state constitutions and all state laws. It can be altered only by the people, in manner to be hereafter mentioned. It is a comparatively short document, and consists of seven articles, subdivided into sections. Art. I. deals with the Federal legislature, its structure and powers, and imposes certain restrictions upon the states. Art. II. provides for the election of an executive head, the president; and assigns certain powers and duties to him. Art. III. treats of the judicial power, defining its range and the mode of its exercise. Arts. IV., V. and VI. contain certain miscellaneous provisions, including those which regulate the mode of amendment. Two alternative methods of proposing amendments and also two of passing them are recognized. They may be proposed either by a two-thirds vote in each house of Congress, or by a convention called by Congress on the application of the legislatures of two-thirds of the states. They may be passed either by the legislatures of three-fourths of the states, or by conventions in three-fourths of the states. Congress has in every instance preferred the method of itself proposing amendments and the method of submitting them to the state legislatures for ratification.
The provisions of the Constitution, which is later in date than the creation of the original states, and presupposes the existence and activity of those communities, include two sets of matters, which must be considered separately—(a) the Federal system, i.e. the relations of the national government to the states; and (b) the structure of the national government itself.
§ 15. In the determination and allotment of the rights Distribution of Powers between the Nation and the State. and powers of the national government on one side and of the states on the other, a determination which is the foundation of every federal system, the American Constitution proceeds upon these principles:—
1. No powers are expressly allotted to the states, because the states are contemplated as continuing to enjoy those pre-existing powers which they have by their own right, and not as devolved upon them by the nation.
2. The powers allotted to the national government are those, and those only, which are required for the purposes of the collective life of the nation, i.e. (a) powers which relate to its action in the international sphere; and (b) powers which can be exercised within the Union more efficiently and more to the benefit of the people by one central government than by a number of separate governments.
3. All powers which are not expressly allotted to the national government are left to the states, unless specially forbidden to be exercised by the latter, i.e. powers not specifically referred to remain with the states, and if the national government wishes to claim any particular power, it must show affirmatively that that power has been granted to it by the Constitution. [This principle has been followed in the Constitution of Australia, but not in that of Canada.]
The powers given to the national government may be described as those which subserve purposes of common national utility.[1] They are the following (see Const. art. I. § 8):—
To impose and collect taxes, which must be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate foreign and inter-state commerce;
To establish a uniform rule of naturalization and a uniform bankruptcy law;
To coin money and fix the standard of weights and measures;
To establish post offices and post roads;
To secure exclusive rights for limited time by granting patents and copyrights;
To constitute tribunals inferior to the Supreme Court;
To declare war, and regulate captures on and land water;
To raise and maintain an army and a navy;
To provide for calling out the militia for organizing and arming them, and for governing such part of them as may be in the actual service of the United States;
To exercise exclusive jurisdiction in the area selected for the seat of the national government and over spots acquired for military or naval purposes;
To make all laws necessary for carrying out the above powers (including laws punishing such offences as fall within Federal jurisdiction as being transgressions of Federal law);
To pass laws protecting citizens of the United States against unjust or discriminating legislation by any state (amendments xiii. and xiv.).
§ 16. The national government is, however, interdicted from using these powers in certain directions by the following prohibitions (art. Powers withheld from the National Government. I. § 9, and first ten amendments): It may not suspend the writ of habeas corpus (except in time of war or public danger) or pass a bill of attainder or an ex post facto law; give any state a commercial preference over another; grant any title of nobility; establish or prohibit any religion, or impose any religious test as a condition of holding office; abridge the freedom of speaking or writing, or of public meeting, or of bearing arms; try any person for certain offences except on the presentment of a grand jury, or otherwise than by a jury of his state and district; decide any common law action where the value in dispute exceeds $20 except by a jury.
Although prima facie all powers not given to the national government remain with the states, the latter are debarred from some powers. No state may (art I. § 10, and amendments xiii., xiv. and xv.) make any treaty or alliance; coin money or make anything, save gold and silver coin, a legal tender; pass any bill of attainder or ex post facto law, or law impairing the obligation of contracts; have any but a republican form of government; grant any title of nobility; maintain slavery; abridge the privileges of any citizen of the United States, or deny to him the right of voting on account of race, colour or previous condition of servitude; deprive any person of life, liberty or property without due process of law; deny to any person the equal protection of the laws.
There are also certain powers which, though not absolutely withdrawn from the states, can be exercised only with the consent of the national legislature, viz. those of laying duties on exports or imports, keeping troops or war-ships in time of peace, entering into agreements with another state or foreign power, engaging in war unless invaded. And it may be added that there are certain powers which, since they do not lie within the province of the national government, and have been refused to the states, are said to be “reserved to the people.” This expression means that it is only the people who can confer them and direct them to be exercised. Should the people wish to confer them, they would have to do so by way of amending the Constitution; and herein lies a remarkable difference between the American system on the one hand and those of some European countries on the other, which, although they have created rigid constitutions, do not expressly debar the legislature from using any and every power of government.
§ 17. The aim of those who framed the Constitution was to avoid friction between the state governments and the Relations of the National Government to the States. Federal government by rendering their respective spheres of action as separate and distinct as possible. They saw that the less contact the less danger of collision. Their wish was to keep the two mechanisms as independent of each other as was compatible with the still higher need of subordinating, for national purposes, the state to the central government.
Nevertheless there are, as was unavoidable, certain points of contact between the two, the chief of which are the following:—
The Constitution requires each state government to direct the choice of, and accredit to the seat of the national government, two senators and so many representatives as the state is (in respect of its population) entitled to send; to provide for the election, meeting and voting of presidential electors in each state, and to transmit their votes to the national capital; to organize and arm the militia forces of the state, which, when duly summoned by the national government for active service, are placed under the command of the president.
Besides these direct services imposed upon the states, each state is of course practically limited in its legislative and executive action by the power of the Federal judiciary (in the exercise of its function of interpreting the Constitution) to declare invalid laws passed or acts done inconsistent with the Federal Constitution, or with statutes passed by the Federal legislature within the scope of its authority under the Constitution.
So, too, when a subject, such as bankruptcy, is one on which a state may legislate in the absence of legislation by Congress, the state law is valid only so long as Congress does not legislate.
Finally, another point of contact exists in the right of a state to call upon the national government to protect it against invasion, or domestic violence. This right has been several
- ↑ As to the scheme and working of the Federal government in its relation to the states, see American Commonwealth, chs. xxvii.-xxx.
