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of a power by the United States without reference to any authority specifically given, but simply upon the ground that it is an "inherent sovereign right."

Turning now from the consideration of the powers of the Federal Government to an examination of the limitations imposed by the Constitution upon its authority, we find that these, like its powers, are of two kinds, express and implied. The implied limitations include, first, all those which arise from the fact that the Government of the United States is one of enumerated powers, that is to say, one that may not exercise any power not expressly or impliedly given it; and secondly, those which arise from the fact that the Constitution looks to a preservation of the several States in the autonomy that is allotted them, and that, therefore, the Federal Government may not unnecessarily interfere with the free operation of state governments either by way of imposing upon them the performance of federal duties, or by unduly restraining their freedom of action.1

The express limitations upon the powers of the Federal Government are in part limitations upon the manner of exercise of powers expressly given, as, for example, that direct taxes shall be apportioned among the several States according to their respective populations, that naturalization, bankruptcy, and tariff laws shall be uniform throughout the United States, etc.; and in part absolute prohibitions upon the exercise, in any manner, of the powers specified. These absolute prohibitions are to be found, in the main, in Section 9 of Article I and in the first eight Amendments.

1 This point will be more fully discussed in the next chapter.

From the very first it has been construed by the Supreme Court that the prohibitions contained in these Amendments apply only to the United States. This was first authoritatively declared by Marshall in the case of Barron v. Baltimore (7 Pet., 243), decided in 1833. In his opinion rendered in that case, Marshall said: "The plaintiff . . . insists that the [Fifth] Amendment being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a State as well as that of the United States. . . . The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution 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 the 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 governments created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments framed by different persons and for different persons.

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The correctness of this decision has never been questioned either by the federal or state courts. However, as we shall notice in a later chapter, the argu

ment has been made, but not accepted as valid by the Supreme Court, that that 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," should be so construed as to render the provisions of the first eight Amendments operative upon the States.

In regard to these first eight Amendments it may be said that it was only an excess of caution that required their incorporation in the Federal Constitution. Inasmuch as the United States was to have only the powers expressly or impliedly given it, it would have been, in the absence of such express limitations, without the authority to exercise the powers that these amendments enumerate.1

1 Indeed, in the eyes of some, of Hamilton at least, there were affirmative reasons why these limitations should not be expressly stated. In the "Federalist,” No. 84, after showing that Bills of Rights were "stipulations between Kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince," whereas in constitutions "the people in reality surrender nothing," Hamilton proceeds: "I go further and affirm, that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would be even dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? Men disposed to usurp . . . might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against the liberty of the

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Having described, in general terms, the manner in which the powers and limitations of the General Government are determined, little needs to be said regarding the powers and limitations of the States. The States have, of course, as specifically provided in the Tenth Amendment, all powers except those delegated -expressly or impliedly-to the United States, and those prohibited to them by the Constitution. The powers expressly prohibited to the States are those mentioned in Section 10 of Article I, and in the Thirteenth, Fourteenth, and Fifteenth Amendments. The implied prohibitions are those arising from the supremacy of national laws. This subject will be further touched upon in the next chapter which will deal with the mutual independence of the federal and state governments.

press afforded a clear implication that a right to prescribe proper regulations concerning it, was intended to be vested in the National Government."

CHAPTER IX

COERCION OF STATE ACTION

THE right of the United States Government to prevent, by force if necessary, the individual States from in any way interfering with the execution of federal laws within their borders has already been discussed. The somewhat different question as to the powers possessed by the General Government to compel, in a positive way, the performance by the States of duties laid upon them by the federal Constitution has now to be considered.

Generally speaking, it is a matter for the United States or for an individual State itself to determine whether or not it will exercise a power that is granted or reserved to it. Thus, for instance, Congress has never fully exercised the legislative powers granted it, and, on the other hand, no one of the States has ever employed all the powers reserved to it. Indeed, without exception, all the States have by their own constitutions removed from the competence of their legislatures many powers that, so far as the Federal Constitution is concerned, they might properly employ. But when from rights we turn to duties the question is a different one.

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