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we have recognized as a necessity lying in the very nature of the thing. It is partly due, too, to the fact that the constitution was not, to the people who gave it, an end in itself, but a means to the end, and this end seemed to demand that, in regard to certain things, the establishment of an inviolable principle should be avoided.
$ 18. THE LIMITS OF AUTHORITY. This has especial reference to the dividing line between the authority of the federal powers and of the states. The all-pervading fundamental thought of the constitution is that certain interests are common to the whole people of the Unior, and that therefore, in regard to these, political powers have been intrusted to a central government, and that other interests and needs must be left to the care of the states, because they vary according to locality. But the people have, in addition, rights, interests, and needs which are both national and local in their nature, and, in regard to these, both the federal and state governments must have duties and powers corresponding to these duties. It by no means follows from the delegation of a power to the federal government that the same power does not belong to the states. In every single case, the question must be put whether the delegation of authority to the one involves its withdrawal from the other. If this question cannot be answered affirmatively, one must further inquire what relation prevails in general between the concurrent powers of the national government and the states. When the constitution expressly withdraws something from the states, or gives it exclusively to the national government, of course no difficulty can arise. Even when neither of these contingencies happens, the exclusive power of the national government must be recognized, if the nature of things forbids the subjection of the citizens in regard to the question at issue to two different and independent legislative wills. Again, some powers are delegated to the federal government without any obligation to use them. Thus congress has a right to pass a general bankrupt law, but it need not do so. It has repeatedly done so, and repeatedly repealed the law at short intervals. In such a case, there is nothing to prevent the states from exercising a similar power, as long as the federal government does not exercise it, but as soon as the latter does so, the state laws will ipso facto become of no validity unless the nature of the matter permits two different legislative wills to act upon it at the same time. Here, in distinction from the case last mentioned, the exclusiveness of the federal authority does not depend upon the nature of the right in itself, but it comes into force for the first time by the use of the right. Finally, it often happens, as for example, in regard to the right of taxation, that it is either convenient or even necessary that the individual should be subject at the same time to different legislative wills. But the fact that this may happen without conflict between these wills does not exclude the possibility of conflict. If conflict comes, the state laws must yield to the national laws, but they yield to them only so far as they are irreconcilable with them. In principle, the authority of the states suffers no wrong, but they cannot exercise it in a particular way because the national government, in regard to the method of exercising the same power, has so far the preference that the accomplishment of its will cannot be interfered with, and of course not actually hindered. If a conflict of rights cannot happen, yet, from the manifold nature of these legal possibilities, conflicts over rights may easily arise. And even when the respective spheres of the federal and of the state governments do not intersect each other in this way, yet, of course, a
question may arise between them under every provision of the constitution, as to whether each of them has acted within its constitutional powers. The framers of the constitution could not have overlooked this, and hence it is a priori evident that they must have taken care to bring about a legal decision of all such questions. If this were not so, the corner-stone of their whole building would have been wanting. But if this is so, then no ground is left for seeking such remedies as nullification, which can be based upon not a single word in the constitution. It is not by the spinning of a web of logic out of unproved and unprovable assertions that we can find what the constitutional law upon this point must be. The constitution shows what the constitutional law is.
§ 19. CONFLICTS OF AUTHORITY. If the rule that words are to be understood in their natural sense is followed, all difficulties which arise from the doctrine of state sovereignty in regard to the decision of unavoidable conflicts of authority disappear. The constitution is not a compact between the federal government and the states, and inasmuch as they do not stand in the relation of parties to each other or of parts of one another, there is no need of a common arbiter superior to them to decide questions between them. The non-existence of such an arbiter, therefore, does not imply that either of the alleged parties must ultimately decide for itself. The people of the United States and the population of the states are the same individuals. Federal government and state governments are their creatures, and have the same object — the welfare of the people. The co-ordination of the federal government and of the states, so far as the affairs of the commonwealth are concerned, is an absurdity just as it is an absurdity to claim that the federal government, the creature of the constitution, is one of the parties to the constitutional compact. It is an “agent," as the champions of the doctrine of state sovereignty, in opposition to their own theory of “parties,” call it, but it is not, as they affirm, an agent of the states, but an agent of the people of the United States, and their exclusive agency for all their affairs as a commonwealth. It is as little master as it is servant of the states; but, as the general delegate of the master of the commonwealth for the commonwealth, it alone has authority within the sphere allotted to it. The Union is through the constitution a legal state. If the constituent members of a state had each for itself the power of ultimate decision as to what is law, this would be a negation in principle of the idea of a legal state. The commonwealth has given to the federal government its own sphere, and, therefore, the parts of the commonwealth cannot be judges as to whether it has overstepped its limits. The opinion of the commonwealth can find lawful expression only in the manner provided by the constitution, i. e., through the constitutional organs of the commonwealth in the discharge of their constitutional functions.
On the other hand, it has been claimed that the federal government could break through the paper barriers of the constitution at every point and make itself absolute master, if it alone must decide upon the constitutionality of its acts. In theory, this conclusion cannot be questioned, but in practice it is, in substance, an utterly false conclusion. The constitution avoids this danger in a practical way by the organization of that whole apparatus
Story, I., p. 256, in his discussion of this question, recalls the fact that even under the articles of confederation, according to an unanimous vote of congress, the states were not authorized to put their own construction upon treaties, because treaties were made not by them but by congress.
of government which the Americans ordinarily call “a system of checks and balances.” The law-making power of congress is under the direct control of the conditional veto right of the president. The members of both houses of congress are directly or indirectly elected by the people, and not at long intervals. The people are therefore always able to prevent an unconstitutional misuse of the law-making power by intrusting it to persons who will, with greater faith, fulfill their first duty of keeping the constitution in view, in their law-making, as the supreme and absolutely binding law of the land. Intentional and preconcerted usurpations are therefore possible only with the actual sanction of the people from the very beginning. This, however, does not give a sufficient protection against systematic oppression of minorities, and still less does it ensure to individuals that their constitutional rights shall not be interfered with and trenched upon in good faith through unconstitutional laws or acts of the federal powers. But the framers of the constitution intended to transform the old Union, not only into a state capable of life, but into such a state founded upon law, and they therefore could not forget to endow it expressly with the majesty of law, and that in such a way that the law should be as fully protected under all circumstances as it can be in the nature of man and of human institutions.
The third article relates to the “judicial power," i. e., to the judicial majesty of the United States, creates the supreme court of the United States as the highest organ of this power, authorizes congress to create other federal courts, and declares that “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," that is, under