several Governments of the States. Thus the government of the States remained the rule, and that of the Confederation became the exception.
But as it was foreseen that, in practice, questions might arise as to the exact limits of this exceptional authority, and that it would be dangerous to submit these questions to the decision of the ordinary courts of justice, established in the States by the States themselves, a high Federal court was created, which was destined, amongst other functions, to maintain the balance of power which had been established by the Constitution between the two rival Governments.
- See the Amendment to the Federal Constitution; Federalist,
No. 32. Story, p. 711. Kent's Commentaries, vol. i. p. 364.
It is to be observed, that whenever the exclusive right of regulating certain matters is not reserved to Congress by the Constitution, the States may take up the affair, until it is brought before the National Assembly. For instance, Congress has the right of making a general law on bankruptcy, which, however, it neglects to do. Each State is then at liberty to make a law for itself. This point, however, has been established by discussion in the law-courts, and may be said to belong more properly to jurisprudence.
- The action of this court is indirect, as we shall hereafter show.
- It is thus that the Federalist, No. 45, explains the division
of supremacy between the Union and the States. “The powers
delegated by the Constitution to the Federal Government are few
and defined. Those which are to remain in the State Governments
are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and
foreign commerce. The powers reserved to the several States
will extend to all the objects which, in the ordinary course of
affairs, concern the internal order and prosperity of the State.”
I shall often have occasion to quote the Federalist in this