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ment of the United States is one of delegated powers, and that of a State of residuary original sovereignty.

$ 86. The supremacy of the Constitution, statutes and treaties of the United States.-Within the sphere of its jurisdiction the Government of the United States is supreme and that of the States must yield to it. This is conceded to the Federal Government by the second clause of the Sixth Article of the Constitution: “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; anything in the Constitution or laws of any State, to the contrary notwithstanding."

The most famous proclamation of the supremacy of the United States Constitution is found in McCulloch y. the State of Maryland et al., where the Supreme Court again and again asserted this supremacy of the National Government, and of its Constitution, statutes and treaties : “If any one proposition could command the universal assent of mankind we might expect that it would be this: That the Government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State might be willing to control its operations, no State is willing to allow others to control them." "The Government of the United States, then, though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form the supreme law of the land, ‘anything in the constitution or laws of any State to the contrary notwithstanding.'” “This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them.” “The people of the United States have seen fit to divide sovereignty and to establish a complex system; they have conferred certain powers on the State governments, and certain other powers on the National Government. As it was easy to foresee that questions would arise between these governments thus constituted it became a great moment to determine upon what principles these questions should be decided and who should decide them. The Constitution therefore declared that the Constitution itself, and the laws passed in pursuance of its proceedings, should be the supreme law of the land, and should control all State legislation and State Constitutions which may be incompatible therewith, and it confides to this court the ultimate power of deciding all questions arising under the Constitution and laws of the United States, then, made in pursuance of the Constitution are to be the supreme law of the land, anything in the laws of any State to the contrary notwithstanding."

* 4 Wheaton, 316.

McCulloch v. Maryland ranks as the greatest of the many great decisions of Chief Justice Marshall. The principles here enumerated survived their author and received the approval of Marshall's successor on the bench.

In Ableman v. Booth, Chief Justice Taney said: “The Constitution was not framed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained there would be but little danger from abroad, and to accomplish this purpose it was felt, by the statesmen who framed the Constitution and by the people who adopted it, that it was necessary that many of the rights of sovereignty, which the States then possessed, should be ceded to the general government; and that, in the sphere of action assigned to it, it should be supreme and strong enough to execute its own laws by its own tribunals without interpretation from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects from which the Government was established.”

This supremacy of the Constitution, laws and treaties, is not merely a theoretical one, but also a real one, which the general Government can enforce by whatever means are necessary.

In re Neagle10 the Supreme Court said: “We hold it to be

10

21 Howard, 306.

• 135 U. S. 1.

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 which belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions in all places does not derogate from the power

of the State to execute its laws at the same time, except where both cannot be enacted at the same time. In that case the words of the Constitution itself show which is to yield.”

This supremacy of the laws of the United States applies even in the case of laws passed by the States in the exercise of their police powers.

“Generally it may be said, in respect to laws of this character, that though resting upon the public power of the State, they must yield whenever Congress, in the exercise of the powers granted to it, legislates upon the precise subject matter, for that power, like all other reserved powers of the State, is subordinate to those in terms conferred by the Constitution upon

the Nation."11 In concluding its opinion in this case the court said: “It is unnecessary to pursue this discussion further. The State statute and the national law operate upon the same subject matter and prescribe different rules concerning it. The national law is unquestionably one within the competency of Congress to enact under the power given to regulate commerce between the States. The State statute must, therefore, give away."

As a supplement to this declaration of the supremacy of the United States Constitution, and the laws and treaties made under it, it is further provided, that:

“The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial offices, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution."12

11

Gulf, Colorado & Santa Fe Railway Co. v. Hefley, 158 U. S. 98.

12 United

States Constitution, Article VI., Clause 3.

$ 87. Distribution of legislative powers between the government of the United States and the governments of the States.

- The greater part of the controversies relative to the respective powers of the governments of the United States and of the States which have arisen out of the attempted exercise of some particular legislative power by the latter legislative powers, in relation to their position under the Constitution of the United States, may be divided into five classes.

First. Those powers denied by the Constitution both to the United States and to the several States. The powers thus denied to both are the passage of any bill of attainder or ex post facto law, the granting of any title of nobility, or the depriving any person of life, liberty or property without due process of law. Most of the restrictions contained in the last three amendments also restrain both.

Second. Those powers which the Constitution neither grants to Congress nor prohibits to the States; here are included those legislative powers which constitute the main part of the State's legislative jurisdiction. Congress has no more right to exercise a power not granted to it, either expressly or by implication, than it has to exercise one expressly denied to it.

Third. The third class consists of those powers denied by the Constitution to the United States and not prohibited to the States. The particular powers herein included will be considered under the head of powers denied to the Legislative Department, and in Chapter X, on the Bill of Rights. The legislative powers included in this class are generally denied to the State Legislatures by the State Constitutions.

Fourth. Those powers which the Constitution grants to Congress and probibits to the States. Here are included most of the great powers of the Federal Government—the authority over foreign affairs, the power of peace or war, the power to lay duties on imports, to coin money and regulate its value.

There is comparatively slight possibility for controversy in respect to powers which are included in any of these four classes of powers, the difficulties have mainly arisen with relation to the fifth and remaining class.

Fifth. In this class are included those powers which the Constitution grants to the United States Government, without denying them to the States, either expressly or by implication. Here generally both governments may legislate, but if the laws of any State conflict with those of the United States then the latter prevail.

An illustration of this class is to be found in the subject of bankruptcy laws. The power to pass such laws is given to Congress, but it is not denied to the States. The Supreme Court has decided that with certain restrictions bankruptcy laws may be passed by the States, but such laws are superseded by any Federal laws which may be passed on the subject. The extent of the right of the several States to pass bankruptcy laws is fully discussed by the Supreme Court, in the cases of Sturges v. Crownshield 13 and Ogden v. Sanders.14 The substance of these decisions is to uphold the rights of the several States to pass bankruptcy laws, subject to the following restrictions :

First. Under Section 10 of Article 1 of the Constitution, which forbids any State to pass any law impairing the obligation of contracts, no bankruptcy law passed by any State can affect any debt contracted before the time of the passage of such act. This, however, does not apply to laws merely changing the procedure in bankruptcy without affecting the substantive right.

Second. The extra territorial force of such laws is greatly limited. In general they cannot affect debts owed to nonresidents of the State.

Third. Laws passed by the several States on the subject of bankruptcy are subservient to any laws which Congress may pass on the subject. In the past Congress has left this field of the law almost entirely to the State Legislatures. Previous to the existing law on this subject, passed in 1898, only three national bankruptcy laws had been passed. The first two acts, those of 1802 and 1840, were very short lived. This third act, passed in 1867, was in force for eleven years. The act of 1898 as amended in 1902 is still in force.

A few legislative powers stand in an anomalous position, being denied to the States and neither denied nor granted to the

18 4 Wheaton, 122, decided 1819.

14 12 Wheaton, 213, decided 1827.

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