the powers of the States -are numerous and specific. As to limitations of -State power (<abbr xml:lang="la" lang="la">i. e.</abbr>, the power of the State government, -executive, legislative, judicial, administrative), within -State jurisdiction, the several State constitutions -alone are authoritative and final.<a id="FNanchor_382" href="#Footnote_382" class="fnanchor">382</a> The Union is an<span class="pagenum" id="Page_177">177</span> -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.<a id="FNanchor_383" href="#Footnote_383" class="fnanchor">383</a></p> - -<p>Congress has exclusive jurisdiction over the -District of Columbia, and over places purchased -from any State, and over federal property.<a id="FNanchor_384" href="#Footnote_384" class="fnanchor">384</a></p> - -<p>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 <cite>The -Federalist</cite> calls “residuary sovereignty.”<a id="FNanchor_385" href="#Footnote_385" class="fnanchor">385</a></p> - -<blockquote> - -<p>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, <i xml:lang="la" lang="la">ex post facto</i>, law, or law impairing the -obligation of contracts, or grant any title of nobility.<a id="FNanchor_386" href="#Footnote_386" class="fnanchor">386</a></p></blockquote> - -<p><span class="pagenum" id="Page_178">178</span> -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.<a id="FNanchor_387" href="#Footnote_387" class="fnanchor">387</a></p> - -<p>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.<a id="FNanchor_388" href="#Footnote_388" class="fnanchor">388</a> The Supreme Court of the -United States has original jurisdiction in all cases in -which a State is a party,<a id="FNanchor_389" href="#Footnote_389" class="fnanchor">389</a> 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.<a id="FNanchor_390" href="#Footnote_390" class="fnanchor">390</a> Neither -slavery nor involuntary servitude, except as a punishment -for crime whereof the party shall have -been duly convicted shall exist in a State.<a id="FNanchor_391" href="#Footnote_391" class="fnanchor">391</a> No State -shall make or enforce any law which shall abridge -the privileges or immunities of citizens of the United<span class="pagenum" id="Page_179">179</span> -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.<a id="FNanchor_392" href="#Footnote_392" class="fnanchor">392</a> 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.<a id="FNanchor_393" href="#Footnote_393" class="fnanchor">393</a> 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.</p> - -<p>144. On the other hand, the States are recognized -as checks and balances, as limitations on the United -States, by the Constitution:</p> - -<p>(1) Representatives are apportioned among the -several States, but each State shall have at least one -Representative,<a id="FNanchor_394" href="#Footnote_394" class="fnanchor">394</a> and no State can be deprived of its -equal suffrage in the Senate without its own consent.<a id="FNanchor_395" href="#Footnote_395" class="fnanchor">395</a></p> - -<p>(2) The State executive alone has authority to issue -writs of election to fill vacancies in the representation -of a State.<a id="FNanchor_396" href="#Footnote_396" class="fnanchor">396</a></p> - -<p>(3) Each State appoints presidential electors<span class="pagenum" id="Page_180">180</span> -equal to the whole number of Senators and Representatives -to which it is entitled in Congress.<a id="FNanchor_397" href="#Footnote_397" class="fnanchor">397</a></p> - -<p>(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.<a id="FNanchor_398" href="#Footnote_398" class="fnanchor">398</a></p> - -<p>(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.<a id="FNanchor_399" href="#Footnote_399" class="fnanchor">399</a></p> - -<p>(6) No State can be divided, nor can a new State -be erected within a State without its own consent.<a id="FNanchor_400" href="#Footnote_400" class="fnanchor">400</a></p> - -<p>(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.<a id="FNanchor_401" href="#Footnote_401" class="fnanchor">401</a></p> - -<p>(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<span class="pagenum" id="Page_181">181</span> -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.<a id="FNanchor_402" href="#Footnote_402" class="fnanchor">402</a> 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.<a id="FNanchor_403" href="#Footnote_403" class="fnanchor">403</a> 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.”<a id="FNanchor_404" href="#Footnote_404" class="fnanchor">404</a></p> - -<p>The character of this supremacy of the “law -of the land” is indicated in the Constitution itself:<span class="pagenum" id="Page_182">182</span> -“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.”<a id="FNanchor_405" href="#Footnote_405" class="fnanchor">405</a> 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.</p> - -<p>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,<span class="pagenum" id="Page_183">183</span> -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.</p> - -<p>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”<a id="FNanchor_406" href="#Footnote_406" class="fnanchor">406</a> of the -State or of the United States.</p> - -<p>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):</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_184">184</span> -<em>restraints on which the people must often solely rely in all -representative government</em>.<a id="FNanchor_407" href="#Footnote_407" class="fnanchor">407</a></p></blockquote> - -<p>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.</p> - -<p>146. The people interpret their will in their<span class="pagenum" id="Page_185">185</span> -election of executive, legislative, or judiciary, and -the elective system prevails for all three in most of -the States.<a id="FNanchor_408" href="#Footnote_408" class="fnanchor">408</a> 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.<a id="FNanchor_409" href="#Footnote_409" class="fnanchor">409</a> 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.”<a id="FNanchor_410" href="#Footnote_410" class="fnanchor">410</a> This duty is of -State judges as well as federal, for all American judges -are alike bound by oath to support the Constitution.<a id="FNanchor_411" href="#Footnote_411" class="fnanchor">411</a> -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<span class="pagenum" id="Page_186">186</span> -or controversy before the court. The decision of the -court is not an <i xml:lang="la" lang="la">obiter dictum</i>, 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.</p> - -<blockquote> - -<p>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.<a id="FNanchor_412" href="#Footnote_412" class="fnanchor">412</a></p></blockquote> - -<p>The principle of constitutional interpretation is -given by Chief Justice Marshall:</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_187">187</span> -prohibited, but consist with the letter and spirit of the -Constitution, are constitutional.<a id="FNanchor_413" href="#Footnote_413" class="fnanchor">413</a></p></blockquote> - -<p>And he develops the principle further:</p> - -<blockquote> - -<p>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.<a id="FNanchor_414" href="#Footnote_414" class="fnanchor">414</a></p></blockquote> - -<p>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 <cite>The Federalist</cite>, -“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.”<a id="FNanchor_415" href="#Footnote_415" class="fnanchor">415</a> 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<span class="pagenum" id="Page_188">188</span> -framers and went to the country had no Bill of -Rights:</p> - -<blockquote> - -<p>A Bill of Rights would have been improperly annexed -to the federal plan (<abbr xml:lang="la" lang="la">i. e.</abbr>, 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.<a id="FNanchor_416" href="#Footnote_416" class="fnanchor">416</a></p></blockquote> - -<p>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</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_417" href="#Footnote_417" class="fnanchor">417</a></p></blockquote> - -<p>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.”<a id="FNanchor_418" href="#Footnote_418" class="fnanchor">418</a></p> - -<p><span class="pagenum" id="Page_189">189</span> -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.<a id="FNanchor_419" href="#Footnote_419" class="fnanchor">419</a></p> - -<p>In the popular mind the veto power may seem to -be the principal executive check on legislation. This -conviction takes form in State constitutions<a id="FNanchor_420" href="#Footnote_420" class="fnanchor">420</a> which -authorize the Governor to veto any item in an -appropriation bill, or to cut the item down.</p> - -<p>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,<span class="pagenum" id="Page_190">190</span>—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.<a id="FNanchor_421" href="#Footnote_421" class="fnanchor">421</a></p> - -<hr /> - -<p><span class="pagenum" id="Page_191">191</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_XI" class="vspace">CHAPTER XI<br /> - -<span class="subhead">THE LAW OF FUNDAMENTAL RIGHTS</span></h2> -</div> - -<p>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.</p> - -<p>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,<span class="pagenum" id="Page_192">192</span> -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.</p> - -<p>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”<a id="FNanchor_422" href="#Footnote_422" class="fnanchor">422</a> comprehends quite all persons in the -employ of the federal government.</p> - -<p>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<span class="pagenum" id="Page_193">193</span> -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.</p> - -<p>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.<a id="FNanchor_423" href="#Footnote_423" class="fnanchor">423</a> 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.</p> - -<p>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<span class="pagenum" id="Page_194">194</span> -establish a Constitution consisting of the Preamble, -which states the purpose and authority of the Constitution, -and three general articles:</p> - -<p>Article I. The legislative power is vested in -Congress.</p> - -<p>Article II. The executive power is vested in the -President.</p> - -<p>Article III. The judicial power is vested in a -Court.</p> - -<p>151. The Preamble and these three delegations -of power comprise the essentials of the Constitution, -lacking one other:</p> - -<p>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.<a id="FNanchor_424" href="#Footnote_424" class="fnanchor">424</a></p> - -<p>The rights thus retained, that is, <em>not delegated</em>, -are <em>fundamental rights</em>, 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.</p> - -<p>Thus, in final analysis, constitutional law in America -is shaped and determined by interpretation of -these fundamental rights. The supreme law cannot<span class="pagenum" id="Page_195">195</span> -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.</p> - -<p>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.<a id="FNanchor_425" href="#Footnote_425" class="fnanchor">425</a> 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.<a id="FNanchor_426" href="#Footnote_426" class="fnanchor">426</a> Freedom of -religion cannot be made a cloak for immorality -or crime.<a id="FNanchor_427" href="#Footnote_427" class="fnanchor">427</a> 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<span class="pagenum" id="Page_196">196</span> -compulsory attendance upon the same”<a id="FNanchor_428" href="#Footnote_428" class="fnanchor">428</a>; 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.</p> - -<p>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.<a id="FNanchor_429" href="#Footnote_429" class="fnanchor">429</a></p> - -<p>Freedom of speech, of the press, and of assembling -are ancient rights, each won after long struggle -against absolutism.<a id="FNanchor_430" href="#Footnote_430" class="fnanchor">430</a> 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.<a id="FNanchor_431" href="#Footnote_431" class="fnanchor">431</a></p> - -<p><span class="pagenum" id="Page_197">197</span> -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.</p> - -<p>The right to petition government for redress of -grievances<a id="FNanchor_432" href="#Footnote_432" class="fnanchor">432</a> 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.<a id="FNanchor_433" href="#Footnote_433" class="fnanchor">433</a> 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.</p> - -<p>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<span class="pagenum" id="Page_198">198</span> -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.<a id="FNanchor_434" href="#Footnote_434" class="fnanchor">434</a></p> - -<p>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.</p> - -<p>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.<a id="FNanchor_435" href="#Footnote_435" class="fnanchor">435</a></p> - -<p><span class="pagenum" id="Page_199">199</span> -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.</p> - -<p>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.<a id="FNanchor_436" href="#Footnote_436" class="fnanchor">436</a></p> - -<p><span class="pagenum" id="Page_200">200</span> -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.</p> - -<p>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<a id="FNanchor_437" href="#Footnote_437" class="fnanchor">437</a> 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.</p> - -<p><span class="pagenum" id="Page_201">201</span> -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.<a id="FNanchor_438" href="#Footnote_438" class="fnanchor">438</a> The sovereign may thus act, as the people of -a State, or of the United States.<a id="FNanchor_439" href="#Footnote_439" class="fnanchor">439</a> 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)<a id="FNanchor_440" href="#Footnote_440" class="fnanchor">440</a> recognizes and declares -that there are certain principles of natural justice<span class="pagenum" id="Page_202">202</span> -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.</p> - -<p>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.</p> - -<p>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,<span class="pagenum" id="Page_203">203</span> -when the youth are taught no better authenticated -truths from profane history.”<a id="FNanchor_441" href="#Footnote_441" class="fnanchor">441</a> 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.<a id="FNanchor_442" href="#Footnote_442" class="fnanchor">442</a></p> - -<p>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.<a id="FNanchor_443" href="#Footnote_443" class="fnanchor">443</a></p> - -<blockquote> - -<p>The law is perfectly well settled that the first ten -amendments to the Constitution, commonly known as<span class="pagenum" id="Page_204">204</span> -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 <abbr xml:lang="la" lang="la">v.</abbr> -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 <abbr xml:lang="la" lang="la">v.</abbr> 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.<a id="FNanchor_444" href="#Footnote_444" class="fnanchor">444</a></p></blockquote> - -<p>159. “The words ‘due process of law’ were -undoubtedly intended to convey the same meaning<span class="pagenum" id="Page_205">205</span> -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.”<a id="FNanchor_445" href="#Footnote_445" class="fnanchor">445</a></p> - -<p>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.<a id="FNanchor_446" href="#Footnote_446" class="fnanchor">446</a></p> - -<p>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<span class="pagenum" id="Page_206">206</span> -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.<a id="FNanchor_447" href="#Footnote_447" class="fnanchor">447</a></p> - -<p>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.<a id="FNanchor_448" href="#Footnote_448" class="fnanchor">448</a><span class="pagenum" id="Page_207">207</span> -The principle here is “to exclude everything -that is arbitrary and capricious in legislation affecting -the rights of the citizen.”<a id="FNanchor_449" href="#Footnote_449" class="fnanchor">449</a></p> - -<p>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<span class="pagenum" id="Page_208">208</span> -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<span class="pagenum" id="Page_209">209</span> -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.<a id="FNanchor_450" href="#Footnote_450" class="fnanchor">450</a></p> - -<p>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,<span class="pagenum" id="Page_210">210</span> -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.<a id="FNanchor_451" href="#Footnote_451" class="fnanchor">451</a></p> - -<p>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:</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_211">211</span> -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.<a id="FNanchor_452" href="#Footnote_452" class="fnanchor">452</a></p></blockquote> - -<hr /> - -<p><span class="pagenum" id="Page_212">212</span></p> - -<div class="chapter"> -<h2 id="CHAPTER_XII" class="vspace">CHAPTER XII<br /> - -<span class="subhead">THE LAW OF CITIZENSHIP</span></h2> -</div> - -<p>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.”<a id="FNanchor_453" href="#Footnote_453" class="fnanchor">453</a> The phrase “subject to the -jurisdiction thereof” excludes “children of ministers, -consuls, and citizens or subjects of foreign states -born within the United States.”<a id="FNanchor_454" href="#Footnote_454" class="fnanchor">454</a> 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.</p> - -<p>In America there are two citizenships, distinct<span class="pagenum" id="Page_213">213</span> -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.”<a id="FNanchor_455" href="#Footnote_455" class="fnanchor">455</a> 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.<a id="FNanchor_456" href="#Footnote_456" class="fnanchor">456</a></p> - -<p>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.<a id="FNanchor_457" href="#Footnote_457" class="fnanchor">457</a> -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 <em>fundamental</em>,<a id="FNanchor_458" href="#Footnote_458" class="fnanchor">458</a> -and are commonly set forth in Bills of<span class="pagenum" id="Page_214">214</span> -Rights found in the State constitutions. The sole -purpose of the Fourteenth Amendment is to declare -to the several States that</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_459" href="#Footnote_459" class="fnanchor">459</a></p></blockquote> - -<p>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</p> - -<blockquote> - -<p class="in0">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<a id="FNanchor_460" href="#Footnote_460" class="fnanchor">460</a>; “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 <i xml:lang="la" lang="la">habeas corpus</i>; 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<span class="pagenum" id="Page_215">215</span> -State of the United States by a <i xml:lang="la" lang="la">bona fide</i> residence therein, -with the same rights as other citizens of that State.<a id="FNanchor_461" href="#Footnote_461" class="fnanchor">461</a></p></blockquote> - -<p>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.</p> - -<p>165. The Fourteenth Amendment did not add -to the privileges and immunities of a citizen.<a id="FNanchor_462" href="#Footnote_462" class="fnanchor">462</a> 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,<a id="FNanchor_463" href="#Footnote_463" class="fnanchor">463</a> but this is not a guarantee to any -citizen of the right to vote, nor does the Constitution -confer that right on any person.<a id="FNanchor_464" href="#Footnote_464" class="fnanchor">464</a> 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<span class="pagenum" id="Page_216">216</span> -also in the same State at different times.<a id="FNanchor_465" href="#Footnote_465" class="fnanchor">465</a> When the -Constitution confers citizenship it does not confer -the right to vote.</p> - -<p>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.<a id="FNanchor_466" href="#Footnote_466" class="fnanchor">466</a> The United States thus</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_467" href="#Footnote_467" class="fnanchor">467</a></p></blockquote> - -<p>The United States has sovereign power to prescribe -electoral qualifications for its own citizens; it -has chosen to adopt State qualifications. The non-<span class="pagenum" id="Page_217">217</span>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.</p> - -<p>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,”<a id="FNanchor_468" href="#Footnote_468" class="fnanchor">468</a> it guaranteed those rights; but -“the power of the national government is limited -to the enforcement of the guaranty.”<a id="FNanchor_469" href="#Footnote_469" class="fnanchor">469</a> 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.”<a id="FNanchor_470" href="#Footnote_470" class="fnanchor">470</a> 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.”<a id="FNanchor_471" href="#Footnote_471" class="fnanchor">471</a></p> - -<p>The essential matter here involved is sovereignty.</p> - -<blockquote> - -<p>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<span class="pagenum" id="Page_218">218</span> -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.<a id="FNanchor_472" href="#Footnote_472" class="fnanchor">472</a></p></blockquote> - -<p>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.<a id="FNanchor_473" href="#Footnote_473" class="fnanchor">473</a> -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.”<a id="FNanchor_474" href="#Footnote_474" class="fnanchor">474</a></p> - -<p>167. Such unconstitutional legislation by Congress -was the Civil Rights Bill of 1866, which declared<span class="pagenum" id="Page_219">219</span> -that all persons within the jurisdiction of the United -States should be entitled</p> - -<blockquote> - -<p class="in0">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.<a id="FNanchor_475" href="#Footnote_475" class="fnanchor">475</a></p></blockquote> - -<p>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<span class="pagenum" id="Page_220">220</span> -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.<a id="FNanchor_476" href="#Footnote_476" class="fnanchor">476</a></p> - -<p>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.”<a id="FNanchor_477" href="#Footnote_477" class="fnanchor">477</a></p> - -<p>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.<a id="FNanchor_478" href="#Footnote_478" class="fnanchor">478</a> In other words, -the California law in no way disparaged or abridged -the privileges or immunities of the citizen.<a id="FNanchor_479" href="#Footnote_479" class="fnanchor">479</a></p> - -<p><span class="pagenum" id="Page_221">221</span> -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.”<a id="FNanchor_480" href="#Footnote_480" class="fnanchor">480</a></p> - -<p>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 <em>uniform</em> rule of -naturalization.”<a id="FNanchor_481" href="#Footnote_481" class="fnanchor">481</a> The power exercised here is suggested -in the word “uniform.”<a id="FNanchor_482" href="#Footnote_482" class="fnanchor">482</a> 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<span class="pagenum" id="Page_222">222</span> -them except those of a judicial nature.<a id="FNanchor_483" href="#Footnote_483" class="fnanchor">483</a> 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.</p> - -<p>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.<a id="FNanchor_484" href="#Footnote_484" class="fnanchor">484</a> By -parity of reasoning a person is deemed allegiant to -some jurisdiction or sovereignty. A vessel owning -no jurisdiction is a pirate.</p> - -<p>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</p> - -<blockquote> - -<p class="in0">does not take away from the State governments in a -general sense the power over suffrage which has belonged<span class="pagenum" id="Page_223">223</span> -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.<a id="FNanchor_485" href="#Footnote_485" class="fnanchor">485</a> 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.<a id="FNanchor_486" href="#Footnote_486" class="fnanchor">486</a></p></blockquote> - -<p>But while the Amendment “gives no right of -suffrage”</p> - -<blockquote> - -<p>... 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.<a id="FNanchor_487" href="#Footnote_487" class="fnanchor">487</a></p></blockquote> - -<p><span class="pagenum" id="Page_224">224</span> -171. Both the States and the United States are -forbidden by the Constitution to enact <i xml:lang="la" lang="la">ex post facto</i> -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 <i xml:lang="la" lang="la">ex -post facto</i> 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 <i xml:lang="la" lang="la">ex post facto</i> within the -constitutional prohibition that “mollifies the rigor -of the criminal law.” Only those laws are <i xml:lang="la" lang="la">ex post -facto</i> which “create, or aggravate the crime, or -increase the punishment, or change the rules of -evidence, for the purpose of conviction.”<a id="FNanchor_488" href="#Footnote_488" class="fnanchor">488</a></p> - -<p><span class="pagenum" id="Page_225">225</span> -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.<a id="FNanchor_489" href="#Footnote_489" class="fnanchor">489</a> A person may waive -a fundamental right<a id="FNanchor_490" href="#Footnote_490" class="fnanchor">490</a> but neither the State nor the -United States can lawfully invade the indefeasible -right of a person to personal security<a id="FNanchor_491" href="#Footnote_491" class="fnanchor">491</a>; 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.”<a id="FNanchor_492" href="#Footnote_492" class="fnanchor">492</a></p> - -<p>173. Am act of Congress that no person shall be -excused from attending and testifying, or from<span class="pagenum" id="Page_226">226</span> -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.<a id="FNanchor_493" href="#Footnote_493" class="fnanchor">493</a></p> - -<p>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.”<a id="FNanchor_494" href="#Footnote_494" class="fnanchor">494</a> 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.”<a id="FNanchor_495" href="#Footnote_495" class="fnanchor">495</a> 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<span class="pagenum" id="Page_227">227</span> -government, citizenship has fundamental rights, -which are guaranteed, and political privileges, which -are conferred and protected.</p> - -<p>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.</p> - -<p>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.<span class="pagenum" id="Page_228">228</span> -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,<span class="pagenum" id="Page_229">229</span> -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.</p> - -<hr /> - -<p><span class="pagenum" id="Page_230">230</span></p> - -<div class="chapter"> -<h2 id="Appendix">Appendix<br /> - -<span class="subhead">THE<br /> -CONSTITUTION<br /> -<span class="smaller">OF THE</span><br /> -UNITED STATES OF AMERICA</span></h2> -</div> - -<p class="p1 b2 center">(<span class="smcap">Compared with the Original in the Department -of State</span>)</p> - -<p>WE THE PEOPLE<a id="FNanchor_496" href="#Footnote_496" class="fnanchor">496</a> 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 <span class="smcap">Constitution</span> for the United States of -America.</p> - -<h3>ARTICLE I.</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>1. The House of Representatives shall be composed of -Members chosen every second Year by the People of the<span class="pagenum" id="Page_231">231</span> -several States, and the Electors in each State shall have -the Qualifications requisite for Electors of the most -numerous Branch of the State Legislature.</p> - -<p>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.</p> - -<p>3.<a id="FNanchor_497" href="#Footnote_497" class="fnanchor">497</a>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.</p> - -<p>4. When vacancies happen in the Representation -from any State, the Executive Authority thereof shall -issue Writs of Election to fill such Vacancies.</p> - -<p>5. The House of Representatives shall chuse their -Speaker and other Officers; and shall have the sole Power -of Impeachment.</p> - -<p><span class="pagenum" id="Page_232">232</span></p> - -<h4><span class="smcap">Section 3.</span></h4> - -<p>1.<a id="FNanchor_498" href="#Footnote_498" class="fnanchor">498</a>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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>4. The Vice-President of the United States shall be -President of the Senate, but shall have no Vote, unless -they be equally divided.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_233">233</span> -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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 4.</span></h4> - -<p>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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 5.</span></h4> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_234">234</span> -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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 6.</span></h4> - -<p>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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 7.</span></h4> - -<p>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.</p> - -<p><span class="pagenum" id="Page_235">235</span> -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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 8.</span></h4> - -<p>1. The Congress shall have Power to lay and collect -Taxes, Duties, Imposts and Excises, to pay the Debts<span class="pagenum" id="Page_236">236</span> -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;</p> - -<p>2. To borrow Money on the credit of the United -States;</p> - -<p>3. To regulate Commerce with foreign Nations, and -among the several States, and with the Indian Tribes;</p> - -<p>4. To establish a uniform Rule of Naturalization, and -uniform Laws on the subject of Bankruptcies throughout -the United States;</p> - -<p>5. To coin Money, regulate the Value thereof, and of -foreign Coin, and fix the Standard of Weights and -Measures;</p> - -<p>6. To provide for the Punishment of counterfeiting -the Securities and current Coin of the United States;</p> - -<p>7. To establish Post-Offices and Post Roads;</p> - -<p>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;</p> - -<p>9. To constitute Tribunals inferior to the Supreme -Court;</p> - -<p>10. To define and punish Piracies and Felonies committed -on the high Seas, and Offences against the Law -of Nations;</p> - -<p>11. To declare War, grant Letters of Marque and -Reprisal, and make Rules concerning Captures on Land -and Water;</p> - -<p>12. To raise and support Armies, but no Appropriation -of Money to that Use shall be for a longer Term than -two Years;</p> - -<p>13. To provide and maintain a Navy;</p> - -<p>14. To make Rules for the Government and Regulation -of the land and naval Forces;</p> - -<p>15. To provide for calling forth the Militia to execute<span class="pagenum" id="Page_237">237</span> -the Laws of the Union, suppress Insurrections and repel -Invasions;</p> - -<p>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;</p> - -<p>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</p> - -<p>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.</p> - -<h4><span class="smcap">Section 9.</span></h4> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_238">238</span> -3. No Bill of Attainder, or ex post facto Law shall be -passed.</p> - -<p>4. No Capitation or other direct Tax shall be laid, -unless in Proportion to the Census or Enumeration herein -before directed to be taken.</p> - -<p>5. No Tax or Duty shall be laid on Articles exported -from any State.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 10.</span></h4> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_239">239</span> -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.</p> - -<p>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.</p> - -<h3>ARTICLE II.</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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:</p> - -<p>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.</p> - -<p>3.<a id="FNanchor_499" href="#Footnote_499" class="fnanchor">499</a>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<span class="pagenum" id="Page_240">240</span> -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.</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_241">241</span> -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.</p> - -<p>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.</p> - -<p>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.”</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>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.</p> - -<p>2. He shall have Power, by and with the Advice and -Consent of the Senate, to make Treaties, provided two<span class="pagenum" id="Page_242">242</span> -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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 3.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 4.</span></h4> - -<p>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.</p> - -<p><span class="pagenum" id="Page_243">243</span></p> - -<h3>ARTICLE III.</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>1.<a id="FNanchor_500" href="#Footnote_500" class="fnanchor">500</a>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.</p> - -<p>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.</p> - -<p><span class="pagenum" id="Page_244">244</span> -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.</p> - -<h4><span class="smcap">Section 3.</span></h4> - -<p>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.</p> - -<p>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.</p> - -<h3>ARTICLE IV.</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>1. The Citizens of each State shall be entitled to all -Privileges and Immunities of Citizens in the several States.</p> - -<p>2. A Person charged in any State with Treason, -Felony, or other Crime, who shall flee from Justice, and<span class="pagenum" id="Page_245">245</span> -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.</p> - -<p>3.<a id="FNanchor_501" href="#Footnote_501" class="fnanchor">501</a>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.</p> - -<h4><span class="smcap">Section 3.</span></h4> - -<p>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.</p> - -<p>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.</p> - -<h4><span class="smcap">Section 4.</span></h4> - -<p>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.</p> - -<p><span class="pagenum" id="Page_246">246</span></p> - -<h3>ARTICLE V.</h3> - -<p>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.</p> - -<h3>ARTICLE VI.</h3> - -<p>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.</p> - -<p>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.</p> - -<p>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<span class="pagenum" id="Page_247">247</span> -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.</p> - -<h3>ARTICLE VII.</h3> - -<p>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.</p> - -<p id="indent247a">Done in Convention by the -Unanimous Consent of the<a id="FNanchor_502" href="#Footnote_502" class="fnanchor">502</a> -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 <em>In Witness</em> whereof -We have hereunto subscribed -our Names,</p> - -<p id="indent247b">G<sup>o</sup>: WASHINGTON—<i>Presidt. -and deputy from Virginia.</i></p> - -<p class="in0">Attest William Jackson Secretary.</p> - -<p class="p2 smaller">[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.]</p> - -<p><span class="pagenum" id="Page_248">248</span></p> -<div id="signers"> -<p> -<i>New Hampshire</i>:<br /> -John Langdon<br /> -Nicholas Gilman</p> - -<p><i>Massachusetts</i>:<br /> -Nathaniel Gorham<br /> -Rufus King</p> - -<p><i>Connecticut</i>:<br /> -Wm: Saml. Johnson<br /> -Roger Sherman</p> - -<p><i>New York</i>:<br /> -Alexander Hamilton</p> - -<p><i>New Jersey</i>:<br /> -Wil: Livingston<br /> -David Brearley<br /> -Wm. Paterson<br /> -Jona: Dayton</p> - -<p><i>Pennsylvania</i>:<br /> -B Franklin<br /> -Thomas Mifflin<br /> -Robt. Morris<br /> -Geo. Clymer<br /> -Thos. Fitz Simons<br /> -Jared Ingersoll<br /> -James Wilson<br /> -Gouv Morris</p> - -<p><i>Delaware</i>:<br /> -Geo: Read<br /> -Gunning Bedford jun<br /> -John Dickinson<br /> -Richard Bassett<br /> -<span class="pagenum" id="Page_249">249</span>Jaco: Broom</p> - -<p><i>Maryland</i>:<br /> -James McHenry<br /> -Dan of St. Thos. Jenifer<br /> -Danl Carroll</p> - -<p><i>Virginia</i>:<br /> -John Blair—<br /> -James Madison Jr.</p> - -<p><i>North Carolina</i>:<br /> -Wm: Blount<br /> -Richd. Dobbs Spaight<br /> -Hu Williamson</p> - -<p><i>South Carolina</i>:<br /> -J. Rutledge<br /> -Charles Cotesworth Pinckney<br /> -Charles Pinckney<br /> -Pierce Butler</p> - -<p><i>Georgia</i>:<br /> -William Few<br /> -Abr Baldwin -</p> -</div> - -<p class="p2">[<i>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.</i>]</p> - -<h3>(<a id="ARTICLE_I"></a>ARTICLE I.)</h3> - -<p>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.</p> - -<p><span class="pagenum" id="Page_250">250</span></p> - -<h3>(<a id="ARTICLE_II"></a>ARTICLE II.)</h3> - -<p>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.</p> - -<h3>(<a id="ARTICLE_III"></a>ARTICLE III.)</h3> - -<p>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.</p> - -<h3>(<a id="ARTICLE_IV"></a>ARTICLE IV.)</h3> - -<p>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.</p> - -<h3>(<a id="ARTICLE_V"></a>ARTICLE V.)</h3> - -<p>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.</p> - -<h3>(<a id="ARTICLE_VI"></a>ARTICLE VI.)</h3> - -<p>In all criminal prosecutions, the accused shall enjoy -the right to a speedy and public trial, by an impartial<span class="pagenum" id="Page_251">251</span> -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.</p> - -<h3>(<a id="ARTICLE_VII"></a>ARTICLE VII.)</h3> - -<p>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.</p> - -<h3>(<a id="ARTICLE_VIII"></a>ARTICLE VIII.)</h3> - -<p>Excessive bail shall not be required, nor excessive fines -imposed, nor cruel and unusual punishments inflicted.</p> - -<h3>(<a id="ARTICLE_IX"></a>ARTICLE IX.)</h3> - -<p>The enumeration in the Constitution, of certain rights, -shall not be construed to deny or disparage others retained -by the people.</p> - -<h3>(<a id="ARTICLE_X"></a>ARTICLE X.)</h3> - -<p>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.</p> - -<h3>(<a id="ARTICLE_XI"></a>ARTICLE XI.)</h3> - -<p>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.</p> - -<p><span class="pagenum" id="Page_252">252</span></p> - -<h3>(<a id="ARTICLE_XII"></a>ARTICLE XII.)</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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<span class="pagenum" id="Page_253">253</span> -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.</p> - -<h3>(<a id="ARTICLE_XIII"></a>ARTICLE XIII.)</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>Congress shall have power to enforce this article by -appropriate legislation.</p> - -<h3>(<a id="ARTICLE_XIV"></a>ARTICLE XIV.)</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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<span class="pagenum" id="Page_254">254</span> -deny to any person within its jurisdiction the equal -protection of the laws.</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 3.</span></h4> - -<p>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.</p> - -<p><span class="pagenum" id="Page_255">255</span></p> - -<h4><span class="smcap">Section 4.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 5.</span></h4> - -<p>The Congress shall have power to enforce, by appropriate -legislation, the provisions of this article.</p> - -<h3>(<a id="ARTICLE_XV"></a>ARTICLE XV.)</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>The Congress shall have power to enforce this article -by appropriate legislation.</p> - -<h3>(<a id="ARTICLE_XVI"></a>ARTICLE XVI.)</h3> - -<p>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.</p> - -<p><span class="pagenum" id="Page_256">256</span></p> - -<h3>(<a id="ARTICLE_XVII"></a>ARTICLE XVII.)</h3> - -<h4><span class="smcap">Section 1.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 2.</span></h4> - -<p>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.</p> - -<h4><span class="smcap">Section 3.</span></h4> - -<p>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.</p> - -<h3>RATIFICATIONS OF THE CONSTITUTION.</h3> - -<p>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.:</p> - -<p class="in0 in2"> -<span class="pagenum" id="Page_257">257</span>Delaware, December 7, 1787.<br /> -Pennsylvania, December 12, 1787.<br /> -New Jersey, December 18, 1787.<br /> -Georgia, January 2, 1788.<br /> -Connecticut, January 9, 1788.<br /> -Massachusetts, February 6, 1788.<br /> -Maryland, April 28, 1788.<br /> -South Carolina, May 23, 1788.<br /> -New Hampshire, June 21, 1788.<br /> -Virginia, June 26, 1788.<br /> -New York, July 26, 1788.<br /> -North Carolina, November 21, 1789.<br /> -Rhode Island, May 29, 1790. -</p> - -<p>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.”</p> - -<h3>RATIFICATIONS OF THE AMENDMENTS TO THE CONSTITUTION.</h3> - -<p>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:</p> - -<p class="in0 in2"> -New Jersey, November 20, 1789.<br /> -Maryland, December 19, 1789.<br /> -North Carolina, December 22, 1789.<br /> -South Carolina, January 19, 1790.<br /> -New Hampshire, January 25, 1790.<br /> -<span class="pagenum" id="Page_258">258</span>Delaware, January 28, 1790.<br /> -Pennsylvania, March 10, 1790.<br /> -New York, March 27, 1790.<br /> -Rhode Island, June 15, 1790.<br /> -Vermont, November 3, 1791.<br /> -Virginia, December 15, 1791. -</p> - -<p>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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>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:</p> - -<p><span class="pagenum" id="Page_259">259</span></p> - -<p class="in0 in2"> -Illinois, February 1, 1865.<br /> -Rhode Island, February 2, 1865.<br /> -Michigan, February 2, 1865.<br /> -Maryland, February 3, 1865.<br /> -New York, February 3, 1865.<br /> -West Virginia, February 3, 1865.<br /> -Maine, February 7, 1865.<br /> -Kansas, February 7, 1865.<br /> -Massachusetts, February 8, 1865.<br /> -Pennsylvania, February 8, 1865.<br /> -Virginia, February 9, 1865.<br /> -Ohio, February 10, 1865.<br /> -Missouri, February 10, 1865.<br /> -Indiana, February 16, 1865.<br /> -Nevada, February 16, 1865.<br /> -Louisiana, February 17, 1865.<br /> -Minnesota, February 23, 1865.<br /> -Wisconsin, March 1, 1865.<br /> -Vermont, March 9, 1865.<br /> -Tennessee, April 7, 1865.<br /> -Arkansas, April 20, 1865.<br /> -Connecticut, May 5, 1865.<br /> -New Hampshire, July 1, 1865.<br /> -South Carolina, November 13, 1865.<br /> -Alabama, December 2, 1865.<br /> -North Carolina, December 4, 1865.<br /> -Georgia, December 9, 1865. -</p> - -<p>The following States not enumerated in the proclamation -of the Secretary of State also ratified this amendment:</p> - -<p class="in0 in2"> -Oregon, December 11, 1865.<br /> -California, December 20, 1865.<br /> -Florida, December 28, 1865.<br /> -New Jersey, January 23, 1866.<br /> -Iowa, January 24, 1866.<br /> -Texas, February 18, 1870. -</p> - -<p><span class="pagenum" id="Page_260">260</span> -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:</p> - -<p class="in0 in2"> -Connecticut, June 30, 1866.<br /> -New Hampshire, July 7, 1866.<br /> -Tennessee, July 19, 1866.<br /> -<a id="FNanchor_503" href="#Footnote_503" class="fnanchor">503</a>New Jersey, September 11, 1866.<br /> -<a id="FNanchor_504" href="#Footnote_504" class="fnanchor">504</a>Oregon, September 19, 1866.<br /> -Vermont, November 9, 1866.<br /> -New York, January 10, 1867.<br /> -<a id="FNanchor_505" href="#Footnote_505" class="fnanchor">505</a>Ohio, January 11, 1867.<br /> -Illinois, January 15, 1867.<br /> -West Virginia, January 16, 1867.<br /> -Kansas, January 18, 1867.<br /> -Maine, January 19, 1867.<br /> -Nevada, January 22, 1867.<br /> -Missouri, January 26, 1867.<br /> -Indiana, January 29, 1867.<br /> -Minnesota, February 1, 1867.<br /> -Rhode Island, February 7, 1867.<br /> -Wisconsin, February 13, 1867.<br /> -Pennsylvania, February 13, 1867.<br /> -Michigan, February 15, 1867.<br /> -Massachusetts, March 20, 1867.<br /> -Nebraska, June 15, 1867.<br /> -Iowa, April 3, 1868.<br /> -<span class="pagenum" id="Page_261">261</span>Arkansas, April 6, 1868.<br /> -Florida, June 9, 1868.<br /> -<a id="FNanchor_506" href="#Footnote_506" class="fnanchor">506</a>North Carolina, July 4, 1868.<br /> -Louisiana, July 9, 1868.<br /> -<a href="#Footnote_506" class="fnanchor">506</a>South Carolina, July 9, 1868.<br /> -Alabama, July 13, 1868.<br /> -<a href="#Footnote_506" class="fnanchor">506</a>Georgia, July 21, 1868.<br /> -Mississippi, January 17, 1870.<br /> -Texas, February 18, 1870. -</p> - -<p><a href="#Footnote_506" class="fnanchor">506</a>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.</p> - -<p>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:</p> - -<p class="in0 in2"> -Nevada, March 1, 1869.<br /> -West Virginia, March 3, 1869.<br /> -North Carolina, March 5, 1869.<br /> -Louisiana, March 5, 1869.<br /> -Illinois, March 5, 1869.<br /> -Michigan, March 8, 1869.<br /> -Wisconsin, March 9, 1869.<br /> -Massachusetts, March 12, 1869.<br /> -Maine, March 12, 1869.<br /> -South Carolina, March 16, 1869.<br /> -Pennsylvania, March 26, 1869.<br /> -Arkansas, March 30, 1869.<br /> -<span class="pagenum" id="Page_262">262</span><a id="FNanchor_507" href="#Footnote_507" class="fnanchor">507</a>New York, April 14, 1869.<br /> -Indiana, May 14, 1869.<br /> -Connecticut, May 19, 1869.<br /> -Florida, June 15, 1869.<br /> -New Hampshire, July 7, 1869.<br /> -Virginia, October 8, 1869.<br /> -Vermont, October 21, 1869.<br /> -Alabama, November 24, 1869.<br /> -Missouri, January 10, 1870.<br /> -Mississippi, January 17, 1870.<br /> -Rhode Island, January 18, 1870.<br /> -Kansas, January 19, 1870.<br /> -<a id="FNanchor_508" href="#Footnote_508" class="fnanchor">508</a>Ohio, January 27, 1870.<br /> -Georgia, February 2, 1870.<br /> -Iowa, February 3, 1870.<br /> -Nebraska, February 17, 1870.<br /> -Texas, February 18, 1870.<br /> -Minnesota, February 19, 1870. -</p> - -<p><a id="FNanchor_509" href="#Footnote_509" class="fnanchor">509</a> -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.</p> - -<p>The States of California, Delaware, Kentucky, Maryland, -Oregon, and Tennessee rejected this amendment.</p> - -<p>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:</p> - -<p class="in0 in2"> -Alabama, August 17, 1909.<br /> -Kentucky, February 9, 1910.<br /> -South Carolina, February 19, 1910.<br /> -Illinois, March 1, 1910.<br /> -Mississippi, March 7, 1910.<br /> -<span class="pagenum" id="Page_263">263</span>Oklahoma, March 14, 1910.<br /> -Maryland, April 8, 1910.<br /> -Georgia, August 3, 1910.<br /> -Texas, August 17, 1910.<br /> -Ohio, January 19, 1911.<br /> -Idaho, January 20, 1911.<br /> -Oregon, January 23, 1911.<br /> -Washington, January 26, 1911.<br /> -Montana, California, January 31, 1911.<br /> -Indiana, February 6, 1911.<br /> -Nevada, February 8, 1911.<br /> -Nebraska, North Carolina, February 11, 1911.<br /> -Colorado, February 20, 1911.<br /> -North Dakota, February 21, 1911.<br /> -Michigan, February 23, 1911.<br /> -Iowa, February 27, 1911.<br /> -Missouri, March 16, 1911.<br /> -Maine, March 31, 1911.<br /> -Tennessee, April 7, 1911.<br /> -Arkansas, April 22, 1911.<br /> -Wisconsin, May 26, 1911.<br /> -New York, July 12, 1911.<br /> -South Dakota, February 3, 1912.<br /> -Arizona, April 9, 1912.<br /> -Minnesota, June 11, 1912.<br /> -Delaware, Wyoming, February 3, 1913.<br /> -New Jersey, New Mexico, February 5, 1913. -</p> - -<p>The States of Rhode Island, New Hampshire, Kentucky -and Utah rejected this amendment.</p> - -<p>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:</p> - -<p class="in0 in2"> -Massachusetts, May 22, 1912.<br /> -<span class="pagenum" id="Page_264">264</span>Arizona, June 3, 1912.<br /> -Minnesota, June 10, 1912.<br /> -New York, January 13, 1913.<br /> -Kansas, January 17, 1913.<br /> -Oregon, January 23, 1913.<br /> -North Carolina, January 25, 1913.<br /> -Michigan, California, January 28, 1913.<br /> -Idaho, January 31, 1913.<br /> -West Virginia, February 4, 1913.<br /> -Nebraska, February 5, 1913.<br /> -Iowa, February 6, 1913.<br /> -Washington, Montana, Texas, February 7, 1913.<br /> -Wyoming, February 11, 1913.<br /> -Illinois, Colorado, February 13, 1913.<br /> -North Dakota, February 18, 1913.<br /> -Nevada, Vermont, February 19, 1913.<br /> -Maine, February 20, 1913.<br /> -New Hampshire, February 21, 1913.<br /> -Oklahoma, February 24, 1913.<br /> -Ohio, February 25, 1913.<br /> -South Dakota, February 27, 1913.<br /> -Indiana, March 6, 1913.<br /> -Missouri, March 7, 1913.<br /> -Tennessee, April 1, 1913.<br /> -Arkansas, April 14, 1913.<br /> -Pennsylvania, Connecticut, April 15, 1913.<br /> -Wisconsin, May 9, 1913. -</p> - -<hr /> - -<p><span class="pagenum" id="Page_265">265</span></p> - -<div class="chapter"> -<h2 id="CASES_CITED">CASES CITED</h2> -</div> - -<div id="cases"> - -<p class="casesfirst">A</p> - -<p>Addystone (The), Pipe & Steel Co. <abbr xml:lang="la" lang="la">v.</abbr> U. S., 175 U. S., 211, (<a href="#Page_87">87</a>)</p> - -<p>American Insurance Company <abbr xml:lang="la" lang="la">v.</abbr> Canter, 1 Peters, 511, (<a href="#Page_15">15</a>, <a href="#Page_47">47</a>, <a href="#Page_127">127</a>, <a href="#Page_159">159</a>, <a href="#Page_193">193</a>)</p> - -<p>Ames <abbr xml:lang="la" lang="la">v.</abbr> Kansas, 111 U. S., 449, (<a href="#Page_139">139</a>)</p> - -<p>Arndt <abbr xml:lang="la" lang="la">v.</abbr> Griggs, 134 U. S., 316, (<a href="#Page_96">96</a>)</p> - -<p class="casesfirst">B</p> - -<p>Baldwin <abbr xml:lang="la" lang="la">v.</abbr> Hale, 1 Wallace, 223, (<a href="#Page_37">37</a>, <a href="#Page_38">38</a>)</p> - -<p>Bank of Commerce <abbr xml:lang="la" lang="la">v.</abbr> New York City, 2 Black, 620, (<a href="#Page_51">51</a>, <a href="#Page_52">52</a>, <a href="#Page_122">122</a>)</p> - -<p>Barbier <abbr xml:lang="la" lang="la">v.</abbr> Connolly, 113 U. S., 27, (<a href="#Page_207">207</a>, <a href="#Page_209">209</a>)</p> - -<p>Barron <abbr xml:lang="la" lang="la">v.</abbr> Baltimore, 7 Peters, 243, (<a href="#Page_11">11</a>, <a href="#Page_32">32</a>, <a href="#Page_47">47</a>, <a href="#Page_156">156</a>, <a href="#Page_161">161</a>)</p> - -<p>Bartemeyer <abbr xml:lang="la" lang="la">v.</abbr> Iowa, 18 Wallace, 129, (<a href="#Page_98">98</a>)</p> - -<p>Battle <abbr xml:lang="la" lang="la">v.</abbr> U. S., 209 U. S., 36, (<a href="#Page_43">43</a>)</p> - -<p>Beck <abbr xml:lang="la" lang="la">v.</abbr> Perkins, 139 U. S., 628, (<a href="#Page_137">137</a>)</p> - -<p>Bedford, <abbr xml:lang="la" lang="la">v.</abbr> U. S., 192 U. S., 217, (<a href="#Page_100">100</a>)</p> - -<p>Beef Trust, Swift and Co. <abbr xml:lang="la" lang="la">v.</abbr> U. S., 196 U. S., 375, (<a href="#Page_84">84</a>)</p> - -<p>Beer Co. <abbr xml:lang="la" lang="la">v.</abbr> Massachusetts, 97 U. S., 25, (<a href="#Page_92">92</a>)</p> - -<p>Blake <abbr xml:lang="la" lang="la">v.</abbr> McClung, 172 U. S., 239, (<a href="#Page_150">150</a>, <a href="#Page_151">151</a>, <a href="#Page_198">198</a>)</p> - -<p>Börs <abbr xml:lang="la" lang="la">v.</abbr> Preston, 111 U. S., 252, (<a href="#Page_120">120</a>, <a href="#Page_137">137</a>)</p> - -<p>Boyd <abbr xml:lang="la" lang="la">v.</abbr> Alabama, 94 U. S. 645, (<a href="#Page_92">92</a>)</p> - -<p>Boyd <abbr xml:lang="la" lang="la">v.</abbr> U. S., 116 U. S., 616, (<a href="#Page_203">203</a>, <a href="#Page_225">225</a>)</p> - -<p>Brewer Brick Co. <abbr xml:lang="la" lang="la">v.</abbr> Brewer, 62 Maine, 62, (<a href="#Page_60">60</a>)</p> - -<p>Brig Wilson <abbr xml:lang="la" lang="la">v.</abbr> U. S., 1 Brockenbrough, 437, (<a href="#Page_63">63</a>)</p> - -<p>Brimmer <abbr xml:lang="la" lang="la">v.</abbr> Rebman, 138 U. S., 78, (<a href="#Page_68">68</a>, <a href="#Page_79">79</a>)</p> - -<p>Briscoe <abbr xml:lang="la" lang="la">v.</abbr> Bank of Kentucky, 11 Peters, 257, (<a href="#Page_41">41</a>)</p> - -<p>Brown <abbr xml:lang="la" lang="la">v.</abbr> Houston, 114 U. S., 622, (<a href="#Page_80">80</a>)</p> - -<p>Brown <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 12 Wheaton, 419, (<a href="#Page_66">66</a>, <a href="#Page_75">75</a>, <a href="#Page_76">76</a>)</p> - -<p>Brown <abbr xml:lang="la" lang="la">v.</abbr> U. S., 8 Cranch, 110, (<a href="#Page_47">47</a>)</p> - -<p>Brown <abbr xml:lang="la" lang="la">v.</abbr> Walker, 161 U. S., 591, (<a href="#Page_162">162</a>, <a href="#Page_226">226</a>)</p> - -<p>Bucher <abbr xml:lang="la" lang="la">v.</abbr> Cheshire, R. R. Co., 125 U. S., 555, (<a href="#Page_145">145</a>)</p> - -<p>Buckner <abbr xml:lang="la" lang="la">v.</abbr> Finley, 2 Peters, 590, (<a href="#Page_148">148</a>, <a href="#Page_149">149</a>)</p> - -<p>Burgess <abbr xml:lang="la" lang="la">v.</abbr> Seligman, 107 U. S., 20, (<a href="#Page_145">145</a>)</p> - -<p>Buttfield <abbr xml:lang="la" lang="la">v.</abbr> Stranahan, 192 U. S., 470, (<a href="#Page_88">88</a>)</p> - -<p class="casesfirst">C</p> - -<p>Calder <abbr xml:lang="la" lang="la">v.</abbr> Bull, 3 Dallas, 386, (<a href="#Page_32">32</a>, <a href="#Page_224">224</a>)</p> - -<p>Callan <abbr xml:lang="la" lang="la">v.</abbr> Wilson, 127 U. S., 540, (<a href="#Page_160">160</a>)</p> - -<p>Capitol Traction Co. <abbr xml:lang="la" lang="la">v.</abbr> Hof, 174 U. S., 1, (<a href="#Page_210">210</a>)</p> - -<p>Central Bridge Corporation <abbr xml:lang="la" lang="la">v.</abbr> City of Lowell, 4 Gray (Mass.), 474, (<a href="#Page_99">99</a>)</p> - -<p><span class="pagenum" id="Page_266">266</span> -Chicago, etc., Ry. Co. <abbr xml:lang="la" lang="la">v.</abbr> Wellman, 143 U. S., 339, (<a href="#Page_186">186</a>)</p> - -<p>Chisholm <abbr xml:lang="la" lang="la">v.</abbr> Georgia, 2 Dallas, 419, (<a href="#Page_114">114</a>, <a href="#Page_141">141</a> [<a href="#Footnote_245">note</a>])</p> - -<p>Cincinnati, Wilmington, etc., R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Commissioners, 1 Ohio St., 88, (<a href="#Page_169">169</a>)</p> - -<p>Civil Rights Cases, 109 U. S., 3, (<a href="#Page_17">17</a>, <a href="#Page_24">24</a>, <a href="#Page_94">94</a>, <a href="#Page_217">217</a>, <a href="#Page_218">218</a>, <a href="#Page_220">220</a>)</p> - -<p>Clark Distilling Co. <abbr xml:lang="la" lang="la">v.</abbr> Am. Ex. Co., and State of W. Va., (<a href="#Page_64">64</a>)</p> - -<p>Clark Distilling Co. <abbr xml:lang="la" lang="la">v.</abbr> W. Md. R.R. Co., (<a href="#Page_64">64</a>)</p> - -<p>Coe <abbr xml:lang="la" lang="la">v.</abbr> Errol, 116 U. S., 525, (<a href="#Page_73">73</a>)</p> - -<p>Cohens <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 6 Wheaton, 382, (<a href="#Page_13">13</a>, <a href="#Page_119">119</a>, <a href="#Page_121">121</a>, <a href="#Page_138">138</a>, <a href="#Page_162">162</a>)</p> - -<p>Collector (The) <abbr xml:lang="la" lang="la">v.</abbr> Day, 11 Wallace, 113, (<a href="#Page_54">54</a>, <a href="#Page_55">55</a>)</p> - -<p>Commissioners of Immigration <abbr xml:lang="la" lang="la">v.</abbr> North German Lloyd, 92 U. S., 259, (<a href="#Page_32">32</a>)</p> - -<p>Commonwealth <abbr xml:lang="la" lang="la">v.</abbr> McCloskey, 2 Rawle (Pa.), 374, (<a href="#Page_186">186</a>)</p> - -<p>Cook <abbr xml:lang="la" lang="la">v.</abbr> Marshall Company, 196 U. S., 261, (<a href="#Page_10">10</a>)</p> - -<p>Corfield <abbr xml:lang="la" lang="la">v.</abbr> Coryell, 4 Washington C. C., 371, (<a href="#Page_200">200</a>, <a href="#Page_213">213</a>)</p> - -<p>Cooley <abbr xml:lang="la" lang="la">v.</abbr> Board of Port Wardens of the Port of Philadelphia, 12 Howard, 299, (<a href="#Page_74">74</a>)</p> - -<p>Corporation Tax Cases, 220 U. S., 611, (<a href="#Page_62">62</a>)</p> - -<p>Cotting <abbr xml:lang="la" lang="la">v.</abbr> Kansas City Stock Yards Co., 183 U. S., 79, (<a href="#Page_198">198</a>)</p> - -<p>County of Mobile <abbr xml:lang="la" lang="la">v.</abbr> Kimball, 102 U. S., 691, (<a href="#Page_32">32</a>)</p> - -<p>Crandall <abbr xml:lang="la" lang="la">v.</abbr> Nevada, 6 Wallace, 36, (<a href="#Page_214">214</a>)</p> - -<p>Crutcher <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, 141 U. S., 47, (<a href="#Page_78">78</a>, <a href="#Page_79">79</a>)</p> - -<p>Cunningham <abbr xml:lang="la" lang="la">v.</abbr> Macon & Brunswick R. R. Co., 109 U. S., 446, (<a href="#Page_141">141</a>)</p> - -<p>Cunnius <abbr xml:lang="la" lang="la">v.</abbr> Reading School District, 198 U. S., 458, (<a href="#Page_97">97</a>)</p> - -<p class="casesfirst">D</p> - -<p>Dalby <abbr xml:lang="la" lang="la">v.</abbr> Wolf, 14 Iowa, 228, (<a href="#Page_31">31</a>)</p> - -<p>Dale Tile Mfg. Co. <abbr xml:lang="la" lang="la">v.</abbr> Hyatt, 125 U. S., 46, (<a href="#Page_44">44</a>)</p> - -<p>Danbury Hatters’ Case, Loewe <abbr xml:lang="la" lang="la">v.</abbr> Lawler, 208 U. S., 274, (<a href="#Page_85">85</a>)</p> - -<p><i>Daniel Ball</i> (The), 10 Wallace, 557, (<a href="#Page_71">71</a>)</p> - -<p>Darrington <abbr xml:lang="la" lang="la">v.</abbr> Bank of Alabama, 13 Howard, 12, (<a href="#Page_41">41</a>)</p> - -<p>Davis <abbr xml:lang="la" lang="la">v.</abbr> Beason, 133 U. S., 333, (<a href="#Page_195">195</a>)</p> - -<p>Davis <abbr xml:lang="la" lang="la">v.</abbr> Packard, 7 Peters, 276, (<a href="#Page_120">120</a>)</p> - -<p>Dent <abbr xml:lang="la" lang="la">v.</abbr> West Virginia, 129 U. S., 114, (<a href="#Page_207">207</a>)</p> - -<p>Dooley <abbr xml:lang="la" lang="la">v.</abbr> U. S., 183 U. S., 151, (<a href="#Page_49">49</a>)</p> - -<p>Dorr <abbr xml:lang="la" lang="la">v.</abbr> U. S., 195 U. S., 138, (<a href="#Page_49">49</a>, <a href="#Page_163">163</a>)</p> - -<p>Douglas <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, 168 U. S., 488, (<a href="#Page_92">92</a>, <a href="#Page_93">93</a>)</p> - -<p>Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, 182 U. S., 244, (<a href="#Page_14">14</a>, <a href="#Page_49">49</a>, <a href="#Page_50">50</a>, <a href="#Page_160">160</a>, <a href="#Page_162">162</a>, <a href="#Page_163">163</a>, <a href="#Page_201">201</a>)</p> - -<p>Drake <abbr xml:lang="la" lang="la">v.</abbr> U. S., <abbr xml:lang="la" lang="la">ex rel.</abbr> Bates, 30 App. D. C., 312;<br />36 Wash. Law Rep., 140, (<a href="#Page_111">111</a>)</p> - -<p class="casesfirst">E</p> - -<p>East Hartford <abbr xml:lang="la" lang="la">v.</abbr> Hartford Bridge Co., 10 Howard, 511, (<a href="#Page_93">93</a>)</p> - -<p>Escanaba Company <abbr xml:lang="la" lang="la">v.</abbr> Chicago, 107 U. S., 678, (<a href="#Page_74">74</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Boyer, 109 U. S., 629, (<a href="#Page_138">138</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Garland, 4 Wallace, 333, (<a href="#Page_107">107</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Griffiths, 118 Indiana, 83, (<a href="#Page_136">136</a>, <a href="#Page_222">222</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Milligan, 4 Wallace, 2, (<a href="#Page_198">198</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Reggel, 114 U. S., 642, (<a href="#Page_17">17</a>, <a href="#Page_151">151</a>, <a href="#Page_152">152</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Siebold, 100 U. S., 37, (<a href="#Page_138">138</a>, <a href="#Page_156">156</a>, <a href="#Page_218">218</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Wall, 107 U. S., 265, (<a href="#Page_205">205</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Watkins, 7 Peters, 568, (<a href="#Page_143">143</a>)</p> - -<p><i xml:lang="la" lang="la">Ex parte</i> Yarbrough, 110 U. S., 651, (<a href="#Page_157">157</a>, <a href="#Page_177">177</a>, <a href="#Page_215">215</a>, <a href="#Page_216">216</a>, <a href="#Page_223">223</a>)</p> - -<p><span class="pagenum" id="Page_267">267</span></p> - -<p class="casesfirst">F</p> - -<p>Field <abbr xml:lang="la" lang="la">v.</abbr> Clark, 143 U. S., 649, (<a href="#Page_25">25</a>, <a href="#Page_169">169</a>, <a href="#Page_190">190</a>)</p> - -<p>Fish <abbr xml:lang="la" lang="la">v.</abbr> Jefferson Police Jury, 116 U. S., 131, (<a href="#Page_91">91</a>)</p> - -<p>Florida Central R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Reynolds, 183 U. S., 476, (<a href="#Page_60">60</a>)</p> - -<p>Fong Yue Ting <abbr xml:lang="la" lang="la">v.</abbr> U. S., 149 U. S., 698, (<a href="#Page_156">156</a>)</p> - -<p>Foster <abbr xml:lang="la" lang="la">v.</abbr> Kansas, 112 U. S., 201, (<a href="#Page_98">98</a>)</p> - -<p>Fox <abbr xml:lang="la" lang="la">v.</abbr> Ohio, 5 Howard, 410, (<a href="#Page_42">42</a>)</p> - -<p>Franklin Needle Co. <abbr xml:lang="la" lang="la">v.</abbr> Franklin, 65 N. H., 177, (<a href="#Page_60">60</a>)</p> - -<p>Frees <abbr xml:lang="la" lang="la">v.</abbr> Ford, 6 New York, 176, (<a href="#Page_186">186</a>)</p> - -<p>French <abbr xml:lang="la" lang="la">v.</abbr> Barber Asphalt Paving Co., 181 U. S., 324, (<a href="#Page_62">62</a>)</p> - -<p>Ft. Leavenworth R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Loewe, 114 U. S. 525, (<a href="#Page_48">48</a>)</p> - -<p class="casesfirst">G</p> - -<p>Gaines <abbr xml:lang="la" lang="la">v.</abbr> Fuentes, 92 U. S., 10, (<a href="#Page_143">143</a>)</p> - -<p>Garfield <abbr xml:lang="la" lang="la">v.</abbr> U. S., <abbr xml:lang="la" lang="la">ex rel.</abbr> Frost, 30 App. D. C., 165;<br />35 Wash. Law Rep., 771, (<a href="#Page_111">111</a>)</p> - -<p>Gelpoke <abbr xml:lang="la" lang="la">v.</abbr> City of Dubuque, 1 Wallace, 175, (<a href="#Page_144">144</a>)</p> - -<p>Georgia R. R. and Banking Co. <abbr xml:lang="la" lang="la">v.</abbr> Smith, 128 U. S., 174, (<a href="#Page_93">93</a>)</p> - -<p>Georgia <abbr xml:lang="la" lang="la">v.</abbr> Stanton, 6 Wallace, 57, (<a href="#Page_107">107</a>)</p> - -<p>Gibbons <abbr xml:lang="la" lang="la">v.</abbr> Ogden, 9 Wheaton, 1, (<a href="#Page_32">32</a>, <a href="#Page_67">67</a>, <a href="#Page_68">68</a>, <a href="#Page_184">184</a>)</p> - -<p>Gilman <abbr xml:lang="la" lang="la">v.</abbr> Philadelphia, 3 Wallace, 713, (<a href="#Page_32">32</a>)</p> - -<p>Green <abbr xml:lang="la" lang="la">v.</abbr> Neal’s Lessee, 6 Peters, 291, (<a href="#Page_144">144</a>)</p> - -<p>Griffin <abbr xml:lang="la" lang="la">v.</abbr> U. S., <abbr xml:lang="la" lang="la">ex rel.</abbr> Le Cuyer, 30 App. D. C., 291;<br />36 Wash. Law Rep., 103, (<a href="#Page_111">111</a>)</p> - -<p>Guinn and Beal <abbr xml:lang="la" lang="la">v.</abbr> U. S., 238 U. S., 347, (<a href="#Page_223">223</a>)</p> - -<p>Gunn <abbr xml:lang="la" lang="la">v.</abbr> Barry, 15 Wallace, 610, (<a href="#Page_94">94</a>)</p> - -<p class="casesfirst">H</p> - -<p>Hanley <abbr xml:lang="la" lang="la">v.</abbr> Donaghue, 116 U. S., 1, (<a href="#Page_147">147</a>, <a href="#Page_148">148</a>)</p> - -<p>Hanley <abbr xml:lang="la" lang="la">v.</abbr> Kansas City Southern Railroad Co., 187 U. S., 617, (<a href="#Page_70">70</a>, <a href="#Page_88">88</a>)</p> - -<p>Hans <abbr xml:lang="la" lang="la">v.</abbr> Louisiana, 134 U. S., 1, (<a href="#Page_141">141</a>)</p> - -<p>Harman <abbr xml:lang="la" lang="la">v.</abbr> Chicago, 147 U. S., 396, (<a href="#Page_75">75</a>)</p> - -<p>Harris <abbr xml:lang="la" lang="la">v.</abbr> People, 128 Illinois, 585, (<a href="#Page_225">225</a>)</p> - -<p>Hartell <abbr xml:lang="la" lang="la">v.</abbr> Tilghman, 99 U. S., 558, (<a href="#Page_44">44</a>)</p> - -<p>Hawaii <abbr xml:lang="la" lang="la">v.</abbr> Mankichi, 190 U. S., 197, (<a href="#Page_94">94</a>, <a href="#Page_163">163</a>)</p> - -<p>Hayburn’s Case, 2 Dallas, 409, note, (<a href="#Page_222">222</a>)</p> - -<p>Henderson <abbr xml:lang="la" lang="la">et al.</abbr> Mayor of the City of New York <abbr xml:lang="la" lang="la">et al.</abbr> (<a href="#Page_32">32</a>)</p> - -<p>Henderson <abbr xml:lang="la" lang="la">v.</abbr> Mayor of New York, 92 U. S., 259, (<a href="#Page_68">68</a>)</p> - -<p>Hepburn <abbr xml:lang="la" lang="la">v.</abbr> Ellzey, 2 Cranch, 445, (<a href="#Page_47">47</a>, <a href="#Page_126">126</a>)</p> - -<p>Hepburn <abbr xml:lang="la" lang="la">v.</abbr> Griswold, 8 Wallace, 603, (<a href="#Page_39">39</a>)</p> - -<p>Herdic <abbr xml:lang="la" lang="la">v.</abbr> Roessler, 109 N. Y., 127, (<a href="#Page_44">44</a>)</p> - -<p>Hill and Co. Lmtd. <abbr xml:lang="la" lang="la">v.</abbr> Hoover, 220 U. S., 329, (<a href="#Page_44">44</a>)</p> - -<p>Holden <abbr xml:lang="la" lang="la">v.</abbr> Hardy, 169 U. S., 366, (<a href="#Page_207">207</a>)</p> - -<p>Hollinger <abbr xml:lang="la" lang="la">v.</abbr> Davis, 146 U. S., 314, (<a href="#Page_225">225</a>)</p> - -<p>Hooe <abbr xml:lang="la" lang="la">v.</abbr> Jamieson, 166 U. S., 395, (<a href="#Page_142">142</a>)</p> - -<p>Hope <abbr xml:lang="la" lang="la">v.</abbr> U. S., 227 U. S., 308, (<a href="#Page_88">88</a>)</p> - -<p>Hull <abbr xml:lang="la" lang="la">v.</abbr> De Cuir, 95 U. S., 485, (<a href="#Page_32">32</a>)</p> - -<p>Hurtado <abbr xml:lang="la" lang="la">v.</abbr> California, 110 U. S., 514, (<a href="#Page_205">205</a>, <a href="#Page_220">220</a>)</p> - -<p class="casesfirst">I</p> - -<p>Inman S. S. Co., <abbr xml:lang="la" lang="la">v.</abbr> Tinker, 94 U. S., 238, (<a href="#Page_81">81</a>)</p> - -<p><i xml:lang="la" lang="la">In re</i> Debs, 158 U. S., 564, (<a href="#Page_87">87</a>)</p> - -<p><i xml:lang="la" lang="la">In re</i> Neagle, 135 U. S., 1, (<a href="#Page_85">85</a>, <a href="#Page_106">106</a>, <a href="#Page_116">116</a>)</p> - -<p><i xml:lang="la" lang="la">In re</i> Rapier, 143 U. S., 110, (<a href="#Page_43">43</a>)</p> - -<p class="casesfirst">J</p> - -<p>Juilliard <abbr xml:lang="la" lang="la">v.</abbr> Greenman, 110 U. S., 421, (<a href="#Page_38">38</a>, <a href="#Page_39">39</a>, <a href="#Page_95">95</a>)</p> - -<p><span class="pagenum" id="Page_268">268</span></p> - -<p class="casesfirst">K</p> - -<p>Kelly <abbr xml:lang="la" lang="la">v.</abbr> Pittsburgh, 104 U. S., 78, (<a href="#Page_62">62</a>)</p> - -<p>Kendall <abbr xml:lang="la" lang="la">v.</abbr> U. S., 12 Peters, 524, (<a href="#Page_107">107</a>)</p> - -<p>Kentucky Railroad Tax Cases, 115 U. S., 321, (<a href="#Page_62">62</a>)</p> - -<p>Kidd <abbr xml:lang="la" lang="la">v.</abbr> Pearson, 128 U. S., 1, (<a href="#Page_73">73</a>)</p> - -<p>Kimmish <abbr xml:lang="la" lang="la">v.</abbr> Ball, 129 U. S., 217, (<a href="#Page_10">10</a>)</p> - -<p>Kingman <abbr xml:lang="la" lang="la">v.</abbr> City of Brockton, 153 Mass., 255, (<a href="#Page_61">61</a>)</p> - -<p>Kirtland <abbr xml:lang="la" lang="la">v.</abbr> Hotchkiss, 100 U. S., 491, (<a href="#Page_53">53</a>, <a href="#Page_54">54</a>)</p> - -<p>Knox <abbr xml:lang="la" lang="la">v.</abbr> Lee, 12 Wallace, 554, (<a href="#Page_40">40</a>)</p> - -<p>Kohl <abbr xml:lang="la" lang="la">v.</abbr> U. S., 91 U. S., 367, (<a href="#Page_100">100</a>)</p> - -<p>Kring <abbr xml:lang="la" lang="la">v.</abbr> Missouri, 107 U. S., 221, (<a href="#Page_224">224</a>)</p> - -<p class="casesfirst">L</p> - -<p>Lamar <i>ex</i> <abbr xml:lang="la" lang="la">v.</abbr> Browne <abbr xml:lang="la" lang="la">et al.</abbr>, 92 U. S., 187, (<a href="#Page_47">47</a>)</p> - -<p>Lascelles <abbr xml:lang="la" lang="la">v.</abbr> Georgia, 148 U. S., 537, (<a href="#Page_152">152</a>, <a href="#Page_153">153</a>, <a href="#Page_154">154</a>)</p> - -<p>Legal Tender Cases, 12 Wallace, 457, (<a href="#Page_156">156</a>)</p> - -<p>Leisy <abbr xml:lang="la" lang="la">v.</abbr> Hardin, 135 U. S., 100, (<a href="#Page_68">68</a>, <a href="#Page_79">79</a>, <a href="#Page_81">81</a>)</p> - -<p>License Cases (The), 5 Howard, 504, (<a href="#Page_10">10</a>, <a href="#Page_32">32</a>, <a href="#Page_97">97</a>)</p> - -<p>Loan Association <abbr xml:lang="la" lang="la">v.</abbr> Topeka, 20 Wallace, 655, (<a href="#Page_52">52</a>, <a href="#Page_61">61</a>)</p> - -<p>Lockner <abbr xml:lang="la" lang="la">v.</abbr> New York, 198 U. S., 45, (<a href="#Page_198">198</a>, <a href="#Page_209">209</a>)</p> - -<p>Lord <abbr xml:lang="la" lang="la">v.</abbr> S. S. Co., 102 U. S., 541, (<a href="#Page_88">88</a>)</p> - -<p>Lottery Cases, 188 U. S., 321, (<a href="#Page_83">83</a>)</p> - -<p>L. S. & M. S. Railway Co. <abbr xml:lang="la" lang="la">v.</abbr> Ohio, 173 U. S., (<a href="#Page_68">68</a>, <a href="#Page_79">79</a>)</p> - -<p>Luria <abbr xml:lang="la" lang="la">v.</abbr> U. S., 231 U. S., 9, (<a href="#Page_221">221</a>)</p> - -<p>Luther <abbr xml:lang="la" lang="la">v.</abbr> Borden, 7 Howard, 1, (<a href="#Page_128">128</a>, <a href="#Page_131">131</a>, <a href="#Page_154">154</a>, <a href="#Page_155">155</a>)</p> - -<p class="casesfirst">M</p> - -<p>Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 177, (<a href="#Page_16">16</a>, <a href="#Page_18">18</a>, <a href="#Page_24">24</a>, <a href="#Page_64">64</a>, <a href="#Page_107">107</a>, <a href="#Page_119">119</a>, <a href="#Page_125">125</a>, <a href="#Page_129">129</a>, <a href="#Page_131">131</a>, <a href="#Page_135">135</a>, <a href="#Page_143">143</a> [<a href="#Footnote_297">note</a>], <a href="#Page_176">176</a> [<a href="#Footnote_381">note</a>], <a href="#Page_185">185</a>)</p> - -<p>Martin <abbr xml:lang="la" lang="la">v.</abbr> Hunter’s Lessee, 1 Wheaton, 304, (<a href="#Page_4">4</a>, <a href="#Page_125">125</a>, <a href="#Page_143">143</a>, <a href="#Page_188">188</a>)</p> - -<p>Mattingly <abbr xml:lang="la" lang="la">v.</abbr> District of Columbia, 97 U. S., 687, (<a href="#Page_97">97</a>)</p> - -<p>Mattox <abbr xml:lang="la" lang="la">v.</abbr> U. S., 156 U. S., 237, (<a href="#Page_226">226</a>)</p> - -<p>Maxwell <abbr xml:lang="la" lang="la">v.</abbr> Dow, 176 U. S., 606, (<a href="#Page_220">220</a>)</p> - -<p>Mayor (The) <i>etc.</i>, of the City of New York <abbr xml:lang="la" lang="la">v.</abbr> Miln, 11 Peters, 102, (<a href="#Page_32">32</a>)</p> - -<p>McCrackin <abbr xml:lang="la" lang="la">v.</abbr> Hayward, 2 Howard, 608, (<a href="#Page_89">89</a>, <a href="#Page_94">94</a>)</p> - -<p>McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 316, (<a href="#Page_3">3</a>, <a href="#Page_6">6</a>, <a href="#Page_7">7</a>, <a href="#Page_9">9</a>, <a href="#Page_10">10</a>, <a href="#Page_19">19</a>, <a href="#Page_26">26</a>, <a href="#Page_31">31</a>, <a href="#Page_34">34</a>, <a href="#Page_38">38</a>, <a href="#Page_51">51</a>, <a href="#Page_52">52</a>, <a href="#Page_53">53</a>, <a href="#Page_54">54</a>, <a href="#Page_66">66</a>, <a href="#Page_156">156</a>, <a href="#Page_187">187</a>)</p> - -<p>McElmayle <abbr xml:lang="la" lang="la">v.</abbr> Cohen, 13 Peters, 312, (<a href="#Page_147">147</a>)</p> - -<p>Metropolitan R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> District of Columbia, 132 U. S., 1, (<a href="#Page_48">48</a>)</p> - -<p>Minor <abbr xml:lang="la" lang="la">v.</abbr> Happersett, 21 Wallace, 162, (<a href="#Page_155">155</a>, <a href="#Page_215">215</a>)</p> - -<p>Mississippi <abbr xml:lang="la" lang="la">v.</abbr> Johnson, 4 Wallace, 475, (<a href="#Page_107">107</a>, <a href="#Page_110">110</a>, <a href="#Page_111">111</a>)</p> - -<p>Missouri Pacific Ry. <abbr xml:lang="la" lang="la">v.</abbr> Nebraska, 164 U. S., 403, (<a href="#Page_95">95</a>)</p> - -<p>Mitchell <abbr xml:lang="la" lang="la">v.</abbr> Clark, 110 U. S., 633, (<a href="#Page_94">94</a>, <a href="#Page_95">95</a>)</p> - -<p>Moore <abbr xml:lang="la" lang="la">v.</abbr> Houston, 3 S. and R. (Pa.), 179, (<a href="#Page_36">36</a>)</p> - -<p>Morgan S. S. Co. <abbr xml:lang="la" lang="la">v.</abbr> La. Board of Health, 118 U. S., 455, (<a href="#Page_68">68</a>, <a href="#Page_79">79</a>)</p> - -<p>Morley <abbr xml:lang="la" lang="la">v.</abbr> L. S. & W. S. R. R., 146 U. S., 162, (<a href="#Page_93">93</a>)</p> - -<p>Mormon Church <abbr xml:lang="la" lang="la">v.</abbr> U. S., 136 U. S., 1, (<a href="#Page_47">47</a>)</p> - -<p>Mugler <abbr xml:lang="la" lang="la">v.</abbr> Kansas, 123 U. S., 623, (<a href="#Page_98">98</a>, <a href="#Page_209">209</a>)</p> - -<p>Munn <abbr xml:lang="la" lang="la">v.</abbr> Illinois, 94 U. S., 113, (<a href="#Page_209">209</a>)</p> - -<p>Murray <abbr xml:lang="la" lang="la">v.</abbr> Charleston, 96 U. S., 432, (<a href="#Page_90">90</a>)</p> - -<p>Murray’s Lessee <abbr xml:lang="la" lang="la">v.</abbr> The Hoboken Land and Improvement Co., 18 Howard, 272, (<a href="#Page_205">205</a>)</p> - -<p><span class="pagenum" id="Page_269">269</span></p> - -<p class="casesfirst">N</p> - -<p>National Bank <abbr xml:lang="la" lang="la">v.</abbr> County of Yankton, 101 U. S., 129, (<a href="#Page_159">159</a>, <a href="#Page_160">160</a>)</p> - -<p>Neal <abbr xml:lang="la" lang="la">v.</abbr> Delaware, 103 U. S., 170, (<a href="#Page_223">223</a>)</p> - -<p>New Orleans Gas Co. <abbr xml:lang="la" lang="la">v.</abbr> Louisiana Light Co., 115 U. S., 650, (<a href="#Page_93">93</a>)</p> - -<p>Nishimura Ekin <abbr xml:lang="la" lang="la">v.</abbr> U. S., 142 U. S., 651, (<a href="#Page_221">221</a>)</p> - -<p>Northern Securities Co. <abbr xml:lang="la" lang="la">v.</abbr> U. S., 193 U. S., 197, (<a href="#Page_84">84</a>)</p> - -<p>Norton <abbr xml:lang="la" lang="la">v.</abbr> Shelby County, 118 U. S., 425, (<a href="#Page_188">188</a>)</p> - -<p class="casesfirst">O</p> - -<p>Ogden <abbr xml:lang="la" lang="la">v.</abbr> Saunders, 12 Wheaton, 332, (<a href="#Page_188">188</a>)</p> - -<p>Ohio (The) and Mississippi R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Wheeler, 1 Black, 286, (<a href="#Page_142">142</a>)</p> - -<p>Osborn <abbr xml:lang="la" lang="la">v.</abbr> Bank of the U. S., 9 Wheaton, 738, (<a href="#Page_136">136</a>, <a href="#Page_137">137</a>)</p> - -<p class="casesfirst">P</p> - -<p>Packet Co. <abbr xml:lang="la" lang="la">v.</abbr> Keokuk, 95 U. S., 80, (<a href="#Page_81">81</a>)</p> - -<p>Pana <abbr xml:lang="la" lang="la">v.</abbr> Bowler, 107 U. S., 529, (<a href="#Page_144">144</a>)</p> - -<p>Parker <abbr xml:lang="la" lang="la">v.</abbr> Davis, 12 Wallace, 79, (<a href="#Page_39">39</a>)</p> - -<p>Passenger (The) Cases, 7 Howard, 283, (<a href="#Page_81">81</a>)</p> - -<p>Patterson <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, 97 U. S., 501, (<a href="#Page_44">44</a>)</p> - -<p>Paul <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 8 Wallace, 168, (<a href="#Page_71">71</a>, <a href="#Page_149">149</a>, <a href="#Page_198">198</a>, <a href="#Page_213">213</a>)</p> - -<p>Pembina Mining Co. <abbr xml:lang="la" lang="la">v.</abbr> Pennsylvania, 125 U. S., 181, (<a href="#Page_207">207</a>)</p> - -<p>Pennoyer <abbr xml:lang="la" lang="la">v.</abbr> Neff, 95 U. S., 714, (<a href="#Page_96">96</a>, <a href="#Page_151">151</a>)</p> - -<p>Pennsylvania College Cases, (Washington and Jefferson Colleges), 13 Wallace, 190, (<a href="#Page_91">91</a>)</p> - -<p>Pensacola Telegraph Co. <abbr xml:lang="la" lang="la">v.</abbr> Western Union Telegraph Co., 96 U. S., 1, (<a href="#Page_32">32</a>, <a href="#Page_67">67</a>, <a href="#Page_70">70</a>)</p> - -<p>People <abbr xml:lang="la" lang="la">v.</abbr> Ruggles, 8 Johns (N.Y.), 290, (<a href="#Page_196">196</a>)</p> - -<p>Pfeiffer <abbr xml:lang="la" lang="la">v.</abbr> Board of Education, 77 N. W. Rep., 250, (<a href="#Page_196">196</a>, <a href="#Page_203">203</a>)</p> - -<p>Philadelphia and Southern S. S. Co. <abbr xml:lang="la" lang="la">v.</abbr> Pa., 122 U. S., 325, (<a href="#Page_59">59</a>)</p> - -<p>Pierce <abbr xml:lang="la" lang="la">v.</abbr> Drew, 136 Mass., 75, (<a href="#Page_100">100</a>)</p> - -<p>Pollock <abbr xml:lang="la" lang="la">v.</abbr> Farmer’s Loan and Trust Co., 158 U. S., 601, (<a href="#Page_190">190</a>)</p> - -<p>P. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Pa., 15 Wallace, 300, (<a href="#Page_52">52</a>, <a href="#Page_53">53</a>)</p> - -<p>Presser <abbr xml:lang="la" lang="la">v.</abbr> Illinois, 116 U. S., 252, (<a href="#Page_220">220</a>)</p> - -<p>Prize (The) Cases, 2 Black, 635, (<a href="#Page_46">46</a>)</p> - -<p>Pullman Car Co., 64 Fed. Reporter, 724, (<a href="#Page_85">85</a>)</p> - -<p>Pumpelly <abbr xml:lang="la" lang="la">v.</abbr> Green Bay Co., 13 Wallace, 166, (<a href="#Page_99">99</a>)</p> - -<p class="casesfirst">R</p> - -<p>Railroad Co. <abbr xml:lang="la" lang="la">v.</abbr> Huson, 95 U. S., 465, (<a href="#Page_79">79</a>, <a href="#Page_81">81</a>)</p> - -<p>Railroad Co. <abbr xml:lang="la" lang="la">v.</abbr> Tennessee, 101 U. S., 337, (<a href="#Page_141">141</a>)</p> - -<p>Rasmussen <abbr xml:lang="la" lang="la">v.</abbr> U. S., 197 U. S., (<a href="#Page_49">49</a>, <a href="#Page_163">163</a>)</p> - -<p>Rex <abbr xml:lang="la" lang="la">v.</abbr> Dawson, 5 State Trials, (<a href="#Page_45">45</a>)</p> - -<p>Reynolds <abbr xml:lang="la" lang="la">v.</abbr> U. S., 98 U. S., 145, (<a href="#Page_195">195</a>, <a href="#Page_203">203</a>)</p> - -<p>Rhodes <abbr xml:lang="la" lang="la">v.</abbr> Iowa, 170 U. S., 412, (<a href="#Page_81">81</a>)</p> - -<p>Riggs <abbr xml:lang="la" lang="la">v.</abbr> Johnson County, 6 Wallace, 166, (<a href="#Page_143">143</a>)</p> - -<p>Robbins <abbr xml:lang="la" lang="la">v.</abbr> Shelby County Taxing District, 120 U. S., 489, (<a href="#Page_78">78</a>)</p> - -<p>Robertson <abbr xml:lang="la" lang="la">v.</abbr> Baldwin, 165 U. S., 275, (<a href="#Page_204">204</a>)</p> - -<p>Robertson <abbr xml:lang="la" lang="la">v.</abbr> Cease, 97 U. S., 646, (<a href="#Page_118">118</a>)</p> - -<p>Rogers <abbr xml:lang="la" lang="la">v.</abbr> Alabama, 192 U. S., 226, (<a href="#Page_17">17</a>)</p> - -<p class="casesfirst">S</p> - -<p>Salt Co. <abbr xml:lang="la" lang="la">v.</abbr> E. Saginaw, 13 Wallace, 373, (<a href="#Page_91">91</a>)</p> - -<p><span class="pagenum" id="Page_270">270</span> -Sands <abbr xml:lang="la" lang="la">v.</abbr> Manistee River Improvement Co., 123 U. S., 238, (<a href="#Page_75">75</a>, <a href="#Page_157">157</a>)</p> - -<p>Savings and Loan Society <abbr xml:lang="la" lang="la">v.</abbr> Multnomah County, 169 U. S., 421, (<a href="#Page_54">54</a>)</p> - -<p>Schellenberger <abbr xml:lang="la" lang="la">v.</abbr> Pa., 171 U. S., 1, (<a href="#Page_68">68</a>, <a href="#Page_81">81</a>)</p> - -<p>Scott <abbr xml:lang="la" lang="la">v.</abbr> Sandford, 19 Howard, 393, (<a href="#Page_58">58</a>)</p> - -<p>Secretary (The) <abbr xml:lang="la" lang="la">v.</abbr> McGarrahan, 9 Wallace, 298, (<a href="#Page_189">189</a>)</p> - -<p>Security Mutual Life Insurance Co. <abbr xml:lang="la" lang="la">v.</abbr> Prewitt, 202 U. S., 246, (<a href="#Page_143">143</a>)</p> - -<p>Shreveport (The) Case (Houston East and West Texas Railway Co. <abbr xml:lang="la" lang="la">v.</abbr> U. S.;<br /> -Texas and Pacific Railway Co. <abbr xml:lang="la" lang="la">v.</abbr> U. S.), 234 U. S., 342, (<a href="#Page_88">88</a>)</p> - -<p>Sinnot <abbr xml:lang="la" lang="la">v.</abbr> Davenport, 22 Howard, 227 (<a href="#Page_32">32</a>)</p> - -<p>Slaughter House Cases, 16 Wallace, 77, (<a href="#Page_150">150</a>, <a href="#Page_156">156</a>, <a href="#Page_200">200</a>, <a href="#Page_212">212</a>, <a href="#Page_214">214</a>, <a href="#Page_215">215</a>)</p> - -<p>Smith <abbr xml:lang="la" lang="la">v.</abbr> Alabama, 124 U. S., 465, (<a href="#Page_145">145</a>)</p> - -<p>South Carolina <abbr xml:lang="la" lang="la">v.</abbr> U. S., 199 U. S., 437, (<a href="#Page_62">62</a>)</p> - -<p>South Dakota <abbr xml:lang="la" lang="la">v.</abbr> North Dakota, 192 U. S., 286, (<a href="#Page_139">139</a>)</p> - -<p>Southern Pacific Railroad Co. <abbr xml:lang="la" lang="la">v.</abbr> California, 118 U. S., 109, (<a href="#Page_137">137</a>)</p> - -<p>Spaulding <abbr xml:lang="la" lang="la">v.</abbr> Vilas, 161 U. S., 483, (<a href="#Page_107">107</a>)</p> - -<p>Spring Valley Water Works <abbr xml:lang="la" lang="la">v.</abbr> Schottler, 110 U. S., 347, (<a href="#Page_209">209</a>)</p> - -<p>Sproule <abbr xml:lang="la" lang="la">v.</abbr> Fredericks, 69 Miss., 898, (<a href="#Page_3">3</a>)</p> - -<p>Stanley <abbr xml:lang="la" lang="la">v.</abbr> Schwalby, 162 U. S., 255, (<a href="#Page_138">138</a>)</p> - -<p>State <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Simons, 32 Minn., 540, (<a href="#Page_136">136</a>)</p> - -<p>State <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Stone, 120 Missouri, 428, (<a href="#Page_111">111</a>, <a href="#Page_131">131</a>, <a href="#Page_189">189</a>)</p> - -<p>State <abbr xml:lang="la" lang="la">ex rel.</abbr> Weiss <abbr xml:lang="la" lang="la">v.</abbr> District Board, 76 Wis., 177, (<a href="#Page_196">196</a>)</p> - -<p>Steamboat (The) <i>Magnolia</i>, 20 Howard, 296, (<a href="#Page_137">137</a>)</p> - -<p>Stone <abbr xml:lang="la" lang="la">v.</abbr> City of Charleston, 114 Mass., 214, (<a href="#Page_32">32</a>)</p> - -<p>Strander <abbr xml:lang="la" lang="la">v.</abbr> West Virginia, 100 U. S., 303, (<a href="#Page_218">218</a>)</p> - -<p>Sturgis <abbr xml:lang="la" lang="la">v.</abbr> Crowningshield, 4 Wheaton, 122 (<a href="#Page_188">188</a>)</p> - -<p>Supervisors of Elections (Case of), 114 Mass., 247, (<a href="#Page_135">135</a>)</p> - -<p class="casesfirst">T</p> - -<p>Talbot <abbr xml:lang="la" lang="la">v.</abbr> Seeman, 1 Cranch, 38, (<a href="#Page_148">148</a>)</p> - -<p>Taylor <abbr xml:lang="la" lang="la">v.</abbr> Place, 4 R. I., 324, (<a href="#Page_19">19</a>, <a href="#Page_31">31</a>)</p> - -<p>Telegraph Co. <abbr xml:lang="la" lang="la">v.</abbr> Texas, 105 U. S., 460, (<a href="#Page_80">80</a>)</p> - -<p>Texas <abbr xml:lang="la" lang="la">v.</abbr> White, 7 Wallace, 700, (<a href="#Page_156">156</a>)</p> - -<p>Thompson <abbr xml:lang="la" lang="la">v.</abbr> Utah, 170 U. S., 343, (<a href="#Page_160">160</a>, <a href="#Page_163">163</a>, <a href="#Page_224">224</a>)</p> - -<p>Thompson <abbr xml:lang="la" lang="la">v.</abbr> Whitman, 18 Wallace, 457, (<a href="#Page_146">146</a>)</p> - -<p>Transportation Co. <abbr xml:lang="la" lang="la">v.</abbr> California Railroad Commission, 236 U. S., 151, (<a href="#Page_88">88</a>)</p> - -<p>Transportation Co. <abbr xml:lang="la" lang="la">v.</abbr> Wheeling, 99 U. S., 273, (<a href="#Page_52">52</a>, <a href="#Page_82">82</a>)</p> - -<p>Trebilcock <abbr xml:lang="la" lang="la">v.</abbr> Wilson, 12 Wallace, 687, (<a href="#Page_39">39</a>)</p> - -<p>Trustees of Dartmouth College <abbr xml:lang="la" lang="la">v.</abbr> Woodward, 4 Wheaton, 518, (<a href="#Page_91">91</a>)</p> - -<p>Turner <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 107 U. S., 38, (<a href="#Page_81">81</a>)</p> - -<p>Twining <abbr xml:lang="la" lang="la">v.</abbr> State of New Jersey, 211 U. S., 78, (<a href="#Page_221">221</a>)</p> - -<p class="casesfirst">U</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Aaron Burr, Cotton’s Constitutional Opinions of John Marshall, i., 100, (<a href="#Page_188">188</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Black, 128 U. S., 40, (<a href="#Page_107">107</a>, <a href="#Page_111">111</a>, <a href="#Page_112">112</a>, <a href="#Page_189">189</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Blaine, 139 U. S., 306, (<a href="#Page_107">107</a>, <a href="#Page_189">189</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Boyd, 116 U. S., 616, (<a href="#Page_198">198</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Cruikshank, 92 U. S., 542 (<a href="#Page_156">156</a>, <a href="#Page_197">197</a>, <a href="#Page_217">217</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Del. & Hudson Ry., 213 U. S., 366 (<a href="#Page_88">88</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> E. C. Knight Co., 165 U. S., 1, (<a href="#Page_72">72</a>)</p> - -<p><span class="pagenum" id="Page_271">271</span> -U. S. <abbr xml:lang="la" lang="la">ex rel.</abbr> Daly, 28 App. D. C., 552;<br /> -35 Wash. Law. Rep., 81, (<a href="#Page_111">111</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Duell, 172 U. S., 576, (<a href="#Page_222">222</a>)</p> - -<p>U. S. <em>ex rel.</em> Newcomb Motor Co., 30 App. D. C., 464;<br />36 Wash. Law Rep., 150, (<a href="#Page_111">111</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Fisher, 2 Cranch, 396, (<a href="#Page_26">26</a>, <a href="#Page_27">27</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Freight Association, 166 U. S., 290, (<a href="#Page_127">127</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Holliday, 3 Wallace, 407, (<a href="#Page_88">88</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Lee, 106 U. S., 196, (<a href="#Page_133">133</a>, <a href="#Page_141">141</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Louisville and Nashville R. R. Co., 236 U. S., 318, (<a href="#Page_198">198</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Marigold, 9 Howard, 560, (<a href="#Page_42">42</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Rauscher, 119 U. S., 407, (<a href="#Page_153">153</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Rodgers, 150 U. S., 249, (<a href="#Page_46">46</a>, <a href="#Page_222">222</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> R. R. Co., 17 Wallace, 322, (<a href="#Page_59">59</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Smith, 5 Wheaton, 153, (<a href="#Page_45">45</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Texas, 143 U. S., 621, (<a href="#Page_139">139</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Villato, 2 Dallas, 373, (<a href="#Page_221">221</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Windom, 137 U. S., 636, (<a href="#Page_107">107</a>, <a href="#Page_189">189</a>)</p> - -<p>U. S. <abbr xml:lang="la" lang="la">v.</abbr> Wong Kim Ark, 169 U. S., 649, (<a href="#Page_221">221</a>)</p> - -<p class="casesfirst">V</p> - -<p>Vanini <abbr xml:lang="la" lang="la">et al.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Paine <abbr xml:lang="la" lang="la">et al.</abbr>, 1 Harr. (Del.) 65, (<a href="#Page_44">44</a>)</p> - -<p>Veazie Bank <abbr xml:lang="la" lang="la">v.</abbr> Fenno, 8 Wallace, 533, (<a href="#Page_62">62</a>)</p> - -<p class="casesfirst">W</p> - -<p>Walker <abbr xml:lang="la" lang="la">v.</abbr> Sauvinet, 92 U. S., 90, (<a href="#Page_220">220</a>)</p> - -<p>Walton <abbr xml:lang="la" lang="la">v.</abbr> Missouri, 91 U. S., 275, (<a href="#Page_76">76</a>, <a href="#Page_77">77</a>)</p> - -<p>Ward <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 12 Wallace, 418, (<a href="#Page_150">150</a>)</p> - -<p>Weaver <abbr xml:lang="la" lang="la">v.</abbr> Fegely, 29 Pa. St., 27, (<a href="#Page_36">36</a>)</p> - -<p>Weeks <abbr xml:lang="la" lang="la">v.</abbr> U. S., 232 U. S., 383, (<a href="#Page_198">198</a>)</p> - -<p>Weems <abbr xml:lang="la" lang="la">v.</abbr> U. S., 217 U. S., 394, (<a href="#Page_49">49</a>)</p> - -<p>Wellington, Petitioner, 16 Pickering (Mass.), 96, (<a href="#Page_186">186</a>)</p> - -<p>Wells <abbr xml:lang="la" lang="la">v.</abbr> Bain, 75 Pa. St., 39, (<a href="#Page_3">3</a>)</p> - -<p>West <abbr xml:lang="la" lang="la">v.</abbr> Cabell, 153 U. S., 78, (<a href="#Page_198">198</a>)</p> - -<p>West <abbr xml:lang="la" lang="la">v.</abbr> Louisiana, 194 U. S., 258, (<a href="#Page_220">220</a>)</p> - -<p>Western Union Telegraph Co. <abbr xml:lang="la" lang="la">v.</abbr> Call Publishing Co., 181 U. S., 92, (<a href="#Page_145">145</a>)</p> - -<p>Weston <abbr xml:lang="la" lang="la">et al.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> City of Charleston, 2 Peters, 466, (<a href="#Page_13">13</a>)</p> - -<p>Wheaton <abbr xml:lang="la" lang="la">v.</abbr> Peters, 8 Peters, 591 (<a href="#Page_43">43</a>)</p> - -<p>Whitten <abbr xml:lang="la" lang="la">v.</abbr> Tomlinson, 160 U. S., 231, (<a href="#Page_143">143</a>)</p> - -<p>Wiley <abbr xml:lang="la" lang="la">v.</abbr> Sinkler, 179 U. S., 58, (<a href="#Page_157">157</a>, <a href="#Page_177">177</a>, <a href="#Page_216">216</a>)</p> - -<p>Williamette Iron Bridge Co. <abbr xml:lang="la" lang="la">v.</abbr> Hatch, 125 U. S., 1, (<a href="#Page_32">32</a>)</p> - -<p>Williamson <abbr xml:lang="la" lang="la">v.</abbr> Berry, 8 Howard, 540, (<a href="#Page_147">147</a>)</p> - -<p>Wilson <abbr xml:lang="la" lang="la">v.</abbr> New Ferris, Receivers Mo. Ok. and G. Railway Co., (<a href="#Page_64">64</a>)</p> - -<p>Wisconsin Central R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Price County, 133 U. S., 496, (<a href="#Page_60">60</a>)</p> - -<p>Wisconsin <abbr xml:lang="la" lang="la">v.</abbr> Pelican Insurance Co., 127 U. S., 265, (<a href="#Page_140">140</a>)</p> - -<p>Woodruff <abbr xml:lang="la" lang="la">v.</abbr> Trapnall, 10 Howard, 190, (<a href="#Page_89">89</a>, <a href="#Page_90">90</a>)</p> - -<p class="casesfirst">Y</p> - -<p>Yick Wo <abbr xml:lang="la" lang="la">v.</abbr> Hopkins, 118 U. S., 356, (<a href="#Page_206">206</a>, <a href="#Page_211">211</a>)</p> - -<p><span class="pagenum" id="Page_273">273</span></p> -</div> - -<hr /> - -<div class="chapter"><div class="index"> -<h2 id="INDEX" class="nobreak">INDEX</h2> - -<ul class="index"> -<li class="ifrst">A</li> - -<li class="indx">Aliens, as citizens and allegiance of, <a href="#Page_1">1</a></li> - -<li class="indx">Allegiance, <a href="#Page_222">222</a></li> - -<li class="indx">Ambassadors, <a href="#Page_119">119</a>, <a href="#Page_120">120</a>, <a href="#Page_137">137</a></li> - -<li class="indx"><a id="Amendments"></a>Amendments, protect fundamental rights, <a href="#Page_22">22</a>;</li> -<li class="isub1">the Sixteenth, <a href="#Page_23">23</a>, <a href="#Page_24">24</a>, <a href="#Page_57">57</a>, <a href="#Page_61">61</a>;</li> -<li class="isub1">I.-XVII., <a href="#Page_28">28</a>, <a href="#Page_29">29</a>, <a href="#Page_57">57</a>, <a href="#Page_58">58</a>, <a href="#Page_61">61</a>;</li> -<li class="isub1">Fourteenth, <a href="#Page_96">96</a>, <a href="#Page_97">97</a>;</li> -<li class="isub1">Eleventh, the, <a href="#Page_114">114</a>, <a href="#Page_115">115</a>;</li> -<li class="isub1">first ten, <a href="#Page_173">173–175</a>, <a href="#Page_199">199</a>, <a href="#Page_200">200</a>;</li> -<li class="isub1">Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, <a href="#Page_175">175</a>;</li> -<li class="isub1">Thirteenth, <a href="#Page_176">176</a>, <a href="#Page_198">198</a>, <a href="#Page_200">200</a>;</li> -<li class="isub1">Fourteenth, <a href="#Page_176">176</a>, <a href="#Page_198">198</a>, <a href="#Page_200">200</a>, <a href="#Page_206">206</a>, <a href="#Page_207">207</a>, <a href="#Page_216">216</a>, <a href="#Page_217">217</a>;</li> -<li class="isub1">Fifth, <a href="#Page_198">198</a>;</li> -<li class="isub1">Fifteenth, <a href="#Page_222">222</a>, <a href="#Page_223">223</a>;</li> -<li class="isub1">Ninth, <a href="#Page_200">200</a>;</li> -<li class="isub1">Tenth, <a href="#Page_200">200</a>, <a href="#Page_203">203</a>;</li> -<li class="isub1">Fourth, <a href="#Page_203">203</a>;</li> -<li class="isub1">Seventh, <a href="#Page_210">210</a></li> - -<li class="indx">Anti-Trust Act, <a href="#Page_83">83</a>, <a href="#Page_84">84</a>, <a href="#Page_85">85</a></li> - -<li class="indx">Appropriations, <a href="#Page_22">22</a>, <a href="#Page_171">171</a>;</li> -<li class="isub1">of Representatives and Senators, <a href="#Page_179">179</a></li> - -<li class="indx">Arizona, admission of, <a href="#Page_158">158</a></li> - -<li class="indx">Army, <a href="#Page_171">171</a></li> - -<li class="indx">Asylum, right of, <a href="#Page_152">152</a>, <a href="#Page_153">153</a></li> - -<li class="indx">Attainder, bill of, <a href="#Page_22">22</a>, <a href="#Page_171">171</a>, <a href="#Page_172">172</a></li> - -<li class="ifrst">B</li> - -<li class="indx">Bank, State, <a href="#Page_89">89</a>, <a href="#Page_90">90</a></li> - -<li class="indx">Bankruptcies, <a href="#Page_36">36</a>, <a href="#Page_37">37</a></li> - -<li class="indx">Bible, in public schools, <a href="#Page_202">202</a>, <a href="#Page_203">203</a></li> - -<li class="indx">Bill of credit, <a href="#Page_41">41</a></li> - -<li class="indx">Bill of Rights, <a href="#Page_173">173–175</a>;</li> -<li class="isub1">the Constitution a, <a href="#Page_187">187</a>, <a href="#Page_210">210</a>, <a href="#Page_211">211</a></li> - -<li class="indx">Bonds, <a href="#Page_90">90</a></li> - -<li class="indx">Boycott, <a href="#Page_84">84</a></li> - -<li class="ifrst">C</li> - -<li class="indx">Cabinet, the, <a href="#Page_105">105</a>, <a href="#Page_106">106</a></li> - -<li class="indx">California, law of, held constitutional, <a href="#Page_220">220</a></li> - -<li class="indx">Carriers, Common, <a href="#Page_87">87</a></li> - -<li class="indx">Charters, <a href="#Page_91">91</a></li> - -<li class="indx">Checks and balances, <a href="#Page_164">164</a>, <a href="#Page_165">165</a>;</li> -<li class="isub1">on the Executive, <a href="#Page_166">166–169</a>;</li> -<li class="isub1">on Congress, <a href="#Page_170">170–177</a>, <a href="#Page_178">178</a>;</li> -<li class="isub1">on the States, <a href="#Page_176">176–181</a></li> - -<li class="indx">Checks on Congress, <a href="#Page_27">27</a></li> - -<li class="indx">Chief Justice, in Court of Impeachment, <a href="#Page_103">103</a>, <a href="#Page_108">108</a>, <a href="#Page_109">109</a></li> - -<li class="indx">Cities, jurisdiction over, <a href="#Page_48">48</a></li> - -<li class="indx">Citizen, of a territory, of a State, <a href="#Page_141">141</a>, <a href="#Page_142">142</a>;</li> -<li class="isub1">privileges and immunities of, <a href="#Page_149">149</a>, <a href="#Page_150">150</a>, <a href="#Page_212">212</a>, <a href="#Page_215">215</a>, <a href="#Page_220">220</a>;</li> -<li class="isub1">as participant in the federal government, <a href="#Page_182">182</a>;</li> -<li class="isub1">as elector, <a href="#Page_216">216</a></li> - -<li class="indx">Citizens, privileges and immunities of, <a href="#Page_149">149</a>, <a href="#Page_150">150</a>, <a href="#Page_163">163</a> (note)</li> - -<li class="indx">Citizenship, defined, <a href="#Page_212">212</a>;</li> -<li class="isub1">two citizenships, <a href="#Page_212">212</a>, <a href="#Page_213">213</a>, <a href="#Page_226">226–229</a></li> - -<li class="indx">Civil Rights Bill, <a href="#Page_218">218</a>, <a href="#Page_219">219</a></li> - -<li class="indx">Comity, the law of State, <a href="#Page_146">146–163</a></li> - -<li class="indx">Commerce, regulation of interstate, <a href="#Page_22">22</a>;</li> -<li class="isub1">law of, <a href="#Page_63">63–88</a>;</li> -<li class="isub1">regulation of, belongs to sovereignty, <a href="#Page_63">63</a>, <a href="#Page_64">64</a>;</li> -<li class="isub1">defined, <a href="#Page_67">67</a>;</li> -<li class="isub1">State and interstate, <a href="#Page_63">63–88</a>;</li> -<li class="isub1">unlawful restraint of, <a href="#Page_72">72</a>;</li> -<li class="isub1">when an article is of, <a href="#Page_73">73</a>;</li> -<li class="isub1">distinguished from manufacture, <a href="#Page_73">73</a>;</li> -<li class="isub1">“taxation of commerce,” meaning of, <a href="#Page_75">75</a>;</li> -<li class="isub1">principal of regulation of, <a href="#Page_76">76</a>, <a href="#Page_77">77</a>, <a href="#Page_78">78</a>;</li> -<li class="isub1">interstate, <a href="#Page_78">78</a>, <a href="#Page_88">88</a>;</li> -<li class="isub1">intrastate, <a href="#Page_79">79</a>, <a href="#Page_80">80</a>, <a href="#Page_88">88</a>;</li> -<li class="isub1">“foreign commerce,” <a href="#Page_87">87</a>, <a href="#Page_88">88</a></li> - -<li class="indx">Confederation, a league, <a href="#Page_7">7</a>;</li> -<li class="isub1">unable to regulate commerce, <a href="#Page_66">66</a></li> - -<li class="indx"><a id="Congress"></a>Congress, law making by, <a href="#Page_2">2</a>, <a href="#Page_18">18–50</a>;<span class="pagenum" id="Page_274">274</span></li> -<li class="isub1">determines extent of taxation, regulates commerce, protects citizens, determines jurisdiction of federal courts, assigns duties and powers to the President, <a href="#Page_25">25</a>;</li> -<li class="isub1">powers of, political, <a href="#Page_26">26</a>;</li> -<li class="isub1">abuse of powers by, <a href="#Page_27">27</a>;</li> -<li class="isub1">checks on, <a href="#Page_27">27</a>;</li> -<li class="isub1">test of authority of, <a href="#Page_30">30</a>, <a href="#Page_31">31</a>;</li> -<li class="isub1">powers of, derived, <a href="#Page_34">34</a>, <a href="#Page_35">35</a>;</li> -<li class="isub1">war power of, <a href="#Page_46">46</a>;</li> -<li class="isub1">power over territory, <a href="#Page_48">48</a>, <a href="#Page_49">49</a>, <a href="#Page_50">50</a>;</li> -<li class="isub1">power of, over commerce, <a href="#Page_63">63–88</a>;</li> -<li class="isub1">limitation of powers of, as to commerce, <a href="#Page_69">69–88</a>;</li> -<li class="isub1">debates in, as evidence in court, <a href="#Page_127">127</a>;</li> -<li class="isub1">decides political questions, <a href="#Page_128">128</a>;</li> -<li class="isub1">governs territory, <a href="#Page_158">158–163</a>;</li> -<li class="isub1">power over outlying possessions, <a href="#Page_161">161</a>, <a href="#Page_162">162</a>, <a href="#Page_163">163</a>;</li> -<li class="isub1">checks on, <a href="#Page_170">170–176</a>;</li> -<li class="isub1">unconstitutional legislation, <a href="#Page_218">218</a>, <a href="#Page_219">219</a></li> - -<li class="indx">Constitution, the supreme law, <a href="#Page_1">1</a>;</li> -<li class="isub1">essential to sovereignty, <a href="#Page_2">2</a>;</li> -<li class="isub1">ordained by the people, <a href="#Page_2">2</a>;</li> -<li class="isub1">a practical instrument, <a href="#Page_19">19</a>, <a href="#Page_20">20</a>;</li> -<li class="isub1">provides only for judicial interpretation, <a href="#Page_24">24</a>;</li> -<li class="isub1">relative rank with act of Congress, <a href="#Page_24">24</a>, <a href="#Page_25">25</a>;</li> -<li class="isub1">unwritten, <a href="#Page_27">27</a>;</li> -<li class="isub1">how amended, <a href="#Page_180">180</a>, <a href="#Page_181">181</a>;</li> -<li class="isub1">administrative provisions in, <a href="#Page_191">191</a>, <a href="#Page_192">192</a>;</li> -<li class="isub1">essential features of, <a href="#Page_194">194</a></li> - -<li class="indx">Constitutions, State, 1776–1787, <a href="#Page_21">21</a>;</li> -<li class="isub1">limit Legislatures, <a href="#Page_22">22</a>, <a href="#Page_23">23</a></li> - -<li class="indx">Consuls, <a href="#Page_119">119</a>, <a href="#Page_120">120</a>, <a href="#Page_137">137</a></li> - -<li class="indx">Contracts, between citizens of different States, <a href="#Page_37">37</a>, <a href="#Page_38">38</a>;</li> -<li class="isub1">obligation of, <a href="#Page_37">37</a>;</li> -<li class="isub1">a lawful, <a href="#Page_40">40</a>;</li> -<li class="isub1">law of, the, <a href="#Page_89">89–101</a>;</li> -<li class="isub1">obligation of, under the Constitution, <a href="#Page_93">93</a>, <a href="#Page_94">94</a>;</li> -<li class="isub1">constitutional use of the word, <a href="#Page_98">98</a></li> - -<li class="indx">Convention, <a href="#Page_107">107</a>, <a href="#Page_108">108</a></li> - -<li class="indx">Convention (federal), <a href="#Page_6">6</a>;</li> -<li class="isub1">to amend Constitution, <a href="#Page_180">180</a>, <a href="#Page_181">181</a></li> - -<li class="indx">Cooley, quoted, <a href="#Page_205">205</a></li> - -<li class="indx">Copyrights, <a href="#Page_36">36</a>, <a href="#Page_43">43</a></li> - -<li class="indx">Corporations, municipal, <a href="#Page_59">59</a>;</li> -<li class="isub1">as citizen, <a href="#Page_139">139</a>, <a href="#Page_142">142</a>;</li> -<li class="isub1">rights of, <a href="#Page_139">139</a>, <a href="#Page_140">140</a>, <a href="#Page_149">149</a></li> - -<li class="indx">Counterfeiting, <a href="#Page_36">36</a>, <a href="#Page_41">41</a>, <a href="#Page_42">42</a></li> - -<li class="indx">Counties, jurisdiction over, <a href="#Page_48">48</a></li> - -<li class="indx">Courts, inferior, <a href="#Page_122">122</a> <abbr xml:lang="la" lang="la">et seq.</abbr></li> - -<li class="indx">Courts, Territorial, <a href="#Page_125">125</a></li> - -<li class="indx">Courts, Supreme and inferior, <a href="#Page_113">113</a>, <a href="#Page_122">122</a>, <a href="#Page_123">123</a>;</li> -<li class="isub1">jurisdiction of federal, <a href="#Page_115">115</a> <abbr xml:lang="la" lang="la">et seq.</abbr>;</li> -<li class="isub1">Territorial, <a href="#Page_125">125</a>;</li> -<li class="isub1">political questions and the, <a href="#Page_126">126</a>;</li> -<li class="isub1">do not decide political questions, <a href="#Page_128">128</a>;</li> -<li class="isub1">province and duty of, <a href="#Page_129">129</a>;</li> -<li class="isub1">judicial supremacy, <a href="#Page_129">129–131</a>;</li> -<li class="isub1">essential power of the Supreme Court, <a href="#Page_142">142</a>, <a href="#Page_143">143</a>;</li> -<li class="isub1">federal sitting as State, <a href="#Page_144">144</a>, <a href="#Page_145">145</a>;</li> -<li class="isub1">limitation of federal, <a href="#Page_178">178</a></li> - -<li class="ifrst">D</li> - -<li class="indx">Debts, of the U. S., <a href="#Page_40">40</a></li> - -<li class="indx">Domain, eminent, exercise of, by U. S. or the States, <a href="#Page_95">95</a>, <a href="#Page_97">97</a>, <a href="#Page_98">98</a>, <a href="#Page_99">99</a>, <a href="#Page_100">100</a></li> - -<li class="indx">“Due process of law,” charitable institutions not entitled to, or a person, <a href="#Page_60">60</a>;</li> -<li class="isub1">a fundamental right, <a href="#Page_95">95</a>, <a href="#Page_204">204</a>, <a href="#Page_220">220</a></li> - -<li class="indx">Duties, export, <a href="#Page_22">22</a>; uniform, <a href="#Page_40">40</a>, <a href="#Page_171">171</a></li> - -<li class="indx">Duty, a ministerial, <a href="#Page_110">110</a>, <a href="#Page_111">111</a>, <a href="#Page_112">112</a></li> - -<li class="ifrst">E</li> - -<li class="indx">Election, disputed, of President or Vice-President, <a href="#Page_180">180</a></li> - -<li class="indx">Elections, disputed presidential, <a href="#Page_167">167</a></li> - -<li class="indx">Electors, denial of right of, <a href="#Page_179">179</a></li> - -<li class="indx">England, as sovereign, <a href="#Page_2">2</a></li> - -<li class="indx">Excises, <a href="#Page_40">40</a>, <a href="#Page_171">171</a></li> - -<li class="indx">Executive, law of, <a href="#Page_102">102–112</a>;</li> -<li class="isub1">checks on, <a href="#Page_166">166–169</a></li> - -<li class="indx">Exemption, from taxation (Churches, Schools, etc.), <a href="#Page_60">60</a>;</li> -<li class="isub1">from income tax, <a href="#Page_61">61</a></li> - -<li class="indx">Expatriation, <a href="#Page_222">222</a></li> - -<li class="indx">Expenditures, public statement of, <a href="#Page_22">22</a></li> - -<li class="indx"><i xml:lang="la" lang="la">Ex post facto</i> law, <a href="#Page_22">22</a>, <a href="#Page_171">171</a>, <a href="#Page_177">177</a>, <a href="#Page_224">224</a></li> - -<li class="ifrst">F<span class="pagenum" id="Page_275">275</span></li> - -<li class="indx"><cite>Federalist, The</cite>, quoted or cited, <a href="#Page_4">4</a>, <a href="#Page_8">8</a>, <a href="#Page_12">12</a>, <a href="#Page_13">13</a>, <a href="#Page_17">17</a>, <a href="#Page_33">33</a>, <a href="#Page_34">34</a>, <a href="#Page_35">35</a>, <a href="#Page_36">36</a>, <a href="#Page_116">116</a>, <a href="#Page_117">117</a>, <a href="#Page_118">118</a>, <a href="#Page_187">187</a></li> - -<li class="indx">Fee, license, <a href="#Page_74">74</a></li> - -<li class="indx">Felonies, <a href="#Page_44">44</a></li> - -<li class="indx">Florida, as a territory, status in U. S., <a href="#Page_127">127</a></li> - -<li class="indx">France, as sovereign, <a href="#Page_2">2</a></li> - -<li class="indx">Fugitives from justice, <a href="#Page_151">151</a>, <a href="#Page_152">152</a>;</li> -<li class="isub1">political, <a href="#Page_153">153</a>, <a href="#Page_154">154</a></li> - -<li class="indx">Ft. Leavenworth Military Reservation, <a href="#Page_48">48</a></li> - -<li class="ifrst">G</li> - -<li class="indx">Gallatin, Albert, on Louisiana purchase, <a href="#Page_14">14</a>, <a href="#Page_15">15</a></li> - -<li class="indx">Government, representative, <a href="#Page_2">2</a>;</li> -<li class="isub1">republican form guaranteed, <a href="#Page_6">6</a>;</li> -<li class="isub1">a unit, <a href="#Page_19">19</a>;</li> -<li class="isub1">distinguished from sovereignty, <a href="#Page_23">23</a>;</li> -<li class="isub1">limited, affected by Sixteenth Amendment, <a href="#Page_23">23</a>, <a href="#Page_24">24</a>;</li> -<li class="isub1">national, when supreme, <a href="#Page_34">34</a>;</li> -<li class="isub1">nature of national, <a href="#Page_38">38</a>;</li> -<li class="isub1">Marshall’s differentiation between State and federal, <a href="#Page_51">51</a>;</li> -<li class="isub1">of the U. S., distinct from the State, <a href="#Page_116">116</a>;</li> -<li class="isub1">what constitutes a lawful State, <a href="#Page_128">128</a>;</li> -<li class="isub1">principal of separation of powers of, <a href="#Page_135">135</a>, <a href="#Page_136">136</a>;</li> -<li class="isub1">of the U. S. power of, <a href="#Page_137">137</a>, <a href="#Page_138">138</a>;</li> -<li class="isub1">what is a republican form of? <a href="#Page_154">154</a>, <a href="#Page_155">155</a>, <a href="#Page_156">156</a></li> - -<li class="indx">Governor, power of extradition, <a href="#Page_151">151</a>, <a href="#Page_152">152</a>;</li> -<li class="isub1">issues writs of election, <a href="#Page_179">179</a></li> - -<li class="ifrst">H</li> - -<li class="indx">Habeas Corpus, <a href="#Page_21">21</a>, <a href="#Page_143">143</a></li> - -<li class="indx">Hamilton, on National and State systems, <a href="#Page_13">13</a>;</li> -<li class="isub1">as interpreter of the Constitution, <a href="#Page_28">28</a>;</li> -<li class="isub1">as to State and federal sovereignty <a href="#Page_35">35</a>, <a href="#Page_36">36</a>;</li> -<li class="isub1">on residuary sovereignty, <a href="#Page_177">177</a>;</li> -<li class="isub1">on the Constitution as a Bill of Rights, <a href="#Page_187">187</a></li> - -<li class="indx">Hayes, President, on power of the President, <a href="#Page_109">109</a>, <a href="#Page_110">110</a></li> - -<li class="indx">House of Representatives (U. S.) members, <a href="#Page_103">103</a>, <a href="#Page_172">172</a>, <a href="#Page_179">179</a>;</li> -<li class="isub1">election of, <a href="#Page_182">182</a>, <a href="#Page_216">216</a>.</li> -<li class="isub1">(<i>See also</i> <i><a href="#Congress">Congress</a></i>, <i><a href="#Powers">Powers</a></i>.)</li> - -<li class="ifrst">I</li> - -<li class="indx">Impeachment, <a href="#Page_107">107</a></li> - -<li class="indx">Imports, <a href="#Page_40">40</a></li> - -<li class="indx">Imposts, <a href="#Page_171">171</a></li> - -<li class="indx">Information, prosecution by, <a href="#Page_220">220</a></li> - -<li class="indx">Interstate commerce, testimony before, <a href="#Page_225">225</a>, <a href="#Page_226">226</a></li> - -<li class="ifrst">J</li> - -<li class="indx">Jefferson, on Louisiana purchase, <a href="#Page_13">13</a>;</li> -<li class="isub1">as interpreter of the Constitution, <a href="#Page_28">28</a></li> - -<li class="indx">Johnson, President, <a href="#Page_103">103</a></li> - -<li class="indx">Judges, bound by the Constitution, <a href="#Page_1">1</a></li> - -<li class="indx">Judiciary Act, <a href="#Page_141">141</a></li> - -<li class="indx">Judiciary, as agent, <a href="#Page_3">3</a>, <a href="#Page_4">4</a>;</li> -<li class="isub1">law of judicial power, the, <a href="#Page_113">113–145</a>;</li> -<li class="isub1">supremacy of, <a href="#Page_129">129–133</a></li> - -<li class="indx">Jurisdiction, of congress and legislatures, <a href="#Page_18">18–50</a>;</li> -<li class="isub1">principle of, <a href="#Page_38">38</a>;</li> -<li class="isub1">of the U. S., <a href="#Page_45">45</a>, <a href="#Page_58">58</a>, <a href="#Page_63">63</a>;</li> -<li class="isub1">of a State, <a href="#Page_48">48</a>;</li> -<li class="isub1">State and federal compared, <a href="#Page_51">51</a>, <a href="#Page_68">68</a>, <a href="#Page_72">72</a>, <a href="#Page_73">73</a>, <a href="#Page_78">78</a>, <a href="#Page_80">80</a>, <a href="#Page_81">81</a>, <a href="#Page_82">82</a>, <a href="#Page_86">86</a>, <a href="#Page_91">91</a>, <a href="#Page_92">92</a>, <a href="#Page_95">95</a>, <a href="#Page_97">97</a>;</li> -<li class="isub1">the test, <a href="#Page_53">53</a>;</li> -<li class="isub1">of the Executive, <a href="#Page_102">102–112</a>;</li> -<li class="isub1">of the Judiciary, <a href="#Page_113">113–145</a>;</li> -<li class="isub1">of Supreme and of inferior federal courts, <a href="#Page_118">118</a>, <a href="#Page_119">119</a>, <a href="#Page_120">120</a>, <a href="#Page_122">122</a>, <a href="#Page_123">123</a>;</li> -<li class="isub1">admiralty, <a href="#Page_121">121</a>;</li> -<li class="isub1">federal and State distinguished, <a href="#Page_124">124</a>, <a href="#Page_125">125</a>;</li> -<li class="isub1">as to political questions, <a href="#Page_126">126</a>, <a href="#Page_127">127</a>;</li> -<li class="isub1">original of Supreme Court, <a href="#Page_136">136</a>, <a href="#Page_137">137</a>;</li> -<li class="isub1">national commercial, <a href="#Page_137">137</a>;</li> -<li class="isub1">principal of State, <a href="#Page_146">146</a>, <a href="#Page_147">147</a>;</li> -<li class="isub1">no new conferred by the constitution, <a href="#Page_146">146</a>;</li> -<li class="isub1">determines citizenship, <a href="#Page_151">151</a></li> - -<li class="indx"><dfn>Jury</dfn>, as used in the Constitution, <a href="#Page_209">209</a>, <a href="#Page_210">210</a>;</li> -<li class="isub1">indictment of, <a href="#Page_220">220</a></li> - -<li class="indx">Justice, principles of natural, <a href="#Page_50">50</a></li> - -<li class="ifrst">K<span class="pagenum" id="Page_276">276</span></li> - -<li class="indx">Kansas, jurisdiction over Ft. Leavenworth Military Reservation, <a href="#Page_48">48</a></li> - -<li class="indx">Kentucky and Virginia Resolutions, <a href="#Page_17">17</a> (note)</li> - -<li class="ifrst">L</li> - -<li class="indx">Law, presumption of, <a href="#Page_31">31</a>;</li> -<li class="isub1">test of constitutionality, <a href="#Page_30">30</a>, <a href="#Page_31">31</a>;</li> -<li class="isub1">bankrupt, insolvent, <a href="#Page_37">37</a>, <a href="#Page_38">38</a>;</li> -<li class="isub1">postal, <a href="#Page_42">42</a>;</li> -<li class="isub1">patent, <a href="#Page_44">44</a>;</li> -<li class="isub1">common, <a href="#Page_45">45</a>;</li> -<li class="isub1">inspection, <a href="#Page_81">81</a>;</li> -<li class="isub1">due process of, <a href="#Page_95">95</a>;</li> -<li class="isub1">what is constitutional? <a href="#Page_132">132</a>, <a href="#Page_135">135</a>;</li> -<li class="isub1"><i xml:lang="la" lang="la">ex post facto</i>, <a href="#Page_22">22</a>, <a href="#Page_171">171</a>, <a href="#Page_224">224</a></li> - -<li class="indx">Legislatures, State, powers of, <a href="#Page_22">22</a>, <a href="#Page_35">35–37</a>, <a href="#Page_53">53</a>, <a href="#Page_90">90</a>;</li> -<li class="isub1">discretion of, <a href="#Page_54">54</a>, <a href="#Page_79">79</a>;</li> -<li class="isub1">appoints presidential electors, <a href="#Page_167">167</a>;</li> -<li class="isub1">office of, <a href="#Page_218">218</a></li> - -<li class="indx">Limitations, the law of, <a href="#Page_164">164–190</a></li> - -<li class="indx">Lincoln, Levi, on Louisiana purchase, <a href="#Page_14">14</a></li> - -<li class="indx">Lincoln, President, on law of limitations, <a href="#Page_166">166</a>;</li> -<li class="isub1">on tenure of Cabinet officers, <a href="#Page_105">105</a></li> - -<li class="indx">Liquors, <a href="#Page_97">97</a>, <a href="#Page_98">98</a></li> - -<li class="indx">Louisiana, power to purchase, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>, <a href="#Page_15">15</a></li> - -<li class="ifrst">M</li> - -<li class="indx">Madison, defines a republic, <a href="#Page_4">4</a>, <a href="#Page_5">5</a>;</li> -<li class="isub1">on power of national government, <a href="#Page_12">12</a>, <a href="#Page_13">13</a></li> - -<li class="indx">Mails, <a href="#Page_42">42</a>;</li> -<li class="isub1">and lottery tickets, <a href="#Page_43">43</a>, <a href="#Page_85">85</a>, <a href="#Page_86">86</a></li> - -<li class="indx">Mandamus, <a href="#Page_111">111</a></li> - -<li class="indx">Manufacture, distinguished from commerce, <a href="#Page_73">73</a>;</li> -<li class="isub1">right to, <a href="#Page_98">98</a></li> - -<li class="indx">Marque and reprisal, <a href="#Page_37">37</a></li> - -<li class="indx">Marshall, Chief Justice, defines U. S. government, <a href="#Page_6">6</a>, <a href="#Page_7">7</a>;</li> -<li class="isub1">on taxing power, <a href="#Page_9">9</a>, <a href="#Page_10">10</a>;</li> -<li class="isub1">on war and treaty-making powers, <a href="#Page_15">15</a>;</li> -<li class="isub1">enthrones Hamilton’s ideas, <a href="#Page_28">28</a>;</li> -<li class="isub1">on sovereignty, <a href="#Page_34">34</a>;</li> -<li class="isub1">distinction by, between State and federal, <a href="#Page_51">51</a>;</li> -<li class="isub1">on regulation of commerce, <a href="#Page_63">63</a>, <a href="#Page_119">119</a>;</li> -<li class="isub1">on international law, <a href="#Page_148">148</a>;</li> -<li class="isub1">lays down principle of constitutional interpretation, <a href="#Page_186">186</a>, <a href="#Page_187">187</a></li> - -<li class="indx">Massachusetts, constitution of 1780, <a href="#Page_5">5</a></li> - -<li class="indx">Measures, <a href="#Page_36">36</a>, <a href="#Page_37">37</a></li> - -<li class="indx">Ministers, public, <a href="#Page_119">119</a>, <a href="#Page_120">120</a>, <a href="#Page_137">137</a></li> - -<li class="indx">Monopolies, <a href="#Page_72">72</a>, <a href="#Page_83">83</a>, <a href="#Page_84">84</a></li> - -<li class="ifrst">N</li> - -<li class="indx">Naturalization, <a href="#Page_221">221</a></li> - -<li class="indx">Nobility, title of, <a href="#Page_172">172</a></li> - -<li class="indx">Nuisance, <a href="#Page_97">97</a></li> - -<li class="indx">Nullification, <a href="#Page_17">17</a></li> - -<li class="ifrst">O</li> - -<li class="indx">Oath, <a href="#Page_2">2</a></li> - -<li class="indx">Office, legal right to, <a href="#Page_91">91</a>;</li> -<li class="isub1">constitutional meaning of, <a href="#Page_103">103</a></li> - -<li class="ifrst">P</li> - -<li class="indx">Package, original, <a href="#Page_75">75</a></li> - -<li class="indx">Parliament, <a href="#Page_21">21</a></li> - -<li class="indx">Parties, political, interpret the Constitution, <a href="#Page_27">27</a>, <a href="#Page_28">28</a></li> - -<li class="indx">Patent rights, <a href="#Page_36">36</a>, <a href="#Page_43">43</a></li> - -<li class="indx">People, The, sovereign, <a href="#Page_2">2</a>;</li> -<li class="isub1">author of supreme law, <a href="#Page_5">5</a>, <a href="#Page_6">6</a>;</li> -<li class="isub1">power to amend constitution, <a href="#Page_7">7</a>;</li> -<li class="isub1">sovereignty of, <a href="#Page_12">12</a>, <a href="#Page_13">13</a></li> - -<li class="indx">Piracies, <a href="#Page_44">44</a>, <a href="#Page_45">45</a></li> - -<li class="indx">Polygamy, <a href="#Page_203">203</a></li> - -<li class="indx">Possessions, outlying, power of Congress over, <a href="#Page_161">161</a>, <a href="#Page_162">162</a>, <a href="#Page_163">163</a></li> - -<li class="indx">Post offices, <a href="#Page_42">42</a></li> - -<li class="indx">Post roads, <a href="#Page_42">42</a></li> - -<li class="indx"><a id="Powers"></a>Powers, derivative <a href="#Page_2">2</a>;</li> -<li class="isub1">original and derivative distinguished, <a href="#Page_5">5</a>;</li> -<li class="isub1">taxing, <a href="#Page_9">9</a>;</li> -<li class="isub1">legislative, <a href="#Page_18">18–50</a>;</li> -<li class="isub1">defined, <a href="#Page_18">18</a>;</li> -<li class="isub1">character of, <a href="#Page_18">18–50</a>;</li> -<li class="isub1">separation of, <a href="#Page_19">19</a>, <a href="#Page_20">20</a>;</li> -<li class="isub1">of respective Houses, <a href="#Page_20">20</a>, <a href="#Page_21">21</a>, <a href="#Page_22">22</a>;</li> -<li class="isub1">limitations of, <a href="#Page_18">18</a>, <a href="#Page_22">22</a>, <a href="#Page_23">23</a>, <a href="#Page_24">24</a>;</li> -<li class="isub1">American doctrine of, <a href="#Page_19">19</a>;</li> -<li class="isub1">parliamentary, <a href="#Page_20">20</a>, <a href="#Page_21">21</a>;</li> -<li class="isub1">nature and extent of Constitutional, <a href="#Page_21">21</a>;</li> -<li class="isub1">of Congress reflect eighteenth century ideas, <a href="#Page_25">25</a>, <a href="#Page_26">26</a>;</li> -<li class="isub1">of Congress derivative, <a href="#Page_34">34</a>, <a href="#Page_35">35</a>;</li> -<li class="isub1">implied, <a href="#Page_36">36</a>;<span class="pagenum" id="Page_277">277</span></li> -<li class="isub1">conflict between State and federal, <a href="#Page_36">36–39</a>;</li> -<li class="isub1">implied or expressed, <a href="#Page_38">38</a>, <a href="#Page_39">39</a>, <a href="#Page_55">55</a>;</li> -<li class="isub1">police, <a href="#Page_42">42–45</a>, <a href="#Page_73">73</a>, <a href="#Page_74">74</a>, <a href="#Page_79">79</a>, <a href="#Page_81">81</a>, <a href="#Page_91">91</a>, <a href="#Page_92">92</a>, <a href="#Page_98">98</a>, <a href="#Page_121">121</a>, <a href="#Page_205">205–208</a>;</li> -<li class="isub1">of Congress as to crime or immorality, <a href="#Page_42">42</a>;</li> -<li class="isub1">taxing, <a href="#Page_52">52</a>, <abbr xml:lang="la" lang="la">et seq.</abbr>;</li> -<li class="isub1">of State governments, <a href="#Page_55">55</a>, <a href="#Page_56">56</a>;</li> -<li class="isub1">judicial review of taxing, <a href="#Page_57">57</a>, <a href="#Page_58">58</a>;</li> -<li class="isub1">police powers of U. S. and States distinguished, <a href="#Page_68">68</a>;</li> -<li class="isub1">residuary of States, <a href="#Page_73">73</a>;</li> -<li class="isub1">taxing by State and U. S. defined, <a href="#Page_76">76</a>;</li> -<li class="isub1">law of executive, <a href="#Page_102">102–112</a>;</li> -<li class="isub1">law of judicial, <a href="#Page_113">113–145</a>;</li> -<li class="isub1">the U. S. Government, <a href="#Page_137">137–139</a>;</li> -<li class="isub1">exact division between State and federal unknown, <a href="#Page_183">183</a>;</li> -<li class="isub1">delegated, <a href="#Page_191">191</a></li> - -<li class="indx">Preamble, <a href="#Page_26">26</a>, <a href="#Page_76">76</a></li> - -<li class="indx">President, veto of, <a href="#Page_2">2</a>;</li> -<li class="isub1">military and naval power, <a href="#Page_46">46</a>;</li> -<li class="isub1">executes U. S. laws, <a href="#Page_46">46</a>;</li> -<li class="isub1">character of his decisions, <a href="#Page_46">46</a>, <a href="#Page_47">47</a>;</li> -<li class="isub1">nature of powers of, <a href="#Page_102">102–112</a>;</li> -<li class="isub1">oath of, <a href="#Page_102">102</a>;</li> -<li class="isub1">trial of, <a href="#Page_103">103</a>;</li> -<li class="isub1">test of execution of office of, <a href="#Page_103">103</a>;</li> -<li class="isub1">Johnson, <a href="#Page_103">103</a>;</li> -<li class="isub1">impeachment of, <a href="#Page_102">102</a>, <a href="#Page_103">103</a>, <a href="#Page_107">107</a>, <a href="#Page_108">108</a></li> - -<li class="indx">Principles of Constitutional law, as to sovereignty, <a href="#Page_9">9</a>, <a href="#Page_39">39</a>, <a href="#Page_217">217</a>;</li> -<li class="isub1">separation of powers, <a href="#Page_19">19</a>;</li> -<li class="isub1">limitations, <a href="#Page_22">22</a>, <a href="#Page_27">27</a>;</li> -<li class="isub1">learned from judicial decisions, <a href="#Page_30">30</a>;</li> -<li class="isub1">as to adequate federal powers, <a href="#Page_33">33</a>, <a href="#Page_34">34</a>, <a href="#Page_54">54</a>;</li> -<li class="isub1">of natural justice, <a href="#Page_50">50</a>;</li> -<li class="isub1">as to commerce, <a href="#Page_70">70</a>;</li> -<li class="isub1">as to the police power, <a href="#Page_92">92</a>;</li> -<li class="isub1">as to obligation of contracts, <a href="#Page_93">93</a>;</li> -<li class="isub1">consequentive damages, <a href="#Page_99">99</a>;</li> -<li class="isub1">of judicial power, <a href="#Page_130">130</a>; <a href="#Page_136">136</a>;</li> -<li class="isub1">of federal judicial jurisdiction, <a href="#Page_142">142</a>, <a href="#Page_143">143</a>;</li> -<li class="isub1">of State comity, <a href="#Page_147">147</a>, <a href="#Page_150">150</a>;</li> -<li class="isub1">as to powers of Congress, <a href="#Page_183">183</a>;</li> -<li class="isub1">constitutional interpretation, <a href="#Page_186">186</a>, <a href="#Page_187">187</a>;</li> -<li class="isub1">fundamental rights, <a href="#Page_191">191–211</a>;</li> -<li class="isub1">equality of citizens, <a href="#Page_217">217</a>;</li> -<li class="isub1">due process of law, <a href="#Page_219">219</a>, <a href="#Page_220">220</a>;</li> -<li class="isub1">of citizenship, <a href="#Page_221">221</a></li> - -<li class="indx">Prohibition, <a href="#Page_97">97</a>, <a href="#Page_98">98</a></li> - -<li class="ifrst">R</li> - -<li class="indx">Receipts, publication of, <a href="#Page_22">22</a></li> - -<li class="indx">Residuary sovereignty, <a href="#Page_12">12</a></li> - -<li class="indx">Revenue, bills of, <a href="#Page_172">172</a></li> - -<li class="indx">Rights, the law of fundamental, <a href="#Page_190">190–211</a>;</li> -<li class="isub1">religious liberty, <a href="#Page_191">191</a>, <a href="#Page_195">195</a>;</li> -<li class="isub1">freedom of speech, of the press, <a href="#Page_196">196</a>, <a href="#Page_197">197</a>;</li> -<li class="isub1">right of petition, <a href="#Page_197">197</a>;</li> -<li class="isub1">exemption from searches and seizures, <a href="#Page_197">197</a>, <a href="#Page_198">198</a>, <a href="#Page_225">225</a>;</li> -<li class="isub1">life, liberty, property, <a href="#Page_199">199</a>;</li> -<li class="isub1">realized through the Judiciary, <a href="#Page_201">201</a>;</li> -<li class="isub1">relation to Constitutional limitations, <a href="#Page_202">202</a>;</li> -<li class="isub1">trial by jury, <a href="#Page_209">209</a>, <a href="#Page_210">210</a>;</li> -<li class="isub1">bills of, <a href="#Page_210">210</a>, <a href="#Page_211">211</a></li> - -<li class="ifrst">S</li> - -<li class="indx">Senate (U. S.) members, <a href="#Page_103">103</a>, <a href="#Page_172">172</a>, <a href="#Page_179">179</a>;</li> -<li class="isub1">treaties, <a href="#Page_104">104</a>;</li> -<li class="isub1">as Court of Impeachment, <a href="#Page_108">108</a>;</li> -<li class="isub1">represents the States, <a href="#Page_180">180</a>;</li> -<li class="isub1">election of, <a href="#Page_216">216</a>.</li> -<li class="isub1">(<i>See also</i> <i><a href="#Congress">Congress</a></i>, <i><a href="#Powers">Powers</a></i>.)</li> - -<li class="indx">Services, Constitutional meaning of, <a href="#Page_103">103</a></li> - -<li class="indx">Sovereignty, agent of, <a href="#Page_2">2</a>, <a href="#Page_3">3</a>, <a href="#Page_4">4</a>, <a href="#Page_5">5</a>, <a href="#Page_6">6</a>, <a href="#Page_8">8</a>, <a href="#Page_9">9</a>, <a href="#Page_10">10</a>, <a href="#Page_11">11</a>, <a href="#Page_12">12</a>;</li> -<li class="isub1">delegated to Congress, <a href="#Page_19">19</a>, <a href="#Page_20">20</a>;</li> -<li class="isub1">of the people, <a href="#Page_34">34</a>;</li> -<li class="isub1">Hamilton on State and federal, <a href="#Page_35">35</a>, <a href="#Page_36">36</a>;</li> -<li class="isub1">national, <a href="#Page_38">38</a>, <a href="#Page_39">39</a>, <a href="#Page_41">41</a>, <a href="#Page_100">100</a>;</li> -<li class="isub1">possessed by U. S. and by States, <a href="#Page_47">47</a>;</li> -<li class="isub1">State distinguished from federal, <a href="#Page_51">51</a>;</li> -<li class="isub1">as to commerce, <a href="#Page_63">63</a>;</li> -<li class="isub1">of Congress over outlying possessions, <a href="#Page_161">161–163</a></li> - -<li class="indx">State (in the Union), quasi-sovereign, <a href="#Page_2">2</a>;</li> -<li class="isub1">Legislature, <a href="#Page_2">2</a>;</li> -<li class="isub1">sovereignty of, <a href="#Page_6">6–9</a>, <a href="#Page_55">55</a>, <a href="#Page_100">100</a>;</li> -<li class="isub1">supremacy of, <a href="#Page_34">34</a>;</li> -<li class="isub1">powers of Legislatures derivative, <a href="#Page_35">35</a>, <a href="#Page_36">36</a></li> - -<li class="indx">State, powers of legislature extinguished by Congress, <a href="#Page_36">36</a>;</li> -<li class="isub1">implied powers of, <a href="#Page_36">36</a>;</li> -<li class="isub1">power to punish counterfeiting, <a href="#Page_41">41</a>, <a href="#Page_42">42</a>;</li> -<li class="isub1">police power of, <a href="#Page_43">43</a>, <a href="#Page_44">44</a>, <a href="#Page_45">45</a>, <a href="#Page_79">79</a>, <a href="#Page_81">81</a>, <a href="#Page_91">91</a>, <a href="#Page_92">92</a>, <a href="#Page_98">98</a>, <a href="#Page_121">121</a>, <a href="#Page_205">205</a>, <a href="#Page_206">206</a>, <a href="#Page_207">207</a>, <a href="#Page_208">208</a>;</li> -<li class="isub1">meaning of “State” in the Constitution, <a href="#Page_47">47</a>, <a href="#Page_48">48</a>, <a href="#Page_141">141</a>;</li> -<li class="isub1">and U. S. possess sovereignty, <a href="#Page_47">47</a>;<span class="pagenum" id="Page_278">278</span></li> -<li class="isub1">subdivisions of, <a href="#Page_48">48</a>;</li> -<li class="isub1">system of State government distinguished from federal, <a href="#Page_51">51</a>;</li> -<li class="isub1">power of, over commerce, <a href="#Page_64">64</a>, <a href="#Page_67">67</a>;</li> -<li class="isub1">limitation of jurisdiction of, <a href="#Page_82">82</a>;</li> -<li class="isub1">may be petitioned, not suable, <a href="#Page_114">114</a>, <a href="#Page_115">115</a>;</li> -<li class="isub1">what constitutes a republican form of, <a href="#Page_128">128</a>;</li> -<li class="isub1">suability, <a href="#Page_140">140</a>;</li> -<li class="isub1">the word “States” in the Constitution, <a href="#Page_141">141</a>;</li> -<li class="isub1">jurisdiction of, determined, <a href="#Page_147">147</a>;</li> -<li class="isub1">principle of relation of State to State, <a href="#Page_147">147</a>, <a href="#Page_148">148</a>;</li> -<li class="isub1">law of in federal courts, <a href="#Page_148">148</a>;</li> -<li class="isub1">the States mutually foreign to one another, <a href="#Page_148">148</a>;</li> -<li class="isub1">rights of citizens of, <a href="#Page_149">149</a>;</li> -<li class="isub1">admission of a, <a href="#Page_156">156</a>, <a href="#Page_157">157</a>;</li> -<li class="isub1">the States indestructible, <a href="#Page_158">158</a>;</li> -<li class="isub1">new States, <a href="#Page_173">173</a>;</li> -<li class="isub1">limitation of power of, <a href="#Page_176">176–181</a>;</li> -<li class="isub1">the States as limitations on the U. S., <a href="#Page_179">179</a>, <a href="#Page_180">180</a>;</li> -<li class="isub1">appoints presidential electors, <a href="#Page_179">179</a>;</li> -<li class="isub1">subdivision of, <a href="#Page_180">180</a>;</li> -<li class="isub1">guaranteed a republican form of government, <a href="#Page_180">180</a>;</li> -<li class="isub1">States and amendment of the Constitution, <a href="#Page_180">180</a>, <a href="#Page_181">181</a>;</li> -<li class="isub1">citizenship, <a href="#Page_213">213</a></li> - -<li class="indx">Suffrage, <a href="#Page_223">223</a></li> - -<li class="indx">Supreme Court of the U. S., Marshall’s decisions, <a href="#Page_28">28</a>;</li> -<li class="isub1">principle of interpretation, <a href="#Page_31">31</a>, <a href="#Page_34">34</a>, <a href="#Page_39">39</a>, <a href="#Page_186">186</a>;</li> -<li class="isub1">on boundary between the federal and State systems, <a href="#Page_51">51</a>;</li> -<li class="isub1">part of the judicial department, <a href="#Page_56">56</a>;</li> -<li class="isub1">powers not delegated, <a href="#Page_59">59</a>;</li> -<li class="isub1">has not defined power over commerce, <a href="#Page_63">63</a>;</li> -<li class="isub1">nature of power of U. S. over commerce, <a href="#Page_65">65</a>, <a href="#Page_76">76</a>, <a href="#Page_77">77</a>;</li> -<li class="isub1">decisions on Anti-Trust Act, <a href="#Page_83">83</a>, <a href="#Page_84">84</a>;</li> -<li class="isub1">on obligation of contracts, <a href="#Page_93">93</a>;</li> -<li class="isub1">adequacy of its authority, <a href="#Page_106">106</a>;</li> -<li class="isub1">on executive and ministerial powers, <a href="#Page_112">112</a>;</li> -<li class="isub1">judicial power of, <a href="#Page_113">113</a>, <a href="#Page_114">114</a> <abbr xml:lang="la" lang="la">et seq.</abbr>;</li> -<li class="isub1">jurisdiction, original and appellate, <a href="#Page_119">119–136</a>;</li> -<li class="isub1">on the war power, <a href="#Page_127">127</a>;</li> -<li class="isub1">nature of jurisdiction, <a href="#Page_129">129–142</a>;</li> -<li class="isub1">determines constitutional law, <a href="#Page_133">133–135</a>;</li> -<li class="isub1">jurisdiction under the Judiciary Act, <a href="#Page_141">141</a>;</li> -<li class="isub1">relation to State tribunals, <a href="#Page_144">144</a>, <a href="#Page_145">145</a>;</li> -<li class="isub1">as to republican form of government, <a href="#Page_155">155</a>, <a href="#Page_156">156</a>;</li> -<li class="isub1">decision of as to power of Congress over Territories and possessions, <a href="#Page_160">160–163</a>, <a href="#Page_183">183</a>, <a href="#Page_184">184</a>, <a href="#Page_201">201</a>;</li> -<li class="isub1">on delegated powers, <a href="#Page_175">175</a>;</li> -<li class="isub1">jurisdiction when a State is a party, <a href="#Page_178">178</a>;</li> -<li class="isub1">function of the Judiciary, <a href="#Page_185">185</a>;</li> -<li class="isub1">power of U. S. to acquire territory, <a href="#Page_193">193</a>;</li> -<li class="isub1">power vested in, <a href="#Page_194">194</a>;</li> -<li class="isub1">on the nature of American institutions, <a href="#Page_210">210</a>, <a href="#Page_211">211</a>;</li> -<li class="isub1">on citizens’ rights, <a href="#Page_214">214</a>;</li> -<li class="isub1">on “due process of law,” <a href="#Page_220">220</a>;</li> -<li class="isub1">on the Fifteenth Amendment, <a href="#Page_222">222</a>, <a href="#Page_223">223</a></li> - -<li class="indx">“Sweeping Clause,” <a href="#Page_26">26</a></li> - -<li class="ifrst">T</li> - -<li class="indx">Tax, export, <a href="#Page_22">22</a>, <a href="#Page_52">52</a>;</li> -<li class="isub1">essentials of a good, <a href="#Page_52">52</a>, <a href="#Page_60">60</a>, <a href="#Page_61">61</a>;</li> -<li class="isub1">income, <a href="#Page_58">58</a> (<i>and see under</i> <a href="#Amendments">Amendment</a>);</li> -<li class="isub1">exemptions, <a href="#Page_60">60</a>;</li> -<li class="isub1">direct, indirect, <a href="#Page_61">61</a></li> - -<li class="indx">Taxation, law of, <a href="#Page_51">51–62</a>;</li> -<li class="isub1">by a State, <a href="#Page_52">52–56</a>;</li> -<li class="isub1">national, <a href="#Page_54">54</a>;</li> -<li class="isub1">power of U. S. over, <a href="#Page_65">65</a>, <a href="#Page_66">66</a></li> - -<li class="indx">Tender, legal, <a href="#Page_38">38</a>, <a href="#Page_39">39</a></li> - -<li class="indx">Territory, when sovereign, <a href="#Page_47">47</a>;</li> -<li class="isub1">power of Congress over, <a href="#Page_48">48</a>, <a href="#Page_141">141</a>, <a href="#Page_183">183</a>;</li> -<li class="isub1">the law of, and of territories, <a href="#Page_146">146–163</a>;</li> -<li class="isub1">becoming a State, <a href="#Page_157">157</a>, <a href="#Page_158">158</a>;</li> -<li class="isub1">governed by Congress, <a href="#Page_159">159</a>, <a href="#Page_160">160</a>, <a href="#Page_162">162</a>, <a href="#Page_163">163</a></li> - -<li class="indx">Texas, law of, regulating commerce, <a href="#Page_80">80</a></li> - -<li class="indx">Tickets, lottery, <a href="#Page_43">43</a>, <a href="#Page_83">83</a>, <a href="#Page_85">85</a></li> - -<li class="indx">Treason, <a href="#Page_172">172</a></li> - -<li class="indx">Treaties, <a href="#Page_104">104</a>;</li> -<li class="isub1">in the Senate, <a href="#Page_180">180</a></li> - -<li class="ifrst">U</li> - -<li class="indx">United States, supreme law of, <a href="#Page_2">2</a> <abbr xml:lang="la" lang="la">et seq.</abbr>;</li> -<li class="isub1">laws of, by whom made, <a href="#Page_2">2</a>;</li> -<li class="isub1">guarantees republican form of government, <a href="#Page_6">6</a>;</li> -<li class="isub1">sovereignty of, <a href="#Page_8">8–13</a>;<span class="pagenum" id="Page_279">279</span></li> -<li class="isub1">organization of, reflects popular will, <a href="#Page_18">18</a>;</li> -<li class="isub1">governmental functions of, <a href="#Page_19">19</a>, <a href="#Page_20">20</a>;</li> -<li class="isub1">powers of, <a href="#Page_20">20</a> <abbr xml:lang="la" lang="la">et seq.</abbr>;</li> -<li class="isub1">admiralty, jurisdiction of, <a href="#Page_45">45</a>, <a href="#Page_46">46</a>;</li> -<li class="isub1">war power of, <a href="#Page_46">46</a>;</li> -<li class="isub1">and States possess sovereignty, <a href="#Page_47">47</a>;</li> -<li class="isub1">civil system of, distinguished from State, <a href="#Page_51">51</a>;</li> -<li class="isub1">powers of, as to States, <a href="#Page_54">54–57</a>;</li> -<li class="isub1">power over commerce, <a href="#Page_63">63–88</a>;</li> -<li class="isub1">the peace of, <a href="#Page_85">85</a>;</li> -<li class="isub1">police power of, <a href="#Page_95">95</a>;</li> -<li class="isub1">citizenship, <a href="#Page_214">214</a>, <a href="#Page_216">216</a>, <a href="#Page_217">217</a></li> - -<li class="ifrst">V</li> - -<li class="indx">Veto, <a href="#Page_2">2</a></li> - -<li class="indx">Vice-President, <a href="#Page_108">108</a></li> - -<li class="ifrst">W</li> - -<li class="indx">Waite, Chief Justice, quoted, <a href="#Page_92">92</a></li> - -<li class="indx">Waters, navigable, <a href="#Page_46">46</a></li> - -<li class="indx">Webster, Daniel, his definition of law, <a href="#Page_205">205</a></li> - -<li class="indx">Weights, <a href="#Page_36">36</a>, <a href="#Page_37">37</a></li> - -<li class="indx">Wilson, James, on the Constitution a Bill of Rights, <a href="#Page_187">187</a>, <a href="#Page_188">188</a></li> -</ul> -</div></div> - -<div class="chapter"><div class="footnotes"> -<h2 id="FOOTNOTES" class="nobreak p1">FOOTNOTES</h2> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_1" href="#FNanchor_1" class="fnanchor">1</a> Art. vi., 2, 3, and Preamble.</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_2" href="#FNanchor_2" class="fnanchor">2</a> Art. i., 7: 2.</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_3" href="#FNanchor_3" class="fnanchor">3</a> The Supreme Court of Mississippi in Sproule <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> 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 -<abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> Hunter’s Lessee, 1 -Wheaton, 304 (1816). Decision by Story, J.</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_4" href="#FNanchor_4" class="fnanchor">4</a> No. xxxix.</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_5" href="#FNanchor_5" class="fnanchor">5</a> Art. v.</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_6" href="#FNanchor_6" class="fnanchor">6</a> Constitution (1780 to date) Pt. I. Art. iv. The words “substitutes -and agents” may be considered equivalent to the modern words -“administrative officers.”</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_7" href="#FNanchor_7" class="fnanchor">7</a> Art. iv., 4.</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_8" href="#FNanchor_8" class="fnanchor">8</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, note, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn1"><a id="Footnote_9" href="#FNanchor_9" class="fnanchor">9</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, note, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_10" href="#FNanchor_10" class="fnanchor">10</a> <abbr xml:lang="la" lang="la">Idem.</abbr> (The language of the Court slightly paraphrased.)</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_11" href="#FNanchor_11" class="fnanchor">11</a> Art. v.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_12" href="#FNanchor_12" class="fnanchor">12</a> <cite>The Federalist</cite>, No. lxii.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_13" href="#FNanchor_13" class="fnanchor">13</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_14" href="#FNanchor_14" class="fnanchor">14</a> Art. i., 8: 1; but see <a href="#ARTICLE_XVI">Amendment XVI</a>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_15" href="#FNanchor_15" class="fnanchor">15</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_16" href="#FNanchor_16" class="fnanchor">16</a> Articles i., 8: 5; ii., 2: 2; i., 10: 3; i., 8: 2.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_17" href="#FNanchor_17" class="fnanchor">17</a> The License Cases, 5 Howard, 504 (1846); Kimmish <abbr xml:lang="la" lang="la">v.</abbr> Ball, 129 -U. S., 217 (1889); Cook <abbr xml:lang="la" lang="la">v.</abbr> Marshall Company, 196 U. S., 261.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_18" href="#FNanchor_18" class="fnanchor">18</a> Discussed at length in the chapters on State Comity, and Commerce.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_19" href="#FNanchor_19" class="fnanchor">19</a> Art. iv. (and preceding note).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_20" href="#FNanchor_20" class="fnanchor">20</a> See also Chapters XII and XIII.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_21" href="#FNanchor_21" class="fnanchor">21</a> Barron <abbr xml:lang="la" lang="la">v.</abbr> Baltimore, 7 Peters, 243 (1833).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_22" href="#FNanchor_22" class="fnanchor">22</a> No. xxxix.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_23" href="#FNanchor_23" class="fnanchor">23</a> Cohens <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 6 Wheaton, 382 (1821). Madison’s thought -is incorporated into Weston <abbr xml:lang="la" lang="la">et al.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> the City of Charleston, 2 Peters, -466 (1829.)</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_24" href="#FNanchor_24" class="fnanchor">24</a> <cite>The Federalist</cite>, No. lxxxii.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_25" href="#FNanchor_25" class="fnanchor">25</a> Gallatin’s <cite>Writings</cite>, i., 11.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_26" href="#FNanchor_26" class="fnanchor">26</a> Sustained by Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, 182 U. S., 244 (1901).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_27" href="#FNanchor_27" class="fnanchor">27</a> The American Insurance Company <abbr xml:lang="la" lang="la">v.</abbr> Canter, 1 Peters, 511 (1828).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_28" href="#FNanchor_28" class="fnanchor">28</a> Compare the Preamble. The entire discussion in <cite>The Federalist</cite> -is of the conformity of the Constitution to a republican government -and of the necessity of governmental powers adequate to governmental -purposes.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_29" href="#FNanchor_29" class="fnanchor">29</a> Art. x.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_30" href="#FNanchor_30" class="fnanchor">30</a> Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 176 (1803).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_31" href="#FNanchor_31" class="fnanchor">31</a> 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. -<cite>The Federalist</cite> remains the classic contemporaneous interpretation -of the Constitution. -</p> -<p> -The issue involved is, fundamentally, one of <em>functions</em>, and is -viewed at different times with different understandings. As a practical -question, it is one of <em>jurisdiction</em> as legally understood, but as a -question of <em>service</em> 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: -<i xml:lang="la" lang="la">Ex parte</i> Siebold, 100 U. S., 371 (1879); The Civil Rights Cases, 109 -U. S., 3 (1883); Rogers <abbr xml:lang="la" lang="la">v.</abbr> Alabama, 192 U. S., 226 (1904).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_32" href="#FNanchor_32" class="fnanchor">32</a> Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 177.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_33" href="#FNanchor_33" class="fnanchor">33</a> Art. i., 1.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_34" href="#FNanchor_34" class="fnanchor">34</a> Art. vi., 2.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_35" href="#FNanchor_35" class="fnanchor">35</a> A typical formulation in Massachusetts, (1780) Pt. I., xxx. -Discussed in Taylor <abbr xml:lang="la" lang="la">v.</abbr> Place, 4 R. I., 324 (1856.)</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_36" href="#FNanchor_36" class="fnanchor">36</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 316.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_37" href="#FNanchor_37" class="fnanchor">37</a> Art. i., v.; Amendment XII.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_38" href="#FNanchor_38" class="fnanchor">38</a> “The Sources and Authorship of the Constitution,” in the -author’s <cite>Constitutional History of the United States</cite>, iii., 464–515.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_39" href="#FNanchor_39" class="fnanchor">39</a> Art. i., 8: 1.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_40" href="#FNanchor_40" class="fnanchor">40</a> Art. i., 9: 2.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_41" href="#FNanchor_41" class="fnanchor">41</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 3.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_42" href="#FNanchor_42" class="fnanchor">42</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 5.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_43" href="#FNanchor_43" class="fnanchor">43</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 6.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_44" href="#FNanchor_44" class="fnanchor">44</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 7.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_45" href="#FNanchor_45" class="fnanchor">45</a> See the Chapters on <i><a href="#CHAPTER_X">The Law of Limitations</a></i>, and <i><a href="#CHAPTER_XI">The Law of -Fundamental Rights</a></i>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_46" href="#FNanchor_46" class="fnanchor">46</a> <i>Pennsylvania</i>, 1873, Art. i., 26.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_47" href="#FNanchor_47" class="fnanchor">47</a> Thus annulling Art. i., 2: 3.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_48" href="#FNanchor_48" class="fnanchor">48</a> It will be profitable to compare this amendment with the doctrine -laid down in Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 137. See also -<cite>The Reconciliation of Government and Liberty</cite>, J. W. Burgess (1915).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_49" href="#FNanchor_49" class="fnanchor">49</a> The fundamental principle of judicial interpretation is laid down -in Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison; the principle is examined in the Chapter on -<i><a href="#CHAPTER_VIII">The Law of Judicial Power</a></i>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_50" href="#FNanchor_50" class="fnanchor">50</a> Art. iii.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_51" href="#FNanchor_51" class="fnanchor">51</a> 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 <em>generally</em> -upon subjects, power over which is reserved to the States by the -Tenth Amendment.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_52" href="#FNanchor_52" class="fnanchor">52</a> See authorities at close of preceding Chapter; also Chapter XI.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_53" href="#FNanchor_53" class="fnanchor">53</a> In this connection as to the President see Field <abbr xml:lang="la" lang="la">v.</abbr> Clark, 143 -U. S., 649 (1892).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_54" href="#FNanchor_54" class="fnanchor">54</a> Art. i., 8: 18.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_55" href="#FNanchor_55" class="fnanchor">55</a> Preamble. As to “necessary and proper,” see United States <abbr xml:lang="la" lang="la">v.</abbr> -Fisher, 2 Cranch, 396; McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 421.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_56" href="#FNanchor_56" class="fnanchor">56</a> U. S. <abbr xml:lang="la" lang="la">v.</abbr> Fisher, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_57" href="#FNanchor_57" class="fnanchor">57</a> 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, <abbr xml:lang="la" lang="la">e. g.</abbr>, J. P. Cotton’s edition, 2 vols. -1905.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_58" href="#FNanchor_58" class="fnanchor">58</a> For a detailed history of the first fifteen amendments see the -author’s <cite>Constitutional History of the United States</cite>; the social and -political history from 1789 to 1870 are related, respectively, by -John Bach McMaster in his <cite>History of the People of the United -States</cite>, and by James Schouler in his <cite>History of the United States</cite>. -J. F. Rhodes in his <cite>History of the United States from the Compromise -of 1850</cite>, 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.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_59" href="#FNanchor_59" class="fnanchor">59</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 316 (1819). Many later -decisions apply this principle. -</p> -<p> -For an examination of the character and scope of the Legislative -Department, see -</p> -<p> -Taylor <abbr xml:lang="la" lang="la">v.</abbr> Place, 4 R. I., 324 (1856); Dalby <abbr xml:lang="la" lang="la">v.</abbr> Wolf, 14 Iowa, 228 -(1862); Stone <abbr xml:lang="la" lang="la">v.</abbr> City of Charleston, 114 Mass., 214 (1873); Barrno -<abbr xml:lang="la" lang="la">v.</abbr> Baltimore, 7 Peters, 243 (1833); Calder <abbr xml:lang="la" lang="la">v.</abbr> Bull, 3 Dallas, 386 (1798). -</p> -<p> -The powers of Congress over taxation, commerce, the currency, -war, territories, outlying possessions, etc., are particularly examined -under appropriate headings in later chapters. -</p> -<p> -In addition to cases cited in the present Chapter, and to the above, -and relating to the powers of Congress, see Gibbons <abbr xml:lang="la" lang="la">v.</abbr> Ogden, 9 -Wheaton, 1 (1824); The Mayor, etc., of the City of New York <abbr xml:lang="la" lang="la">v.</abbr> -Miln, 11 Peters, 102 (1837); The License Cases, 5 Howard, 504 -(1847); Sinnot <abbr xml:lang="la" lang="la">v.</abbr> Davenport, 22 Howard, 227 (1859); Gilman <abbr xml:lang="la" lang="la">v.</abbr> -Philadelphia, 3 Wallace, 713 (1865); Henderson <abbr xml:lang="la" lang="la">et al.</abbr> Mayor of the -City of New York, <abbr xml:lang="la" lang="la">et al.</abbr> Commissioners of Immigration <abbr xml:lang="la" lang="la">v.</abbr> North -German Lloyd, 92 U. S., 259 (1875); Hull <abbr xml:lang="la" lang="la">v.</abbr> De Cuir, 95 U. S., 485 -(1877); Pensacola Telegraph Co. <abbr xml:lang="la" lang="la">v.</abbr> Western Union Telegraph Co., -96 U. S., 1 (1877); County of Mobile <abbr xml:lang="la" lang="la">v.</abbr> Kimball, 102 U. S., 691 (1880); -Williamette Iron Bridge Co. <abbr xml:lang="la" lang="la">v.</abbr> Hatch, 125 U. S., 1 (1888). -</p> -<p> -The best brief treatise on the legislative in America is <cite>American -Legislatures and Legislative Methods</cite>, by Paul S. Reinsch, 1907; -the most exhaustive and authoritative treatise is <cite>Constitutional -Limitations</cite>, by Thomas M. Cooley. The general powers of Congress -are discussed by Justice Story in his <cite>Commentaries on the Constitution</cite>, -and by Chancellor Kent in his <cite>Commentaries on American Law</cite>. -</p> -<p> -See also the authorities cited in the present work on <cite>The Law of the -Judicial Power</cite>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_60" href="#FNanchor_60" class="fnanchor">60</a> No. xvi.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_61" href="#FNanchor_61" class="fnanchor">61</a> No. xxxi.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_62" href="#FNanchor_62" class="fnanchor">62</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 316 (1819).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_63" href="#FNanchor_63" class="fnanchor">63</a> <cite>The Federalist</cite>, xxxii.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_64" href="#FNanchor_64" class="fnanchor">64</a> <abbr xml:lang="la" lang="la">Idem.</abbr> and Weaver <abbr xml:lang="la" lang="la">v.</abbr> Fegely, 29 Pennsylvania State, 27 (1857).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_65" href="#FNanchor_65" class="fnanchor">65</a> Moore <abbr xml:lang="la" lang="la">v.</abbr> Houston, 3 S. and R. (Pa.), 179, and the cases cited in -Weaver <abbr xml:lang="la" lang="la">v.</abbr> Fegely.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_66" href="#FNanchor_66" class="fnanchor">66</a> See cases as under preceding note.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_67" href="#FNanchor_67" class="fnanchor">67</a> Baldwin <abbr xml:lang="la" lang="la">v.</abbr> Hale, 1 Wallace, 223 (1863).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_68" href="#FNanchor_68" class="fnanchor">68</a> Baldwin <abbr xml:lang="la" lang="la">v.</abbr> Hale, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_69" href="#FNanchor_69" class="fnanchor">69</a> Juilliard <abbr xml:lang="la" lang="la">v.</abbr> Greenman, 110 U. S., 421 (1884), citing and quoting -McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_70" href="#FNanchor_70" class="fnanchor">70</a> Art. i., 8: 1, 2, 5.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_71" href="#FNanchor_71" class="fnanchor">71</a> Distinctions as to United States notes, coin, currency, legal -tender, etc., are brought out in Juilliard <abbr xml:lang="la" lang="la">v.</abbr> Greenman, <i xml:lang="la" lang="la">supra</i>; Hepburn -<abbr xml:lang="la" lang="la">v.</abbr> Griswold, 8 Wallace, 603 (1869); Parker <abbr xml:lang="la" lang="la">v.</abbr> Davis, 12 Wallace, 79 -(1871); Trebilcock <abbr xml:lang="la" lang="la">v.</abbr> Wilson, 12 Wallace, 687 (1871).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_72" href="#FNanchor_72" class="fnanchor">72</a> Knox <abbr xml:lang="la" lang="la">v.</abbr> Lee, Parker <abbr xml:lang="la" lang="la">v.</abbr> Davis, 12 Wallace, 554 (1871).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_73" href="#FNanchor_73" class="fnanchor">73</a> 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 <cite>Some -Account of the Work of Stephen J. Field as a Legislator, State Judge, -and Justice of the Supreme Court of the United States</cite> (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 <abbr xml:lang="la" lang="la">v.</abbr> Greenman -(1883), consult Rhodes, vi., 268, 270–273, and Note.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_74" href="#FNanchor_74" class="fnanchor">74</a> Art. i., 10: 1.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_75" href="#FNanchor_75" class="fnanchor">75</a> Briscoe <abbr xml:lang="la" lang="la">v.</abbr> Bank of Kentucky, 11 Peters, 257 (1837).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_76" href="#FNanchor_76" class="fnanchor">76</a> Darrington <abbr xml:lang="la" lang="la">v.</abbr> The Bank of Alabama, 13; Howard, 12 Briscoe <abbr xml:lang="la" lang="la">v.</abbr> -Bank of Kentucky, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_77" href="#FNanchor_77" class="fnanchor">77</a> Art. i., 8: 6.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_78" href="#FNanchor_78" class="fnanchor">78</a> <abbr xml:lang="la" lang="la">Id.</abbr> 5, 10: 1.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_79" href="#FNanchor_79" class="fnanchor">79</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Marigold, 9 Howard, 560 (1849); Fox <abbr xml:lang="la" lang="la">v.</abbr> Ohio, 5 -Howard, 410.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_80" href="#FNanchor_80" class="fnanchor">80</a> <i xml:lang="la" lang="la">In re</i> Rapier, 143 U. S., 110 (1892); Battle <abbr xml:lang="la" lang="la">v.</abbr> U. S., 209 U. S., 36.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_81" href="#FNanchor_81" class="fnanchor">81</a> Wheaton <abbr xml:lang="la" lang="la">v.</abbr> Peters, 8 Peters, 591 (1834).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_82" href="#FNanchor_82" class="fnanchor">82</a> Vanini <abbr xml:lang="la" lang="la">et al.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Paine <abbr xml:lang="la" lang="la">et al.</abbr> 1 Harr. (Del.) 65, quoted in Patterson -<abbr xml:lang="la" lang="la">v.</abbr> Kentucky, 97 U.S., 501 (1878).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_83" href="#FNanchor_83" class="fnanchor">83</a> <abbr xml:lang="la" lang="la">Id.</abbr> See also Herdic <abbr xml:lang="la" lang="la">v.</abbr> Roessler, 109 New York, 127 (1888); Hill -and Co. Lmtd. <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> Tilghman, 99 U.S., 558. See also -Dale Tile Mfg. Co. <abbr xml:lang="la" lang="la">v.</abbr> Hyatt, 125 U.S., 46 (1888).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_84" href="#FNanchor_84" class="fnanchor">84</a> Rex <abbr xml:lang="la" lang="la">v.</abbr> Dawson, 5 State Trials.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_85" href="#FNanchor_85" class="fnanchor">85</a> U. S. <abbr xml:lang="la" lang="la">v.</abbr> Smith, 5 Wheaton, 153 (1820).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_86" href="#FNanchor_86" class="fnanchor">86</a> Art. iii., 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_87" href="#FNanchor_87" class="fnanchor">87</a> U. S. <abbr xml:lang="la" lang="la">v.</abbr> Rodgers, 150 U. S., 249 (1893).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_88" href="#FNanchor_88" class="fnanchor">88</a> Art. i., 8: 11; The Prize Cases, 2 Black, 635 (1862).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_89" href="#FNanchor_89" class="fnanchor">89</a> Brown <abbr xml:lang="la" lang="la">v.</abbr> U. S., 8 Cranch, 110; American Insurance Co. <abbr xml:lang="la" lang="la">v.</abbr> Canter, -1 Peters, 511; Lamar <abbr xml:lang="la" lang="la">ex.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Browne <abbr xml:lang="la" lang="la">et al.</abbr>, 92 U. S., 187; Mormon -Church <abbr xml:lang="la" lang="la">v.</abbr> U. S., 136 U. S., 1.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_90" href="#FNanchor_90" class="fnanchor">90</a> Hepburn <abbr xml:lang="la" lang="la">v.</abbr> Ellzey, 2 Cranch, 445 (1804).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_91" href="#FNanchor_91" class="fnanchor">91</a> Barron <abbr xml:lang="la" lang="la">v.</abbr> Baltimore, 7 Peters, 243 (1833).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_92" href="#FNanchor_92" class="fnanchor">92</a> Metropolitan R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> District of Columbia, 132 U. S., 1 -(1889).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_93" href="#FNanchor_93" class="fnanchor">93</a> Ft. Leavenworth R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Lowe, 114 U. S., 525 (1885).</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_94" href="#FNanchor_94" class="fnanchor">94</a> Art. iv., 3.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_95" href="#FNanchor_95" class="fnanchor">95</a> Dorr <abbr xml:lang="la" lang="la">v.</abbr> U. S., 195 U. S., 138 (1904); Hawaii <abbr xml:lang="la" lang="la">v.</abbr> Mankichi, 190 U. -S., 197 (1903); Dooley <abbr xml:lang="la" lang="la">v.</abbr> U. S., 183 U. S., 151 (1901); Downes <abbr xml:lang="la" lang="la">v.</abbr> -Bidwell, 182 U. S. (1901); Rasmussen <abbr xml:lang="la" lang="la">v.</abbr> U. S., 197 U. S., Weems <abbr xml:lang="la" lang="la">v.</abbr> -U. S., 217 U. S., 349. (But see dissenting opinions in above cases.)</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_96" href="#FNanchor_96" class="fnanchor">96</a> Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, <i xml:lang="la" lang="la">supra</i>, and cases and laws therein cited and -quoted.</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_97" href="#FNanchor_97" class="fnanchor">97</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_98" href="#FNanchor_98" class="fnanchor">98</a> 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?</p></div> - -<div class="footnote"> - -<p class="fn2"><a id="Footnote_99" href="#FNanchor_99" class="fnanchor">99</a> Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, <i xml:lang="la" lang="la">supra</i>. (The Court cites, in confirmation, -the history of Congress and of the British Parliament.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_100" href="#FNanchor_100" class="fnanchor">100</a> Bank of Commerce <abbr xml:lang="la" lang="la">v.</abbr> New York City, 2 Black, 620 (1862) quoting -from McCulloch <abbr xml:lang="la" lang="la">v.</abbr> 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.” <abbr xml:lang="la" lang="la">Id.</abbr> -429.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_101" href="#FNanchor_101" class="fnanchor">101</a> Bank of Commerce <abbr xml:lang="la" lang="la">v.</abbr> New York City, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_102" href="#FNanchor_102" class="fnanchor">102</a> Loan Association <abbr xml:lang="la" lang="la">v.</abbr> Topeka, 20 Wallace, 655 (1874), quoting -Cooley on <cite>Constitutional Limitations</cite>, 479.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_103" href="#FNanchor_103" class="fnanchor">103</a> P. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> 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 <cite>The Federalist</cite>, No. xxxii.,—the -classic contemporaneous exposition of the taxing clauses of -the Constitution. For a judicial examination of these clauses see -Transportation Company <abbr xml:lang="la" lang="la">v.</abbr> 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. <abbr xml:lang="la" lang="la">v.</abbr> Wheeling, from McCulloch -<abbr xml:lang="la" lang="la">v.</abbr> Maryland is not verbally accurate.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_104" href="#FNanchor_104" class="fnanchor">104</a> The phrase (<em>Federalist</em>, No. lxii.) may be Hamilton’s or Madison’s.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_105" href="#FNanchor_105" class="fnanchor">105</a> P. R. Co., <abbr xml:lang="la" lang="la">v.</abbr> Pennsylvania, 15 Wallace, 300.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_106" href="#FNanchor_106" class="fnanchor">106</a> This principle applies also in international law.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_107" href="#FNanchor_107" class="fnanchor">107</a> The principle is established in McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_108" href="#FNanchor_108" class="fnanchor">108</a> Kirtland <abbr xml:lang="la" lang="la">v.</abbr> Hotchkiss, 100 U. S., 491 (1879).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_109" href="#FNanchor_109" class="fnanchor">109</a> Kirtland <abbr xml:lang="la" lang="la">v.</abbr> Hotchkiss, <i xml:lang="la" lang="la">supra</i>. 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 <abbr xml:lang="la" lang="la">v.</abbr> Multnomah -County, 169 U. S., 421 (1898).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_110" href="#FNanchor_110" class="fnanchor">110</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, <i xml:lang="la" lang="la">supra</i>, quoted in The Collector <abbr xml:lang="la" lang="la">v.</abbr> Day, -11 Wallace, 113 (1870).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_111" href="#FNanchor_111" class="fnanchor">111</a> The Collector <abbr xml:lang="la" lang="la">v.</abbr> Day, <i xml:lang="la" lang="la">supra</i>. (The Court quotes the Tenth -Amendment, in this connection, as the basis of its decision.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_112" href="#FNanchor_112" class="fnanchor">112</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_113" href="#FNanchor_113" class="fnanchor">113</a> The Collector <abbr xml:lang="la" lang="la">v.</abbr> Day, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_114" href="#FNanchor_114" class="fnanchor">114</a> <abbr xml:lang="la" lang="la">Id.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_115" href="#FNanchor_115" class="fnanchor">115</a> The Collector <abbr xml:lang="la" lang="la">v.</abbr> Day, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_116" href="#FNanchor_116" class="fnanchor">116</a> <abbr xml:lang="la" lang="la">Id.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_117" href="#FNanchor_117" class="fnanchor">117</a> Amendment XVI.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_118" href="#FNanchor_118" class="fnanchor">118</a> Compare the effect of the Thirteenth Amendment, the Fourteenth -and Fifteenth Amendments on the decision of the Supreme -Court in Scott <abbr xml:lang="la" lang="la">v.</abbr> Sandford, 19 Howard, 393 (1857).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_119" href="#FNanchor_119" class="fnanchor">119</a> 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 -<abbr xml:lang="la" lang="la">v.</abbr> Pennsylvania, 122 U. S., 326 (1887).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_120" href="#FNanchor_120" class="fnanchor">120</a> United States <abbr xml:lang="la" lang="la">v.</abbr> R. R. Co., 17 Wallace, 322 (1873).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_121" href="#FNanchor_121" class="fnanchor">121</a> See the Chapter on <i><a href="#CHAPTER_XI">The Law of Fundamental Rights</a></i>, <i xml:lang="la" lang="la">post</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_122" href="#FNanchor_122" class="fnanchor">122</a> Wisconsin Central R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> 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. <abbr xml:lang="la" lang="la">v.</abbr> Franklin, 65 N. H., 177; Florida -Central Railway Co. <abbr xml:lang="la" lang="la">v.</abbr> Reynolds, 183 U. S., 476; <i xml:lang="la" lang="la">Per contra</i>, Brewer -Brick Co. <abbr xml:lang="la" lang="la">v.</abbr> Brewer, 62 Maine, 62.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_123" href="#FNanchor_123" class="fnanchor">123</a> Loan Association <abbr xml:lang="la" lang="la">v.</abbr> Topeka, 20 Wallace, 655 (1874); Kingman <abbr xml:lang="la" lang="la">v.</abbr> -City of Brockton, 153 Mass., 255 (1891); an admirable note citing -decisions as to a good tax may be found in L. B. Evans, <cite>Leading -Cases on American Constitutional Law</cite> (Ed. 1916), p. 211.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_124" href="#FNanchor_124" class="fnanchor">124</a> Art. i., 2: 3; 8: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_125" href="#FNanchor_125" class="fnanchor">125</a> Art. i., 8: 1. Kentucky Railroad Tax Cases, 115 U. S., 321 -(1885); Kelly <abbr xml:lang="la" lang="la">v.</abbr> Pittsburgh, 104 U. S., 78 (1881); French <abbr xml:lang="la" lang="la">v.</abbr> Barber -Asphalt Paving Co., 181 U. S., 324 (1901); Veazie Bank <abbr xml:lang="la" lang="la">v.</abbr> Fenne, 8 -Wallace, 533 (1869); Corporation Tax Cases, 220 U. S., 611 (1911).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_126" href="#FNanchor_126" class="fnanchor">126</a> South Carolina <abbr xml:lang="la" lang="la">v.</abbr> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_127" href="#FNanchor_127" class="fnanchor">127</a> Art. i., viii., 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_128" href="#FNanchor_128" class="fnanchor">128</a> Brig Wilson <abbr xml:lang="la" lang="la">v.</abbr> U. S., 1 Brockenbrough, 437 (1820).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_129" href="#FNanchor_129" class="fnanchor">129</a> See decision of the Supreme Court sustaining the “Webb-Kenyon” -Law decommercializing (interstate) intoxicating liquors, -Clark Distilling Company <abbr xml:lang="la" lang="la">v.</abbr> W. Md. R. R. Co.; <abbr xml:lang="la" lang="la">Id.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Am. Ex. Co. -and State of W. Va. (January 8, 1917). -</p> -<p> -The power of Congress to deal with the hours of work and wages -of employees engaged in interstate commerce is examined in Wilson -<abbr xml:lang="la" lang="la">v.</abbr> New and Ferris, Receivers, Mo. Ok., & G. Railway Co., March 19, -1917. (Constitutionality of the “Adamson” law.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_130" href="#FNanchor_130" class="fnanchor">130</a> Art. vi., 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_131" href="#FNanchor_131" class="fnanchor">131</a> Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 177 (1803).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_132" href="#FNanchor_132" class="fnanchor">132</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 430 (1819).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_133" href="#FNanchor_133" class="fnanchor">133</a> Brown <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 12 Wheaton, 419 (1827).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_134" href="#FNanchor_134" class="fnanchor">134</a> Gibbons <abbr xml:lang="la" lang="la">v.</abbr> Ogden, 9 Wheaton, 1 (1824).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_135" href="#FNanchor_135" class="fnanchor">135</a> Pensacola Telegraph Co. <abbr xml:lang="la" lang="la">v.</abbr> Western Union Telegraph Co., 96 -U. S., 1 (1877).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_136" href="#FNanchor_136" class="fnanchor">136</a> So in Gibbon <abbr xml:lang="la" lang="la">v.</abbr> Ogden, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_137" href="#FNanchor_137" class="fnanchor">137</a> Henderson <abbr xml:lang="la" lang="la">v.</abbr> Mayor of New York, 92 U. S., 259 (1875); L. S. -& M. S. Railway Co. <abbr xml:lang="la" lang="la">v.</abbr> Ohio, 173 U. S. (1899); Railroad Co. <abbr xml:lang="la" lang="la">v.</abbr> -Husen, 95 U. S., 465 (1877); Brimmer <abbr xml:lang="la" lang="la">v.</abbr> Rebman, 138 U. S., 78 -(1891); Morgan’s S. S. Co. <abbr xml:lang="la" lang="la">v.</abbr> Louisiana Board of Health, 118 U. S., -455 (1886); Leisy <abbr xml:lang="la" lang="la">v.</abbr> Hardin, 135 U. S., 100 (1890); Schellenberger -<abbr xml:lang="la" lang="la">v.</abbr> Pennsylvania, 171 U. S., 1 (1898).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_138" href="#FNanchor_138" class="fnanchor">138</a> The trend of these respective lines is disclosed by the decisions -in the cases cited in this Chapter.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_139" href="#FNanchor_139" class="fnanchor">139</a> Pensacola Telegraph Co. <abbr xml:lang="la" lang="la">v.</abbr> 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 -<abbr xml:lang="la" lang="la">v.</abbr> 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).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_140" href="#FNanchor_140" class="fnanchor">140</a> <i>The Daniel Ball</i>, 10 Wallace, 557 (1870).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_141" href="#FNanchor_141" class="fnanchor">141</a> Act of Congress, March 2, 1893.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_142" href="#FNanchor_142" class="fnanchor">142</a> “The insurance business does not constitute interstate commerce.” -Paul <abbr xml:lang="la" lang="la">v.</abbr> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_143" href="#FNanchor_143" class="fnanchor">143</a> The Sherman Anti-Trust Law of July 2, 1890, and decisions of the -Supreme Court concerning it, are illustrations.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_144" href="#FNanchor_144" class="fnanchor">144</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_145" href="#FNanchor_145" class="fnanchor">145</a> United States <abbr xml:lang="la" lang="la">v.</abbr> E. C. Knight Co., 156 U. S., 1 (1895).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_146" href="#FNanchor_146" class="fnanchor">146</a> Art. i., 8: 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_147" href="#FNanchor_147" class="fnanchor">147</a> Coe <abbr xml:lang="la" lang="la">v.</abbr> Errol, 116 U. S., 525.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_148" href="#FNanchor_148" class="fnanchor">148</a> Kidd <abbr xml:lang="la" lang="la">v.</abbr> Pearson, 128 U. S., 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_149" href="#FNanchor_149" class="fnanchor">149</a> Cooley <abbr xml:lang="la" lang="la">v.</abbr> Board of Wardens of the Port of Philadelphia, 12 Howard, -299 (1851).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_150" href="#FNanchor_150" class="fnanchor">150</a> Escanaba Company <abbr xml:lang="la" lang="la">v.</abbr> Chicago, 107 U. S., 678 (1882).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_151" href="#FNanchor_151" class="fnanchor">151</a> Harman <abbr xml:lang="la" lang="la">v.</abbr> Chicago, 147 U. S., 396 (1893).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_152" href="#FNanchor_152" class="fnanchor">152</a> Sands <abbr xml:lang="la" lang="la">v.</abbr> Manistee River Improvement Company, 123 U. S., 238.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_153" href="#FNanchor_153" class="fnanchor">153</a> Brown <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 12 Wheaton, 419 (1827).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_154" href="#FNanchor_154" class="fnanchor">154</a> Brown <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 12 Wheaton, 419 (1827).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_155" href="#FNanchor_155" class="fnanchor">155</a> Walton <abbr xml:lang="la" lang="la">v.</abbr> Missouri, 91 U. S., 275 (1875).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_156" href="#FNanchor_156" class="fnanchor">156</a> The evil effect of discriminating State legislation, and the like, -during the Articles of Confederation, are dwelt on by the Court in -Walton <abbr xml:lang="la" lang="la">v.</abbr> Missouri, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_157" href="#FNanchor_157" class="fnanchor">157</a> Walton <abbr xml:lang="la" lang="la">v.</abbr> Missouri, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_158" href="#FNanchor_158" class="fnanchor">158</a> Robbins <abbr xml:lang="la" lang="la">v.</abbr> Shelby County Taxing District, 120 U. S., 489 -(1887).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_159" href="#FNanchor_159" class="fnanchor">159</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_160" href="#FNanchor_160" class="fnanchor">160</a> Crutcher <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, 141 U. S., 47 (1891).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_161" href="#FNanchor_161" class="fnanchor">161</a> As by the act forbidding the transportation of lottery tickets -through the mails.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_162" href="#FNanchor_162" class="fnanchor">162</a> Crutcher <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, 141 U. S., 47 (1891).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_163" href="#FNanchor_163" class="fnanchor">163</a> <abbr xml:lang="la" lang="la">Idem.</abbr> Cases decisive of the police powers of a State are numerous. -The principle involved may be deduced from Railroad Company -<abbr xml:lang="la" lang="la">v.</abbr> Huson, 95 U. S., 465 (1877); Brimmer <abbr xml:lang="la" lang="la">v.</abbr> Rebman, 138 U. S., -78 (1891); Morgan’s S. S. Company <abbr xml:lang="la" lang="la">v.</abbr> Louisiana Board of Health, -118 U. S., 455 (1886); Leisy <abbr xml:lang="la" lang="la">v.</abbr> Hardin, 135 U. S., 100 (1890); L. S. -and M. S. R. R. <abbr xml:lang="la" lang="la">v.</abbr> Ohio, 173 U. S., 285 (1899).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_164" href="#FNanchor_164" class="fnanchor">164</a> Crutcher <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_165" href="#FNanchor_165" class="fnanchor">165</a> Brown <abbr xml:lang="la" lang="la">v.</abbr> Houston, 114 U. S., 622 (1885), in which the cases are -cited.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_166" href="#FNanchor_166" class="fnanchor">166</a> Telegraph Company <abbr xml:lang="la" lang="la">v.</abbr> Texas, 105 U. S., 460 (1881).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_167" href="#FNanchor_167" class="fnanchor">167</a> Leisy <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> Iowa, 170 U. S., 412 -(1898). Schellenberger <abbr xml:lang="la" lang="la">v.</abbr> Pennsylvania, 171 U. S., 1 (1898); and -cases cited <i xml:lang="la" lang="la">supra</i> touching State police power.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_168" href="#FNanchor_168" class="fnanchor">168</a> The Passenger Cases, 7 Howard, 283.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_169" href="#FNanchor_169" class="fnanchor">169</a> R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Huson, 95 U. S., 465 (1877).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_170" href="#FNanchor_170" class="fnanchor">170</a> Turner <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 107 U. S., 38 (1882).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_171" href="#FNanchor_171" class="fnanchor">171</a> Inman S. S. Co. <abbr xml:lang="la" lang="la">v.</abbr> Tinker, 94 U. S., 238 (1876).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_172" href="#FNanchor_172" class="fnanchor">172</a> Packet Co. <abbr xml:lang="la" lang="la">v.</abbr> Keokuk, 95 U. S., 80 (1877).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_173" href="#FNanchor_173" class="fnanchor">173</a> Transportation Co. <abbr xml:lang="la" lang="la">v.</abbr> Wheeling, 99 U. S., 273 (1878).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_174" href="#FNanchor_174" class="fnanchor">174</a> Lottery Cases, 188 U. S., 321 (1903).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_175" href="#FNanchor_175" class="fnanchor">175</a> <abbr xml:lang="la" lang="la">Id.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_176" href="#FNanchor_176" class="fnanchor">176</a> 26 Statutes at Large, 209.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_177" href="#FNanchor_177" class="fnanchor">177</a> Northern Securities Company <abbr xml:lang="la" lang="la">v.</abbr> United States, 193 U. S., 197 -(1904).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_178" href="#FNanchor_178" class="fnanchor">178</a> Beef-Trust case, Swift and Co. <abbr xml:lang="la" lang="la">v.</abbr> U. S., 196 U. S., 375.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_179" href="#FNanchor_179" class="fnanchor">179</a> Danbury Hatters’ Case, Loewe <abbr xml:lang="la" lang="la">v.</abbr> Lawler, 208 U. S., 274; see also -Pullman Car Company, 64 Fed. Reporter, 724.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_180" href="#FNanchor_180" class="fnanchor">180</a> <i xml:lang="la" lang="la">In re</i> Neagle, 135 U. S., 1 (1889).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_181" href="#FNanchor_181" class="fnanchor">181</a> <i xml:lang="la" lang="la">In re</i> Debs, 158 U. S., 564 (1895).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_182" href="#FNanchor_182" class="fnanchor">182</a> The Addystone Pipe & Steel Company <abbr xml:lang="la" lang="la">v.</abbr> United States, 175 -U. S., 211 (1899).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_183" href="#FNanchor_183" class="fnanchor">183</a> The Shreveport Case, (Houston, East and West Texas Railway -Co. <abbr xml:lang="la" lang="la">v.</abbr> United States; Texas and Pacific Railway Co. <abbr xml:lang="la" lang="la">v.</abbr> United -States) 234 U. S., 342 (1914). -</p> -<p> -<span class="smcap">Note.</span>—Cases further illustrating prohibition of a business or -activity by operation of laws passed under the commerce clause: -United States <abbr xml:lang="la" lang="la">v.</abbr> Holliday, 3 Wallace, 407 (1866); Buttfield <abbr xml:lang="la" lang="la">v.</abbr> -Stranahan, 192 U. S., 470 (1904); U. S. <abbr xml:lang="la" lang="la">v.</abbr> Del. & Hudson Ry., -213 U. S., 366 (1909); Hope <abbr xml:lang="la" lang="la">v.</abbr> U. S., 227 U. S., 308 (1913). -</p> -<p> -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 <abbr xml:lang="la" lang="la">v.</abbr> S. S. Co., 102 U. S., 541 (1880); Wilmington -Transportation Co. <abbr xml:lang="la" lang="la">v.</abbr> California Railroad Commission, 236 U. S., -151 (1915); Hanley <abbr xml:lang="la" lang="la">v.</abbr> Kansas City Southern Ry., 187 U. S., 617 -(1903). -</p> -<p> -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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_184" href="#FNanchor_184" class="fnanchor">184</a> Art. i., 10: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_185" href="#FNanchor_185" class="fnanchor">185</a> McCrackin <abbr xml:lang="la" lang="la">v.</abbr> Hayward, 2 Howard, 608 (1844).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_186" href="#FNanchor_186" class="fnanchor">186</a> Woodruff <abbr xml:lang="la" lang="la">v.</abbr> Trapnall, 10 Howard, 190 (1850).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_187" href="#FNanchor_187" class="fnanchor">187</a> Woodruff <abbr xml:lang="la" lang="la">v.</abbr> Trapnall, 10 Howard, 190 (1850).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_188" href="#FNanchor_188" class="fnanchor">188</a> Murray <abbr xml:lang="la" lang="la">v.</abbr> Charleston, 96 U. S., 432 (1877).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_189" href="#FNanchor_189" class="fnanchor">189</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_190" href="#FNanchor_190" class="fnanchor">190</a> Salt Company <abbr xml:lang="la" lang="la">v.</abbr> East Saginaw, 13 Wallace, 373 (1871).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_191" href="#FNanchor_191" class="fnanchor">191</a> Fisk <abbr xml:lang="la" lang="la">v.</abbr> Jefferson Police Jury, 116, U. S., 131 (1885).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_192" href="#FNanchor_192" class="fnanchor">192</a> Trustees of Dartmouth College <abbr xml:lang="la" lang="la">v.</abbr> Woodward, 4 Wheaton, 518 -(1819).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_193" href="#FNanchor_193" class="fnanchor">193</a> Case of the conjunction of Washington and Jefferson Colleges, -Pennsylvania College Cases, 13 Wallace, 190 (1871).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_194" href="#FNanchor_194" class="fnanchor">194</a> Boyd <abbr xml:lang="la" lang="la">v.</abbr> Alabama, 94 U. S., 645.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_195" href="#FNanchor_195" class="fnanchor">195</a> Beer Company <abbr xml:lang="la" lang="la">v.</abbr> Massachusetts, 97 U. S., 25 (1877).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_196" href="#FNanchor_196" class="fnanchor">196</a> Douglas <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, 168 U. S., 488 (1897).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_197" href="#FNanchor_197" class="fnanchor">197</a> Douglas <abbr xml:lang="la" lang="la">v.</abbr> Kentucky, <i xml:lang="la" lang="la">supra</i>; New Orleans Gas Co. <abbr xml:lang="la" lang="la">v.</abbr> Louisiana -Light Co., 115 U. S., 650 (1885).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_198" href="#FNanchor_198" class="fnanchor">198</a> See the cases cited in New Orleans Gas Co. <abbr xml:lang="la" lang="la">v.</abbr> Louisiana, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_199" href="#FNanchor_199" class="fnanchor">199</a> Georgia R. R. and Banking Co. <abbr xml:lang="la" lang="la">v.</abbr> Smith, 128 U. S., 174 (1888); -East Hartford <abbr xml:lang="la" lang="la">v.</abbr> Hartford Bridge Co., 10 Howard, 511 (1850). -But a judgment (judicial decision) is not a contract in the meaning -of the Constitution. Morley <abbr xml:lang="la" lang="la">v.</abbr> L. S. & M. S. R. R., 146 U. S., 162 -(1892).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_200" href="#FNanchor_200" class="fnanchor">200</a> McCrackin <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> Barry, 15 Wallace, 610 (1872); Mitchell <abbr xml:lang="la" lang="la">v.</abbr> -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).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_201" href="#FNanchor_201" class="fnanchor">201</a> Juilliard <abbr xml:lang="la" lang="la">v.</abbr> Greenman, 110 U. S., 421 (1884), and see note <i xml:lang="la" lang="la">supra</i>, -p. 92.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_202" href="#FNanchor_202" class="fnanchor">202</a> Consult Mitchell <abbr xml:lang="la" lang="la">v.</abbr> Clark, 110 U. S., 633 (1884) from which the -quotation is taken.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_203" href="#FNanchor_203" class="fnanchor">203</a> This raises the whole question of national sovereignty.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_204" href="#FNanchor_204" class="fnanchor">204</a> Amendment V.; XIV.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_205" href="#FNanchor_205" class="fnanchor">205</a> Missouri Pacific Ry. <abbr xml:lang="la" lang="la">v.</abbr> Nebraska, 164 U. S., 403 (1896).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_206" href="#FNanchor_206" class="fnanchor">206</a> Pennoyer <abbr xml:lang="la" lang="la">v.</abbr> Neff, 95 U. S., 714 (1877); Arndt <abbr xml:lang="la" lang="la">v.</abbr> Griggs, 134 U. S., -316 (1890).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_207" href="#FNanchor_207" class="fnanchor">207</a> Cunnius <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_208" href="#FNanchor_208" class="fnanchor">208</a> License Cases, 5 Howard, 588.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_209" href="#FNanchor_209" class="fnanchor">209</a> Bartemeyer <abbr xml:lang="la" lang="la">v.</abbr> Iowa, 18 Wallace, 129.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_210" href="#FNanchor_210" class="fnanchor">210</a> Foster <abbr xml:lang="la" lang="la">v.</abbr> Kansas, 112 U. S., 201.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_211" href="#FNanchor_211" class="fnanchor">211</a> Mugler <abbr xml:lang="la" lang="la">v.</abbr> Kansas, 123 U. S., 623 (1887).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_212" href="#FNanchor_212" class="fnanchor">212</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_213" href="#FNanchor_213" class="fnanchor">213</a> Amendment V.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_214" href="#FNanchor_214" class="fnanchor">214</a> Pumpelly <abbr xml:lang="la" lang="la">v.</abbr> Green Bay Co., 13 Wallace, 166 (1871).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_215" href="#FNanchor_215" class="fnanchor">215</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_216" href="#FNanchor_216" class="fnanchor">216</a> Preceding case and Central Bridge Corporation <abbr xml:lang="la" lang="la">v.</abbr> City of Lowell, -Gray (Mass.), 474 (1855).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_217" href="#FNanchor_217" class="fnanchor">217</a> Pierce <abbr xml:lang="la" lang="la">v.</abbr> 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 (<i xml:lang="la" lang="la">inter alia</i>) that said poles, -wires, etc., disfigured and depreciated his property. See also Bedford -<abbr xml:lang="la" lang="la">v.</abbr> U. S., 192 U. S., 217 (1904); the principle therein further examined.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_218" href="#FNanchor_218" class="fnanchor">218</a> Kohl <abbr xml:lang="la" lang="la">v.</abbr> United States, 91 U. S., 367 (1875).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_219" href="#FNanchor_219" class="fnanchor">219</a> Kohl <abbr xml:lang="la" lang="la">v.</abbr> United States, 91 U. S., 367 (1875).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_220" href="#FNanchor_220" class="fnanchor">220</a> Art. i., 2: 5; 3: 6.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_221" href="#FNanchor_221" class="fnanchor">221</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_222" href="#FNanchor_222" class="fnanchor">222</a> Art. ii., 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_223" href="#FNanchor_223" class="fnanchor">223</a> <abbr xml:lang="la" lang="la">Id.</abbr> i., 8: 11.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_224" href="#FNanchor_224" class="fnanchor">224</a> <abbr xml:lang="la" lang="la">Id.</abbr> i., 7: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_225" href="#FNanchor_225" class="fnanchor">225</a> Constitution of Pennsylvania, 1873, iv., 16.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_226" href="#FNanchor_226" class="fnanchor">226</a> Art. ii., 2: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_227" href="#FNanchor_227" class="fnanchor">227</a> <abbr xml:lang="la" lang="la">Id.</abbr> <cite>The Federalist</cite>, No. lxxv.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_228" href="#FNanchor_228" class="fnanchor">228</a> Art. ii., 2: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_229" href="#FNanchor_229" class="fnanchor">229</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_230" href="#FNanchor_230" class="fnanchor">230</a> July (14?), 1864. Lincoln’s <cite>Works</cite> (Century Ed.) i., 548.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_231" href="#FNanchor_231" class="fnanchor">231</a> <i xml:lang="la" lang="la">In re</i> Neagle, 135 U. S., 1 (1889).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_232" href="#FNanchor_232" class="fnanchor">232</a> Spaulding <abbr xml:lang="la" lang="la">v.</abbr> Vilas, 161 U. S., 483; U. S. <abbr xml:lang="la" lang="la">v.</abbr> Windom, 137 U. S., -636; U. S. <abbr xml:lang="la" lang="la">v.</abbr> Blaine, 139 U. S., 306. Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, -137; Kendall <abbr xml:lang="la" lang="la">v.</abbr> U. S., 12 Peters, 524; U. S. <abbr xml:lang="la" lang="la">v.</abbr> Black, 128 U. S., -40; Mississippi <abbr xml:lang="la" lang="la">v.</abbr> Johnson, 4 Wallace, 475; Georgia <abbr xml:lang="la" lang="la">v.</abbr> Stanton, 6 -Wallace, 57.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_233" href="#FNanchor_233" class="fnanchor">233</a> <i xml:lang="la" lang="la">Ex parte</i> Garland, 4 Wallace, 333 (1886).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_234" href="#FNanchor_234" class="fnanchor">234</a> Art. i., 3: 6.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_235" href="#FNanchor_235" class="fnanchor">235</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 3: 4, 5.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_236" href="#FNanchor_236" class="fnanchor">236</a> Notes of conversation, etc., C. E., Stevens, <cite>Sources of the Constitution -of the United States</cite>, 169.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_237" href="#FNanchor_237" class="fnanchor">237</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 168.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_238" href="#FNanchor_238" class="fnanchor">238</a> Mississippi <abbr xml:lang="la" lang="la">v.</abbr> Johnson, 4 Wallace, 475 (1866).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_239" href="#FNanchor_239" class="fnanchor">239</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_240" href="#FNanchor_240" class="fnanchor">240</a> Mississippi <abbr xml:lang="la" lang="la">v.</abbr> Johnson, 4 Wallace, 475 (1866).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_241" href="#FNanchor_241" class="fnanchor">241</a> Many cases; see State <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Stone, 120 Missouri, 428 (1894), -in which most of the cases are cited. But <i xml:lang="la" lang="la">mandamus</i> will issue to an -appointee of the executive, a ministerial officer, to perform a ministerial -act. U. S. <abbr xml:lang="la" lang="la">ex rel.</abbr> Daly, 28 App. D. C., 552; 35 Wash. Law Rep., -81; Garfield <abbr xml:lang="la" lang="la">v.</abbr> U. S. <abbr xml:lang="la" lang="la">ex rel.</abbr> Frost, 30 App. D. C., 165; 35 Wash. Law -Rep., 771; Griffin <abbr xml:lang="la" lang="la">v.</abbr> U. S., <abbr xml:lang="la" lang="la">ex rel.</abbr> Le Cuyer, 30 App. D. C., 291; 36 -Wash. Law Rep., 103; Drake <abbr xml:lang="la" lang="la">v.</abbr> U. S., <abbr xml:lang="la" lang="la">ex rel.</abbr> Bates, 30 App. D. C., -312; 36 Wash. Law Rep., 140; U. S. <abbr xml:lang="la" lang="la">ex rel.</abbr> Newcomb Motor Co., -30 App. D. C., 464; 36 Wash. Law Rep., 150; also 36 Wash. Law -Rep., 681. Also U. S. <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Black, 128 U. S., 40 (1888).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_242" href="#FNanchor_242" class="fnanchor">242</a> United States <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Black, 128 U. S., 40; and see the cases -cited in preceding note.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_243" href="#FNanchor_243" class="fnanchor">243</a> Art. iii., 1: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_244" href="#FNanchor_244" class="fnanchor">244</a> For the history of this amendment see the author’s <cite>Constitutional -History of the United States</cite>, ii., 264–290.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_245" href="#FNanchor_245" class="fnanchor">245</a> See Iredell’s dissenting opinion in Chisholm <abbr xml:lang="la" lang="la">v.</abbr> Georgia, 2 Dallas -419 (1793).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_246" href="#FNanchor_246" class="fnanchor">246</a> <cite>The Federalist</cite>, No. xvi.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_247" href="#FNanchor_247" class="fnanchor">247</a> Art. iii., 2: 1; Amendment XI.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_248" href="#FNanchor_248" class="fnanchor">248</a> No. lxxx.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_249" href="#FNanchor_249" class="fnanchor">249</a> <i xml:lang="la" lang="la">In re</i> Neagle, 135 U.S., 1 (1889).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_250" href="#FNanchor_250" class="fnanchor">250</a> <cite>The Federalist</cite>, No. lxxx.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_251" href="#FNanchor_251" class="fnanchor">251</a> <abbr xml:lang="la" lang="la">Id.</abbr> For example, were the Vice-President to preside over -the Senate sitting as a Court of Impeachment.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_252" href="#FNanchor_252" class="fnanchor">252</a> <cite>The Federalist</cite>, <abbr xml:lang="la" lang="la">id.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_253" href="#FNanchor_253" class="fnanchor">253</a> <cite>The Federalist</cite>, <abbr xml:lang="la" lang="la">id.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_254" href="#FNanchor_254" class="fnanchor">254</a> Robertson <abbr xml:lang="la" lang="la">v.</abbr> Cease, 97 U. S., 646.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_255" href="#FNanchor_255" class="fnanchor">255</a> Art. iii., 2: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_256" href="#FNanchor_256" class="fnanchor">256</a> Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 174.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_257" href="#FNanchor_257" class="fnanchor">257</a> Cohens <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 6 Wheaton, 414 (1821).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_258" href="#FNanchor_258" class="fnanchor">258</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_259" href="#FNanchor_259" class="fnanchor">259</a> So Congress has denied such jurisdiction to State courts,—Revised -Statutes, U. S., Sec. 687.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_260" href="#FNanchor_260" class="fnanchor">260</a> Davis <abbr xml:lang="la" lang="la">v.</abbr> Packard, 7 Peters, 276; Börs <abbr xml:lang="la" lang="la">v.</abbr> Preston, in U. S., 252 -(1884).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_261" href="#FNanchor_261" class="fnanchor">261</a> Cohens <abbr xml:lang="la" lang="la">v.</abbr> Virginia, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_262" href="#FNanchor_262" class="fnanchor">262</a> This power has been discussed in the preceding Chapters on -Sovereignty, Legislation, Commerce, Taxation, Contracts, etc. -See index.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_263" href="#FNanchor_263" class="fnanchor">263</a> Bank of Commerce <abbr xml:lang="la" lang="la">v.</abbr> New York City, 2 Black, 620 (1862).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_264" href="#FNanchor_264" class="fnanchor">264</a> Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 137 (1803).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_265" href="#FNanchor_265" class="fnanchor">265</a> The relation of the United States to the State judiciary; the -subject of concurrent (State and federal) judicial jurisdiction, is -examined by Hamilton in <cite>The Federalist</cite>, Nos. lxxviii-lxxxiii. See also -Martin <abbr xml:lang="la" lang="la">v.</abbr> Hunter’s Lessee, 1 Wheaton, 304 (1816).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_266" href="#FNanchor_266" class="fnanchor">266</a> Hepburn <abbr xml:lang="la" lang="la">v.</abbr> Ellzey, 2 Cranch, 445 (1805).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_267" href="#FNanchor_267" class="fnanchor">267</a> Art. iii.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_268" href="#FNanchor_268" class="fnanchor">268</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Freight Association, 166 U. S., 290, citing many -cases.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_269" href="#FNanchor_269" class="fnanchor">269</a> American Insurance Company <abbr xml:lang="la" lang="la">v.</abbr> Cantor, 1 Peters, 542.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_270" href="#FNanchor_270" class="fnanchor">270</a> Luther <abbr xml:lang="la" lang="la">v.</abbr> Borden, 7 Howard, 1 (1848).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_271" href="#FNanchor_271" class="fnanchor">271</a> The whole subject of the American judiciary is largely technical -and can be known only through intimate knowledge of the <cite>Reports</cite>, -of the <cite>Statutes at Large</cite>, and familiarity with <em>practice</em>. In the present -chapter the <em>essentials of the law</em> of judicial procedure are the immediate -subject.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_272" href="#FNanchor_272" class="fnanchor">272</a> Marbury, <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 163.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_273" href="#FNanchor_273" class="fnanchor">273</a> Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 176–180.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_274" href="#FNanchor_274" class="fnanchor">274</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_275" href="#FNanchor_275" class="fnanchor">275</a> The principle is examined in State <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Stone, 120 Missouri, -428 (1894). Also in Luther <abbr xml:lang="la" lang="la">v.</abbr> Borden, 7 Howard, 1 (1848).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_276" href="#FNanchor_276" class="fnanchor">276</a> See Constitution of Massachusetts, Judiciary, III.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_277" href="#FNanchor_277" class="fnanchor">277</a> <cite>Political Science and Constitutional Law</cite>, 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.” <abbr xml:lang="la" lang="la">Id.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_278" href="#FNanchor_278" class="fnanchor">278</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Lee, 106 U. S., 196 (1882).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_279" href="#FNanchor_279" class="fnanchor">279</a> 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 <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 163.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_280" href="#FNanchor_280" class="fnanchor">280</a> State <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Simons, 32 Minn., 540 (1884). <i xml:lang="la" lang="la">Ex parte</i> -Griffiths, 118 Indiana, 83 (1889).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_281" href="#FNanchor_281" class="fnanchor">281</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_282" href="#FNanchor_282" class="fnanchor">282</a> Harwood <abbr xml:lang="la" lang="la">v.</abbr> Wentforth, 162 U. S., 547 (1896).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_283" href="#FNanchor_283" class="fnanchor">283</a> Osborn <abbr xml:lang="la" lang="la">v.</abbr> Bank of the United States, 9 Wheaton, 738 (1824).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_284" href="#FNanchor_284" class="fnanchor">284</a> Osborn <abbr xml:lang="la" lang="la">v.</abbr> Bank of the United States, 9 Wheaton, 738 (1824).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_285" href="#FNanchor_285" class="fnanchor">285</a> Many cases; see Southern Pacific Railroad Co. <abbr xml:lang="la" lang="la">v.</abbr> California, 118 -U. S., 109 (1866); Beck <abbr xml:lang="la" lang="la">v.</abbr> Perkins, 139 U. S., 628 (1891).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_286" href="#FNanchor_286" class="fnanchor">286</a> Börs <abbr xml:lang="la" lang="la">v.</abbr> Preston, 111 U. S., 252. (1884).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_287" href="#FNanchor_287" class="fnanchor">287</a> The steamboat <i>Magnolia</i>, 20 Howard, 296 (1857).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_288" href="#FNanchor_288" class="fnanchor">288</a> <i xml:lang="la" lang="la">Ex parte</i> 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); <i xml:lang="la" lang="la">Ex parte</i> Boyer, 109 -U. S., 629 (1884).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_289" href="#FNanchor_289" class="fnanchor">289</a> Stanley <abbr xml:lang="la" lang="la">v.</abbr> Schwalby, 162 U. S., 255 (1896), where the cases are -cited.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_290" href="#FNanchor_290" class="fnanchor">290</a> Cohens <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 6 Wheaton, 414 (1821).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_291" href="#FNanchor_291" class="fnanchor">291</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Texas, 143 U. S., 621 (1892). The doctrine -also in South Dakota <abbr xml:lang="la" lang="la">v.</abbr> North Dakota, 192 U. S., 286 (1904).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_292" href="#FNanchor_292" class="fnanchor">292</a> Ames <abbr xml:lang="la" lang="la">v.</abbr> 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).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_293" href="#FNanchor_293" class="fnanchor">293</a> Wisconsin <abbr xml:lang="la" lang="la">v.</abbr> Pelican Insurance Co., 127 U. S., 265 (1888).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_294" href="#FNanchor_294" class="fnanchor">294</a> Hans <abbr xml:lang="la" lang="la">v.</abbr> 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 <cite>The Federalist</cite>, 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 <abbr xml:lang="la" lang="la">v.</abbr> -Georgia, 2 Dallas, 419; and a special history of the Amendment in -the author’s <cite>Constitutional History of the United States</cite>, 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. -<abbr xml:lang="la" lang="la">v.</abbr> 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. <abbr xml:lang="la" lang="la">v.</abbr> Lee, 106 U. S., 196 (1882); Cunningham <abbr xml:lang="la" lang="la">v.</abbr> -Macon & Brunswick R. R. Co., 109 U. S., 446 (1883).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_295" href="#FNanchor_295" class="fnanchor">295</a> Judiciary Act, 1789, 1888 (and so amended.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_296" href="#FNanchor_296" class="fnanchor">296</a> The Ohio and Mississippi R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Wheeler, 1 Black, 286 -(1861). Hooe <abbr xml:lang="la" lang="la">v.</abbr> Jamieson, 166 U. S., 395 (1897).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_297" href="#FNanchor_297" class="fnanchor">297</a> Martin <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> 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,” <i xml:lang="la" lang="la">Ex parte</i>, Watkins, 7 Peters, 568 (1833).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_298" href="#FNanchor_298" class="fnanchor">298</a> Gaines <abbr xml:lang="la" lang="la">v.</abbr> Fuentes, 92 U. S., 10 (1875). Security Mutual Life -Insurance Company <abbr xml:lang="la" lang="la">v.</abbr> Prewitt, 202 U. S., 246 (1906).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_299" href="#FNanchor_299" class="fnanchor">299</a> Whitten <abbr xml:lang="la" lang="la">v.</abbr> Tomlinson, 160 U. S., 231 (1895). But as to -conflicting jurisdiction of State and federal courts see Riggs <abbr xml:lang="la" lang="la">v.</abbr> -Johnson County, 6 Wallace, 166 (1867).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_300" href="#FNanchor_300" class="fnanchor">300</a> Green <abbr xml:lang="la" lang="la">v.</abbr> Neal’s Lessee, 6 Peters, 291 (1832).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_301" href="#FNanchor_301" class="fnanchor">301</a> <abbr xml:lang="la" lang="la">Idem.</abbr> The question is examined in Pana <abbr xml:lang="la" lang="la">v.</abbr> Bowler, 107 U. S., -529 (1882). Gelpoke <abbr xml:lang="la" lang="la">v.</abbr> City of Dubuque, 1 Wallace, 175 (1863).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_302" href="#FNanchor_302" class="fnanchor">302</a> Burgess <abbr xml:lang="la" lang="la">v.</abbr> Seligman, 107 U. S., 20 (1883). Bucher <abbr xml:lang="la" lang="la">v.</abbr> Cheshire -R. R. Co., 125 U. S., 555 (1888).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_303" href="#FNanchor_303" class="fnanchor">303</a> Smith <abbr xml:lang="la" lang="la">v.</abbr> Alabama, 124 U. S., 465 (1888). Western Union -Telegraph Company <abbr xml:lang="la" lang="la">v.</abbr> Call Publishing Company, 181 U. S., 92 -(1901).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_304" href="#FNanchor_304" class="fnanchor">304</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_305" href="#FNanchor_305" class="fnanchor">305</a> Thompson <abbr xml:lang="la" lang="la">v.</abbr> Whitman, 18 Wallace, 457 (1873).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_306" href="#FNanchor_306" class="fnanchor">306</a> McElmayle <abbr xml:lang="la" lang="la">v.</abbr> Cohen, 13 Peters, 312. Story, <cite>Commentaries on -the Constitution</cite>, 1313.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_307" href="#FNanchor_307" class="fnanchor">307</a> Williamson <abbr xml:lang="la" lang="la">v.</abbr> Berry, 8 Howard, 540.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_308" href="#FNanchor_308" class="fnanchor">308</a> Thompson <abbr xml:lang="la" lang="la">v.</abbr> Whitman, 18 Wallace, 457.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_309" href="#FNanchor_309" class="fnanchor">309</a> Hanley <abbr xml:lang="la" lang="la">v.</abbr> Donaghue, 116 U. S., 1 (1885).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_310" href="#FNanchor_310" class="fnanchor">310</a> Hanley <abbr xml:lang="la" lang="la">v.</abbr> Donaghue, 116 U. S., 1 (1885).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_311" href="#FNanchor_311" class="fnanchor">311</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_312" href="#FNanchor_312" class="fnanchor">312</a> Talbot <abbr xml:lang="la" lang="la">v.</abbr> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_313" href="#FNanchor_313" class="fnanchor">313</a> Buckner <abbr xml:lang="la" lang="la">v.</abbr> Finley, 2 Peters, 590 (1829).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_314" href="#FNanchor_314" class="fnanchor">314</a> Buckner <abbr xml:lang="la" lang="la">v.</abbr> Finley, 2 Peters, 590 (1829).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_315" href="#FNanchor_315" class="fnanchor">315</a> Art. iii., 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_316" href="#FNanchor_316" class="fnanchor">316</a> Paul <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 8 Wallace, 168 (1868).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_317" href="#FNanchor_317" class="fnanchor">317</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_318" href="#FNanchor_318" class="fnanchor">318</a> Ward <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 12 Wallace, 418.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_319" href="#FNanchor_319" class="fnanchor">319</a> Slaughter House Cases, 16 Wallace, 77 (1872). Blake <abbr xml:lang="la" lang="la">v.</abbr> -McClung, 172 U. S., 239 (1898).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_320" href="#FNanchor_320" class="fnanchor">320</a> Blake <abbr xml:lang="la" lang="la">v.</abbr> McClung, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_321" href="#FNanchor_321" class="fnanchor">321</a> <i xml:lang="la" lang="la">Ex parte</i> Reggel, 114 U. S., 642 (1885). Pennoyer <abbr xml:lang="la" lang="la">v.</abbr> Neff, 95 -U. S., 714 (1877).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_322" href="#FNanchor_322" class="fnanchor">322</a> Art. iv., 2: 2. Revised Statutes, §§ 5278, 5279.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_323" href="#FNanchor_323" class="fnanchor">323</a> <i xml:lang="la" lang="la">Ex parte</i> Reggel, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_324" href="#FNanchor_324" class="fnanchor">324</a> Lascelles <abbr xml:lang="la" lang="la">v.</abbr> Georgia, 148 U. S., 537 (1893).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_325" href="#FNanchor_325" class="fnanchor">325</a> Art. i., 10: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_326" href="#FNanchor_326" class="fnanchor">326</a> Lascelles <abbr xml:lang="la" lang="la">v.</abbr> Georgia, <i xml:lang="la" lang="la">supra</i>. In international law the right of -extradition does not include fugitives for <em>political</em> offenses. This -exemption is an incident of sovereignty.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_327" href="#FNanchor_327" class="fnanchor">327</a> Consult United States <abbr xml:lang="la" lang="la">v.</abbr> Rauscher, 119 U. S., 407.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_328" href="#FNanchor_328" class="fnanchor">328</a> Lascelles <abbr xml:lang="la" lang="la">v.</abbr> Georgia, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_329" href="#FNanchor_329" class="fnanchor">329</a> Luther <abbr xml:lang="la" lang="la">v.</abbr> Borden, 7 Howard, 1 (1848).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_330" href="#FNanchor_330" class="fnanchor">330</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_331" href="#FNanchor_331" class="fnanchor">331</a> Luther <abbr xml:lang="la" lang="la">v.</abbr> Borden, 7 Howard, 1 (1848).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_332" href="#FNanchor_332" class="fnanchor">332</a> Art. iv., 4: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_333" href="#FNanchor_333" class="fnanchor">333</a> Minor <abbr xml:lang="la" lang="la">v.</abbr> Happersett, 21 Wallace, 162 (1874).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_334" href="#FNanchor_334" class="fnanchor">334</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_335" href="#FNanchor_335" class="fnanchor">335</a> Texas <abbr xml:lang="la" lang="la">v.</abbr> White, 7 Wallace, 700 (1868).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_336" href="#FNanchor_336" class="fnanchor">336</a> There are many cases expository of this principle: McCulloch -<abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 316; Barron <abbr xml:lang="la" lang="la">v.</abbr> Baltimore, 7 Peters, 243; -Slaughter House Cases, 16 Wallace, 36; United States <abbr xml:lang="la" lang="la">v.</abbr> Cruikshank, -92 U. S., 542; <i xml:lang="la" lang="la">Ex parte</i> Siebold, 100 U. S., 371; Fong Yue -Ting <abbr xml:lang="la" lang="la">v.</abbr> U. S., 149 U. S., 698; Legal Tender Cases, 12 Wallace, 457.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_337" href="#FNanchor_337" class="fnanchor">337</a> Art. iv., 3: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_338" href="#FNanchor_338" class="fnanchor">338</a> 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 <abbr xml:lang="la" lang="la">v.</abbr> Sinkler, 179 U. S., 58; <i xml:lang="la" lang="la">Ex parte</i> Yarbrough, -110 U. S., 651, and in all other Federal relations.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_339" href="#FNanchor_339" class="fnanchor">339</a> Sands <abbr xml:lang="la" lang="la">v.</abbr> Manistee Improvement Company, 123 U. S., 288 (1887).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_340" href="#FNanchor_340" class="fnanchor">340</a> 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 <cite>The Federal and State Constitutions, Colonial Charters, -and other Organic Laws of the States, Territories and Colonies Forming -the United States of America</cite>. 7 vols. Washington, Government -Printing Office 1909.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_341" href="#FNanchor_341" class="fnanchor">341</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_342" href="#FNanchor_342" class="fnanchor">342</a> Art. iv., 3: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_343" href="#FNanchor_343" class="fnanchor">343</a> American Insurance Company <abbr xml:lang="la" lang="la">v.</abbr> Canter, 1 Peters, 551 (1828). -National Bank <abbr xml:lang="la" lang="la">v.</abbr> County of Yankton, 101 U. S., 129 (1879).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_344" href="#FNanchor_344" class="fnanchor">344</a> National Bank <abbr xml:lang="la" lang="la">v.</abbr> County of Yankton, <i xml:lang="la" lang="la">supra</i>. But all rights -commonly known as <em>fundamental</em> do not work as limitations of the -power of Congress to govern Territories or “outlying possessions”; -see Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, 182 U. S., 244 (1901). Until this decision -these <em>fundamental</em> rights were construed as <em>limitations</em> of the power of -Congress in its government of Territories; see Callan <abbr xml:lang="la" lang="la">v.</abbr> Wilson, 127 -U. S., 540 (1888). Thompson <abbr xml:lang="la" lang="la">v.</abbr> Utah, 170 U. S., 343 (1898).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_345" href="#FNanchor_345" class="fnanchor">345</a> Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, <i xml:lang="la" lang="la">supra</i>, and supporting cases.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_346" href="#FNanchor_346" class="fnanchor">346</a> Barron <abbr xml:lang="la" lang="la">v.</abbr> Baltimore, 7 Peters, 243 (1833).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_347" href="#FNanchor_347" class="fnanchor">347</a> Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_348" href="#FNanchor_348" class="fnanchor">348</a> <abbr xml:lang="la" lang="la">Idem.</abbr> In Brown <abbr xml:lang="la" lang="la">v.</abbr> Walker, 161 U. S., 591 (1896), (<abbr xml:lang="la" lang="la">i. e.</abbr>, five -years before the decision in Downes <abbr xml:lang="la" lang="la">v.</abbr> 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.”</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_349" href="#FNanchor_349" class="fnanchor">349</a> The dissenting opinions in Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell should be read; -powerful as they are, they are <em>not</em> the opinion of the Court and <em>do not -declare what the law is</em>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_350" href="#FNanchor_350" class="fnanchor">350</a> Cohens <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 6 Wheaton, 414 (1821).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_351" href="#FNanchor_351" class="fnanchor">351</a> 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 <abbr xml:lang="la" lang="la">v.</abbr> Utah, 170 U. S., 343 (1898). Rasmussen <abbr xml:lang="la" lang="la">v.</abbr> United -States, 197 U. S., 516 (1905); but over territory <em>not so incorporated</em>, -see Hawaii <abbr xml:lang="la" lang="la">v.</abbr> Mankichi, 190 U. S., 197 (1903); Dorr <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_352" href="#FNanchor_352" class="fnanchor">352</a> So throughout <cite>The Federalist</cite>, and notably in Nos. xliv., xlv., li.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_353" href="#FNanchor_353" class="fnanchor">353</a> But note the Sixteenth Amendment.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_354" href="#FNanchor_354" class="fnanchor">354</a> First Inaugural. <cite>Works</cite> (Century Ed.), ii., 7.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_355" href="#FNanchor_355" class="fnanchor">355</a> Art. ii., 1: 2; Amendment XII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_356" href="#FNanchor_356" class="fnanchor">356</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_357" href="#FNanchor_357" class="fnanchor">357</a> Art. ii., 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_358" href="#FNanchor_358" class="fnanchor">358</a> <abbr xml:lang="la" lang="la">Id.</abbr> 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_359" href="#FNanchor_359" class="fnanchor">359</a> Cincinnati, Wilmington, etc., R. R. Co. <abbr xml:lang="la" lang="la">v.</abbr> Commissioners, 1 -Ohio St., 88; and see a full discussion of the issue in Field <abbr xml:lang="la" lang="la">v.</abbr> Clark, -143 U. S., 649 (1892). -</p> -<p> -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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_360" href="#FNanchor_360" class="fnanchor">360</a> Art. i., 2: 5; 3: 6. The subject is discussed in Chapters VII and -VIII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_361" href="#FNanchor_361" class="fnanchor">361</a> Art. i., 8: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_362" href="#FNanchor_362" class="fnanchor">362</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_363" href="#FNanchor_363" class="fnanchor">363</a> Art. i., 8: 16.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_364" href="#FNanchor_364" class="fnanchor">364</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 9: 3. The limitation as to prohibition of the slave trade -was temporary. <abbr xml:lang="la" lang="la">Id.</abbr>, 9: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_365" href="#FNanchor_365" class="fnanchor">365</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 9: 5.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_366" href="#FNanchor_366" class="fnanchor">366</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 9: 6.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_367" href="#FNanchor_367" class="fnanchor">367</a> Art. i., 9: 8.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_368" href="#FNanchor_368" class="fnanchor">368</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 5: 4.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_369" href="#FNanchor_369" class="fnanchor">369</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 7: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_370" href="#FNanchor_370" class="fnanchor">370</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 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 <i xml:lang="la" lang="la">habeas corpus</i> is not a limitation of the -power of Congress, for Congress is the judge whether public safety -requires the suspension of the writ.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_371" href="#FNanchor_371" class="fnanchor">371</a> Art. iii., 3: 1, 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_372" href="#FNanchor_372" class="fnanchor">372</a> Art. iii., 3: 2; <abbr xml:lang="la" lang="la">Id.</abbr> i., 9: 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_373" href="#FNanchor_373" class="fnanchor">373</a> <abbr xml:lang="la" lang="la">Id.</abbr> iv., 3: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_374" href="#FNanchor_374" class="fnanchor">374</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 3: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_375" href="#FNanchor_375" class="fnanchor">375</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_376" href="#FNanchor_376" class="fnanchor">376</a> The history of these Amendments in the author’s <cite>Constitutional -History of the United States</cite>, ii., 199–263.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_377" href="#FNanchor_377" class="fnanchor">377</a> First Amendment.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_378" href="#FNanchor_378" class="fnanchor">378</a> Amendments II., III., IV., V.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_379" href="#FNanchor_379" class="fnanchor">379</a> See the Ninth Amendment.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_380" href="#FNanchor_380" class="fnanchor">380</a> It will be noticed that this Amendment is not a limitation of -the States; it applies to the United States.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_381" href="#FNanchor_381" class="fnanchor">381</a> This is brought out by Marshall in Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 -Cranch, 137,—the corner-stone of many later decisions.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_382" href="#FNanchor_382" class="fnanchor">382</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_383" href="#FNanchor_383" class="fnanchor">383</a> 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 <abbr xml:lang="la" lang="la">v.</abbr> Sinkler, 179 U. S., 58; <i xml:lang="la" lang="la">Ex parte</i> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_384" href="#FNanchor_384" class="fnanchor">384</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 8: 17.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_385" href="#FNanchor_385" class="fnanchor">385</a> No. lxii. (The authorship, strictly speaking, is uncertain, being -assigned “to Hamilton <em>or</em> Madison.”)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_386" href="#FNanchor_386" class="fnanchor">386</a> Art. i., 10: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_387" href="#FNanchor_387" class="fnanchor">387</a> Art. i., 10: 2, 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_388" href="#FNanchor_388" class="fnanchor">388</a> <abbr xml:lang="la" lang="la">Id.</abbr> ii., 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_389" href="#FNanchor_389" class="fnanchor">389</a> <abbr xml:lang="la" lang="la">Id.</abbr> iii., 2: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_390" href="#FNanchor_390" class="fnanchor">390</a> Amendment XI.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_391" href="#FNanchor_391" class="fnanchor">391</a> Amendment XIII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_392" href="#FNanchor_392" class="fnanchor">392</a> Amendment XIV.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_393" href="#FNanchor_393" class="fnanchor">393</a> <abbr xml:lang="la" lang="la">Id.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_394" href="#FNanchor_394" class="fnanchor">394</a> Art. i., 2: 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_395" href="#FNanchor_395" class="fnanchor">395</a> <abbr xml:lang="la" lang="la">Id.</abbr> v.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_396" href="#FNanchor_396" class="fnanchor">396</a> <abbr xml:lang="la" lang="la">Id.</abbr> i., 2: 4. Amendment XVII., 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_397" href="#FNanchor_397" class="fnanchor">397</a> Art. iv., 1: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_398" href="#FNanchor_398" class="fnanchor">398</a> Amendment XII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_399" href="#FNanchor_399" class="fnanchor">399</a> Art. ii., 2: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_400" href="#FNanchor_400" class="fnanchor">400</a> <abbr xml:lang="la" lang="la">Id.</abbr> iv., 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_401" href="#FNanchor_401" class="fnanchor">401</a> <abbr xml:lang="la" lang="la">Id.</abbr>, 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.”</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_402" href="#FNanchor_402" class="fnanchor">402</a> Art. v.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_403" href="#FNanchor_403" class="fnanchor">403</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_404" href="#FNanchor_404" class="fnanchor">404</a> Art. vi., 2, 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_405" href="#FNanchor_405" class="fnanchor">405</a> Tenth Amendment.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_406" href="#FNanchor_406" class="fnanchor">406</a> Ninth Amendment.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_407" href="#FNanchor_407" class="fnanchor">407</a> The first quotation is from Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, 182 U. S., 244 -(1901); the second, from Gibbons <abbr xml:lang="la" lang="la">v.</abbr> 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. <em>Take care to put proper restrictions upon them</em>, but at the same -time leave what properly belongs to the field of legislation to the -Legislature of the future. <em>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.</em>” 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.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_408" href="#FNanchor_408" class="fnanchor">408</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_409" href="#FNanchor_409" class="fnanchor">409</a> Strictly executive functions are not within the jurisdiction of -courts of law. See the discussion in Chapter VII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_410" href="#FNanchor_410" class="fnanchor">410</a> Marbury <abbr xml:lang="la" lang="la">v.</abbr> Madison, 1 Cranch, 137 (1803).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_411" href="#FNanchor_411" class="fnanchor">411</a> Art. vi., 2, 3.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_412" href="#FNanchor_412" class="fnanchor">412</a> Chicago, etc., Ry. Co. <abbr xml:lang="la" lang="la">v.</abbr> Wellman, 143 U. S., 339 (1892); Frees <abbr xml:lang="la" lang="la">v.</abbr> -Ford, 6 New York, 176 (1852); Commonwealth <abbr xml:lang="la" lang="la">v.</abbr> McCloskey, 2 -Rawle (Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_413" href="#FNanchor_413" class="fnanchor">413</a> McCulloch <abbr xml:lang="la" lang="la">v.</abbr> Maryland, 4 Wheaton, 421 (1819).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_414" href="#FNanchor_414" class="fnanchor">414</a> <abbr xml:lang="la" lang="la">Idem.</abbr>, 423.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_415" href="#FNanchor_415" class="fnanchor">415</a> No. lxxxiv.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_416" href="#FNanchor_416" class="fnanchor">416</a> <cite>Pennsylvania and the Federal Constitution</cite>, 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_417" href="#FNanchor_417" class="fnanchor">417</a> Ogden <abbr xml:lang="la" lang="la">v.</abbr> Saunders, 12 Wheaton, 332 (1827); Martin <abbr xml:lang="la" lang="la">v.</abbr> Hunter’s -Lessee, 1 Wheaton, 304 (1816); United States <abbr xml:lang="la" lang="la">v.</abbr> Aaron Burr, Cotton’s -<cite>Constitutional Opinions of John Marshall</cite>, 1.100; Sturgis <abbr xml:lang="la" lang="la">v.</abbr> -Crowningshield, 4 Wheaton, 122 (1819); Cohens <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 6 Wheaton, -264 (1821); Cooley, <cite>Constitutional Limitations</cite>, 6th Edition, 204.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_418" href="#FNanchor_418" class="fnanchor">418</a> Norton <abbr xml:lang="la" lang="la">v.</abbr> Shelby County, 118 U. S., 425.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_419" href="#FNanchor_419" class="fnanchor">419</a> The relation of the judiciary to ministerial officers has already -been examined; see Chapters <a href="#CHAPTER_VII">VII</a> and <a href="#CHAPTER_VIII">VIII</a>. But see in this connection, -the Secretary <abbr xml:lang="la" lang="la">v.</abbr> McGarrahan, 9 Wallace, 298; United States -<abbr xml:lang="la" lang="la">v.</abbr> Black, 128 U. S., 40; United States <abbr xml:lang="la" lang="la">v.</abbr> Windom, 137 U. S., 636; -United States <abbr xml:lang="la" lang="la">v.</abbr> Blaine, 139 U. S., 306; State <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Stone, 120 -Missouri, 428.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_420" href="#FNanchor_420" class="fnanchor">420</a> Pennsylvania, 1873, Art. iv. §16. This provision does not empower -the Governor to cut down an item, but in practice, it is so -construed.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_421" href="#FNanchor_421" class="fnanchor">421</a> 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 <i><a href="#CHAPTER_X">The Law of Limitations</a></i> discusses executive, legislative, -and judiciary and the principles of government by which it acts. <em>The -entire subject of American constitutional law must be viewed as a whole.</em> -See Pollock <abbr xml:lang="la" lang="la">v.</abbr> Farmers’ Loan and Trust Co., 158 U. S., 601 (1895); -Field <abbr xml:lang="la" lang="la">v.</abbr> Clark, 143 U. S., 649 (1892). Also <cite>The Federalist</cite>, Nos. -xliv.-lvi.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_422" href="#FNanchor_422" class="fnanchor">422</a> Art. ii., 2: 2.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_423" href="#FNanchor_423" class="fnanchor">423</a> American Insurance Company <abbr xml:lang="la" lang="la">v.</abbr> Canter, 1 Peters, 511.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_424" href="#FNanchor_424" class="fnanchor">424</a> Amendments IX., X.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_425" href="#FNanchor_425" class="fnanchor">425</a> 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).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_426" href="#FNanchor_426" class="fnanchor">426</a> Reynolds <abbr xml:lang="la" lang="la">v.</abbr> United States, 98 U. S., 145 (1878).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_427" href="#FNanchor_427" class="fnanchor">427</a> Davis <abbr xml:lang="la" lang="la">v.</abbr> Beason, 133 U. S., 333.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_428" href="#FNanchor_428" class="fnanchor">428</a> Cooley, <cite>Principles of Constitutional Law</cite>, 3d Edition, 226. As to -“Readings from the Bible” in public schools, <i>see</i> Pfeiffer <abbr xml:lang="la" lang="la">v.</abbr> Board of -Education, 77 N. W. Reporter, 250 (1898); State <abbr xml:lang="la" lang="la">ex rel.</abbr> Weiss <abbr xml:lang="la" lang="la">v.</abbr> -District Board, 76 Wisconsin, 177 (1890).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_429" href="#FNanchor_429" class="fnanchor">429</a> People <abbr xml:lang="la" lang="la">v.</abbr> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_430" href="#FNanchor_430" class="fnanchor">430</a> The winning of these and other fundamental rights is largely the -subject of English constitutional history.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_431" href="#FNanchor_431" class="fnanchor">431</a> So expressed in many State constitutions, as Pennsylvania, 1873, -i., 7.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_432" href="#FNanchor_432" class="fnanchor">432</a> A right fully established at the trial of the Seven Bishops, 1688.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_433" href="#FNanchor_433" class="fnanchor">433</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Cruikshank, 92 U. S., 542 (1875).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_434" href="#FNanchor_434" class="fnanchor">434</a> West <abbr xml:lang="la" lang="la">v.</abbr> Cabell, 153 U. S., 78; Weeks <abbr xml:lang="la" lang="la">v.</abbr> U. S., 232 U. S., 383; -<i xml:lang="la" lang="la">Ex parte</i> Milligan, 4 Wallace, 2; U. S. <abbr xml:lang="la" lang="la">v.</abbr> Louisville & Nashville R.R. -Co., 236 U. S., 318; U. S. <abbr xml:lang="la" lang="la">v.</abbr> Boyd, 116 U. S., 616 (the leading case), -and Cotting <abbr xml:lang="la" lang="la">v.</abbr> Kansas City Stock Yards Co., 183 U. S., 79 (1901).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_435" href="#FNanchor_435" class="fnanchor">435</a> Paul <abbr xml:lang="la" lang="la">v.</abbr> Virginia, 8 Wallace, 168 (1808); Blake <abbr xml:lang="la" lang="la">v.</abbr> McClung, 172 -U. S., 239 (1898); Lockner <abbr xml:lang="la" lang="la">v.</abbr> New York, 198 U. S., 45 (1905).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_436" href="#FNanchor_436" class="fnanchor">436</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_437" href="#FNanchor_437" class="fnanchor">437</a> Corfield <abbr xml:lang="la" lang="la">v.</abbr> Coryell, 4 Washington C. C., 371; Slaughter House -Cases 16 Wallace, 36.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_438" href="#FNanchor_438" class="fnanchor">438</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_439" href="#FNanchor_439" class="fnanchor">439</a> 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).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_440" href="#FNanchor_440" class="fnanchor">440</a> Downes <abbr xml:lang="la" lang="la">v.</abbr> Bidwell, 182 U. S., 244 (1901).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_441" href="#FNanchor_441" class="fnanchor">441</a> Pfeiffer <abbr xml:lang="la" lang="la">v.</abbr> Board of Education of the City of Detroit, 77 N. W. -Rep., 250 (1898).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_442" href="#FNanchor_442" class="fnanchor">442</a> Reynolds <abbr xml:lang="la" lang="la">v.</abbr> United States, 89 U. S., 145 (1878).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_443" href="#FNanchor_443" class="fnanchor">443</a> Boyd <abbr xml:lang="la" lang="la">v.</abbr> United States, 116 U. S., 616 (1886). (Important -historical data given in this case.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_444" href="#FNanchor_444" class="fnanchor">444</a> Robertson <abbr xml:lang="la" lang="la">v.</abbr> Baldwin, 165 U. S., 275 (1897).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_445" href="#FNanchor_445" class="fnanchor">445</a> Cooley, <cite>Constitutional Limitations</cite>, 353; <i xml:lang="la" lang="la">Ex parte</i> Wall, 107 -U. S., 265 (1883). Murray’s Lessee <abbr xml:lang="la" lang="la">v.</abbr> The Hoboken Land and -Improvement Company, 18 Howard, 272 (1855), considered the -leading case.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_446" href="#FNanchor_446" class="fnanchor">446</a> Hurtado <abbr xml:lang="la" lang="la">v.</abbr> California, 110 U. S., 516 (1884).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_447" href="#FNanchor_447" class="fnanchor">447</a> Yick Wo <abbr xml:lang="la" lang="la">v.</abbr> Hopkins (San Francisco Laundry Cases), 118 U. S., -356 (1886).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_448" href="#FNanchor_448" class="fnanchor">448</a> Pembina Mining Company <abbr xml:lang="la" lang="la">v.</abbr> Pennsylvania, 125 U. S., 181 -(1888). Barbier <abbr xml:lang="la" lang="la">v.</abbr> Connolly, 113 U. S., 27 (1885). Holden <abbr xml:lang="la" lang="la">v.</abbr> -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 <abbr xml:lang="la" lang="la">v.</abbr> -State, 155 Illinois, 98 (1895).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_449" href="#FNanchor_449" class="fnanchor">449</a> Dent <abbr xml:lang="la" lang="la">v.</abbr> West Virginia, 129 U. S., 114 (1889). And cases cited.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_450" href="#FNanchor_450" class="fnanchor">450</a> Barbier <abbr xml:lang="la" lang="la">v.</abbr> Connolly, <i xml:lang="la" lang="la">supra</i>. Mugler <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> New York, 143 U. S., 517 -(1892), sustaining Munn <abbr xml:lang="la" lang="la">v.</abbr> Illinois, with strong dissenting opinions; -Spring Valley Water Works <abbr xml:lang="la" lang="la">v.</abbr> Schottler, 110 U. S., 347 (1884) sustaining -Munn <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> 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 <i xml:lang="la" lang="la">per -contra</i> was “the right of the individual to liberty of person and -freedom of contract.”</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_451" href="#FNanchor_451" class="fnanchor">451</a> Capital Traction Company <abbr xml:lang="la" lang="la">v.</abbr> Hof, 174 U. S., 1 (1899). Many -cases cited and the history of trial by jury given.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_452" href="#FNanchor_452" class="fnanchor">452</a> Mr. Justice Matthews in Yick Wo <abbr xml:lang="la" lang="la">v.</abbr> Hopkins, 118 U. S., 356 -(1886).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_453" href="#FNanchor_453" class="fnanchor">453</a> Amendment XIV., July 28, 1868. It will be noticed here that -the word “territory” is not used.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_454" href="#FNanchor_454" class="fnanchor">454</a> Slaughter House Cases, 16 Wallace, 36 (1872).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_455" href="#FNanchor_455" class="fnanchor">455</a> Amendment XIV.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_456" href="#FNanchor_456" class="fnanchor">456</a> Art. iv., 2: 1.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_457" href="#FNanchor_457" class="fnanchor">457</a> See p. 150.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_458" href="#FNanchor_458" class="fnanchor">458</a> Canfield <abbr xml:lang="la" lang="la">v.</abbr> Coryell, 4 Washington, C. C., 371, 380; Paul <abbr xml:lang="la" lang="la">v.</abbr> -Virginia, 8 Wallace, 180, and see pp. <a href="#Page_191">191–211</a> of the present volume.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_459" href="#FNanchor_459" class="fnanchor">459</a> Slaughter House Cases, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_460" href="#FNanchor_460" class="fnanchor">460</a> Crandall <abbr xml:lang="la" lang="la">v.</abbr> Nevada, 6 Wallace, 36 (1867).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_461" href="#FNanchor_461" class="fnanchor">461</a> Slaughter House Cases, <i xml:lang="la" lang="la">supra</i>. (Some additional rights are -secured citizens of the United States by Amendment XIV., §2; and -by Amendments XIII. and XV.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_462" href="#FNanchor_462" class="fnanchor">462</a> Minor <abbr xml:lang="la" lang="la">v.</abbr> Happersett, 21 Wallace, 162 (1874).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_463" href="#FNanchor_463" class="fnanchor">463</a> Art. iv., 4.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_464" href="#FNanchor_464" class="fnanchor">464</a> Minor <abbr xml:lang="la" lang="la">v.</abbr> Happersett, <i xml:lang="la" lang="la">supra</i>. (But see <i xml:lang="la" lang="la">Ex parte</i> Yarbrough, -110 U. S., 651.)</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_465" href="#FNanchor_465" class="fnanchor">465</a> 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 <cite>Charters and Constitutions</cite>, 7 vols., -U. S. Government Printing Office, 1909; and a detailed account of -these early qualifications (1776–1850) in the author’s <cite>Constitutional -History of the American People</cite>, i., ch. iii.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_466" href="#FNanchor_466" class="fnanchor">466</a> Art. i., 2: 1; Amendment XVII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_467" href="#FNanchor_467" class="fnanchor">467</a> <i xml:lang="la" lang="la">Ex parte</i> Yarbrough, 110 U. S., 651, 653; Wiley <abbr xml:lang="la" lang="la">v.</abbr> Sinkler, 179 -U. S., 58 (1900).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_468" href="#FNanchor_468" class="fnanchor">468</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Cruikshank, 92 U. S., 542 (1875).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_469" href="#FNanchor_469" class="fnanchor">469</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_470" href="#FNanchor_470" class="fnanchor">470</a> Civil Rights Cases, 109 U. S., 3 (1883).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_471" href="#FNanchor_471" class="fnanchor">471</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_472" href="#FNanchor_472" class="fnanchor">472</a> <i xml:lang="la" lang="la">Ex parte</i>, Siebold, 100 U. S., 371 (1879).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_473" href="#FNanchor_473" class="fnanchor">473</a> Strauder <abbr xml:lang="la" lang="la">v.</abbr> West Virginia, 100 U. S., 303 (1879).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_474" href="#FNanchor_474" class="fnanchor">474</a> Civil Rights Cases, 109 U. S., 3 (1883).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_475" href="#FNanchor_475" class="fnanchor">475</a> 14 Statutes at Large, 27, Ch. 31; Enforcement Act, May 31, -1870, 16 Statutes at Large, 140, Ch. 114.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_476" href="#FNanchor_476" class="fnanchor">476</a> Civil Rights Cases, <i xml:lang="la" lang="la">supra</i>.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_477" href="#FNanchor_477" class="fnanchor">477</a> That is, violating Amendments VI. and XIV.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_478" href="#FNanchor_478" class="fnanchor">478</a> Hurtado <abbr xml:lang="la" lang="la">v.</abbr> California, 110 U. S., 516 (1884).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_479" href="#FNanchor_479" class="fnanchor">479</a> “The trial by jury in civil cases guaranteed by the Seventh -Amendment (Walker <abbr xml:lang="la" lang="la">v.</abbr> Sauvinet, 92 U. S., 90) and the right to bear -arms guaranteed by the Second Amendment (Presser <abbr xml:lang="la" lang="la">v.</abbr> 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 <abbr xml:lang="la" lang="la">v.</abbr> California, 110 U. S., 516) and with -respect to the right to be confronted with witnesses, contained in the -Sixth Amendment (West <abbr xml:lang="la" lang="la">v.</abbr> Louisiana, 194 U. S., 258). In Maxwell -<abbr xml:lang="la" lang="la">v.</abbr> 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 <a href="#ARTICLE_V">Amendment V</a>.’) is not a -privilege or immunity of national citizenship guaranteed by this -clause (‘the first clause’) of the <a href="#ARTICLE_XIV">Fourteenth Amendment</a> against -abridgment by the States.” Twining <abbr xml:lang="la" lang="la">v.</abbr> State of New Jersey, 211 -U. S., 78 (1908).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_480" href="#FNanchor_480" class="fnanchor">480</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Wong Kim Ark, 169 U. S., 649 (1898).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_481" href="#FNanchor_481" class="fnanchor">481</a> Art. i., 8: 4.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_482" href="#FNanchor_482" class="fnanchor">482</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Villato, 2 Dallas, 373; Nishimura Ekin <abbr xml:lang="la" lang="la">v.</abbr> U. S., -142 U. S., 651; Luria <abbr xml:lang="la" lang="la">v.</abbr> U. S., 231 U. S., 9.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_483" href="#FNanchor_483" class="fnanchor">483</a> <i xml:lang="la" lang="la">Ex parte</i> Griffiths, 118 Indiana, 83 (1889), citing many cases, -(<i xml:lang="la" lang="la">inter alia</i>) Hayburn’s Case, 2 Dallas, 409, n.; United States <abbr xml:lang="la" lang="la">v.</abbr> -Ferrera, 13 Howard, 40, n.; United States <abbr xml:lang="la" lang="la">ex rel.</abbr> <abbr xml:lang="la" lang="la">v.</abbr> Duell, 172 U. S., -576 (1898), also to be consulted.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_484" href="#FNanchor_484" class="fnanchor">484</a> United States <abbr xml:lang="la" lang="la">v.</abbr> Rodgers, 150 U. S., 249 (1893).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_485" href="#FNanchor_485" class="fnanchor">485</a> Guinn and Beal <abbr xml:lang="la" lang="la">v.</abbr> United States, 238 U. S., 347 (1915).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_486" href="#FNanchor_486" class="fnanchor">486</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_487" href="#FNanchor_487" class="fnanchor">487</a> <abbr xml:lang="la" lang="la">Idem.</abbr> and citing <i xml:lang="la" lang="la">Ex parte</i> Yarbrough 110 U. S., 651 (already -considered in the present Chapter) and Neal <abbr xml:lang="la" lang="la">v.</abbr> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_488" href="#FNanchor_488" class="fnanchor">488</a> Calder <abbr xml:lang="la" lang="la">v.</abbr> Bull, 3 Dallas, 386 (1798); Kring <abbr xml:lang="la" lang="la">v.</abbr> Missouri, 107 U. S., -221 (1882); Thompson <abbr xml:lang="la" lang="la">v.</abbr> Utah, 170 U. S., 343 (1898). All the State -constitutions forbid <i xml:lang="la" lang="la">ex post facto</i> laws. -</p> -<p> -The right secured to the citizen by the constitutional inhibition -of <i xml:lang="la" lang="la">ex post facto</i> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_489" href="#FNanchor_489" class="fnanchor">489</a> Hollinger <abbr xml:lang="la" lang="la">v.</abbr> Davis, 146 U. S., 314 (1892).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_490" href="#FNanchor_490" class="fnanchor">490</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_491" href="#FNanchor_491" class="fnanchor">491</a> Boyd <abbr xml:lang="la" lang="la">v.</abbr> United States, 116 U. S., 616 (1886). The right -covers “persons, houses, papers, and effects.” Art. iv.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_492" href="#FNanchor_492" class="fnanchor">492</a> Harris <abbr xml:lang="la" lang="la">v.</abbr> People, 128 Illinois, 585 (1889).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_493" href="#FNanchor_493" class="fnanchor">493</a> Art. v., Act of February 11, 1893, Statutes at Large, 443; Brown -<abbr xml:lang="la" lang="la">v.</abbr> Walker, 161 U. S., 591 (1896).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_494" href="#FNanchor_494" class="fnanchor">494</a> Amendment VI. Mattox <abbr xml:lang="la" lang="la">v.</abbr> United States, 156 U. S., 237 -(1895).</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_495" href="#FNanchor_495" class="fnanchor">495</a> <abbr xml:lang="la" lang="la">Idem.</abbr></p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_496" href="#FNanchor_496" class="fnanchor">496</a> In the original the clauses are not numbered, nor is there any -title to the document. It begins, “<span class="smcap">We the People</span>.”</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_497" href="#FNanchor_497" class="fnanchor">497</a> See Amendments XIII., XIV., XV., XVI.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_498" href="#FNanchor_498" class="fnanchor">498</a> See Amendment XVII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_499" href="#FNanchor_499" class="fnanchor">499</a> See Amendment XII.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_500" href="#FNanchor_500" class="fnanchor">500</a> See Amendment XI.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_501" href="#FNanchor_501" class="fnanchor">501</a> See Amendments XIII., XIV., XV.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_502" href="#FNanchor_502" class="fnanchor">502</a> 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.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_503" href="#FNanchor_503" class="fnanchor">503</a> New Jersey withdrew her consent to the ratification on March -27, 1868.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_504" href="#FNanchor_504" class="fnanchor">504</a> Oregon withdrew her consent to the ratification October 15, 1868.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_505" href="#FNanchor_505" class="fnanchor">505</a> Ohio withdrew her consent to the ratification in January, 1868.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_506" href="#FNanchor_506" class="fnanchor">506</a> North Carolina, South Carolina, Georgia, and Virginia had -previously rejected the amendment.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_507" href="#FNanchor_507" class="fnanchor">507</a> New York withdrew her consent to the ratification January 5, 1870.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_508" href="#FNanchor_508" class="fnanchor">508</a> Ohio had previously rejected the amendment May 4, 1869.</p></div> - -<div class="footnote"> - -<p class="fn3"><a id="Footnote_509" href="#FNanchor_509" class="fnanchor">509</a> New Jersey had previously rejected the amendment.</p></div> -</div></div> - -<div class="chapter"><div class="transnote"> -<h2 id="Transcribers_Notes">Transcriber’s Notes</h2> - -<p>Punctuation and spelling were made consistent when a predominant -preference was found in this book; otherwise they were not changed.</p> - -<p>Simple typographical errors were corrected; occasional unbalanced -quotation marks corrected.</p> - -<p>Ambiguous hyphens at the ends of lines were retained; occurrences -of inconsistent hyphenation have not been changed.</p> - -<p>Index not checked for proper alphabetization or correct page references.</p> - -<p>Page <a href="#Page_1">1</a>: Duplicate book title removed by Transcriber.</p> - -<p>Page <a href="#Page_148">148</a>: “and another nation” was printed as “notion”; -changed here.</p> -</div></div> - - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of The Essentials of American -Constitutional Law, by Francis Newton Thorpe - -*** END OF THIS PROJECT GUTENBERG EBOOK ESSENTIALS OF AMERICAN CONSTITUTIONAL LAW *** - -***** This file should be named 55452-h.htm or 55452-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/5/4/5/55452/ - -Produced by Sonya Schermann, Charlie Howard, and the Online -Distributed Proofreading Team at http://www.pgdp.net (This -file was produced from images generously made available -by The Internet Archive) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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