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serve the subordination thus declared, the judiciary is empowered to decide, in the last resort, when either government has transcended its constitutional limits, and to declare such proceeding void. It has indeed been claimed, that this power may be exercised by any one of the States, with respect to those acts of the federal government, which that State deems unconstitutional. This is one of the doctrines of what is denominated nullification; and its existence would seem to indicate that the constitution had not been sufficiently explicit on a matter so important. But, on the contrary, its language is as clear and decisive as it could be made. "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 under their authority." (a) This language confers the whole power of deciding constitutional questions upon the judiciary; and of course nothing is left to be exercised by any other tribunal. It is, then, the high function of the federal judiciary, to arrest the arm of either branch of government, when it would overstep its prescribed limits, and encroach upon the precincts of the other. And in its subordinate sphere the State judiciary exercises a similar power. Some have complained of this, as a departure from the democratic theory, in allowing a less number of men to annul the acts of a greater number. But experience has thus far shown the arrangement to be wise and salutary. It is indeed one of the noblest features in our system. One cannot easily conceive of a more sublime exercise of power, than that by which a few men, through the mere force of reason, without soldiers, and without tumult, pomp, or parade, but calmly, noiselessly, and fearlessly, proceed to set aside the acts of either government, because repugnant to the constitution. (b)

§ 28. The States are not completely Sovereign. (c) It follows from

acts of both when performed are, in proper cases, subject to its cognizance. State of Mississippi v. Johnson, 4 Wallace, 497.

(a) This clause, as originally reported to the convention, did not include the constitution or treaties. Mad. Pap. 1238. These were afterwards added by a unanimous vote; and the reason assigned was, that there might be no doubt as to the power of the judiciary to expound the constitution in all cases of a judicial nature. Id. 1438.

(b) The courts will not declare an act unconstitutional, unless it is clearly and evidently a violation of the constitution. In all cases of doubt, the doubt must be resolved in favor of the legislative power. Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; Rich v. Flanders, 39 N. H. 304; Baltimore v. The State, 15 Md. 376; Tyler v. The People, 8 Mich. 320; Santo v. The State, 2 Clarke, 165; Morrison v. Springer, 15 Iowa, 304; State v. Hitchcock, 1 Kansas, 178; Allen v. Silvers, 22 Ind. 491. When different parts of a statute are independent of each other, one part may be declared void for unconstitutionality, without affecting the others. Commonwealth v. Clapp, 5 Gray, 97; State v. Commissioners of Perry County, 5 Ohio St. 497; Mobile & Ohio R. R. Co. v. State, 29 Ala. 573; Nelson v. The People, 33 Ill. 390. But in determining the construction of the constitutional portion, the unconstitutional portions, though inoperative, are to be looked at. State ex rel. v. Dombaugh, 20 Ohio St. 167. But a court cannot declare a law void unless it conflicts with some provision of the constitution. People v. Mahaney, 13 Mich. 481; Walker, Solicitor, v. Cincinnati,

20 U. S. 18.

(c) The relations of the States may, perhaps, be expressed in the following propositions:

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what has now been said, that the States are not supreme or sovereign, in the strict sense of these words, since there is a power above them. The particulars in which they have parted with their sovereignty, include all the powers exclusively vested in the federal government, and all the powers prohibited by it to the States. These will be fully enumerated hereafter. For the present, it is sufficient to say, in general terms, that the States have ceased to be sovereign in relation to all national objects, but retain a qualified or partial sovereignty, extending to all internal objects. If there could have existed any doubt on this point, as the constitution was originally framed, such doubt was removed by the tenth amendment, which declares" that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This language, while it makes the people the source of all power, both in the federal and State governments, expressly subtracts from the sovereignty of the States, all the "powers delegated to the United States," and "prohibited to the States; but leaves the States sovereign in regard to their "reserved powers." Again, the States are not altogether foreign with respect to each other. This is evident from the views already presented, since they are parts of the same nation. But I will here state Several of the more important particulars in which they have ceased to be foreign, by the express provision of the constitution. First, no State can refuse to give "full faith and credit to the public acts, records, and judicial proceedings" of every other State. The importance of this provision will be more fully explained in the sequel. It must be observed, however, that this provision is not intended to interfere with the great international doctrine, that no State is bound to recognize the laws of another State, affecting either persons or property within the former. No laws can have, as a matter of right, an extra-territorial operation. If, therefore, we give effect to the laws of other States or nations, it is on the principle of comity, and this principle prevails to a very wide extent in modern times. I have only room here to say, that with this general doctrine, the above provision does not interfere. The States are still left to give effect or not to the laws of their sister States, on the principles of comity, established by their respective legislatures, or received as common law. Secondly, the "citizens of each State are entitled to all the privileges and immunities of citizens" in every other State. In other words, citizenship is made a national affair, as it should be, and the States can make no discrimination in this respect, between their own people and those of other States.

1. Each State is solely and entirely sovereign within its territorial limits, except only so far as it is made subordinate to the federal government.

2. No law of any other State can have force within its limits, except by its adoption, from comity or otherwise.

3. No rule of comity can in any case require it to allow privileges to citizens of other States, which it denies to its own citizens; the demands of comity being entirely satisfied, when we make others equal to ourselves.

Thirdly, no State can refuse to deliver up fugitives from justice or from service escaping from other States, whereas between foreign nations, this is a question of comity. Fourthly, the States cannot enter into any treaty, alliance, or consideration, or adopt any commercial regulations, with respect to each other. Fifthly, the States cannot at pleasure secede from the Union. This is nowhere expressly declared in the federal constitution, but it results necessarily from the fact that the obligations it creates are without reservation as to time. The Union was, no doubt, intended to be perpetual. The preamble declares one of the objects to be, "to secure the blessings of liberty to ourselves and our posterity." Provision is also made to prevent the States from ceasing to be represented in Congress, should they have such a desire. Besides, if a State could withdraw at pleasure, the Union, instead of being "a more perfect union," as the preamble declares, would be no stronger than a rope of sand. No doubt the ultimate right of revolution exists in every State, for nothing can take it away. And if one or more States were strong enough to stand out against the rest, they might thus make an effectual secession. But they could not do it in virtue of any reserved right under the constitution, unless they amounted to three-fourths of the States. Then they might amend, and of course destroy, the constitution. But in no constitutional way can a minority separate themselves from the Union. There is much looseness both of opinion and expression upon this subject. The Declaration of Independence seems to place the right of revolution upon its true foundation; namely, the failure of government to accomplish the end of its institution, that is, the welfare and happiness of the people. And whenever a majority of the people are satisfied that they can better their condition by changing their government, they have the right as well as the power to do so. Any less number would seem to want both. So long, therefore, as a majority of the people of the United States are contented with the existing government, the minority must acquiesce.

§ 29. Classification of Constitutional Provisions. Having thus referred to the most prominent points in our federal relations, I will now indicate the plan to be pursued in our future inquiries. Since all the States stand in the same position with respect to the federal government, and have the same internal objects to promote, it follows that there must be a strong similarity in their constitutions. Of course one will serve as a sample of the whole, and for reasons before given, I shall select the constitution of Ohio, and explain its provisions in connection with those of the federal constitution. The provisions of any constitution naturally class themselves under four general heads; namely, first, those which relate to the organization of the legislative department; secondly, those which relate to the organization of the executive department; thirdly, those which relate to the organization of the judicial department; and fourthly, those which define and limit the powers

delegated and the rights reserved. Of these four classes of provisions, the first three are so nearly alike in the federal and State constitutions, that they can be expressed in almost the same language. These, therefore, will be examined in immediate connection. But with respect to the fourth class of provisions, namely, those which limit delegated power, there is a very important difference, which I will here explain. The federal government being designed, as we have seen, for national objects only, and these being comparatively limited in number, it was not impracticable to enumerate specifically, the substantive or primary powers requisite for their accomplishment. These are called enumerated powers. But it was not so easy to foresee, nor so convenient to enumerate, all the secondary or subordinate powers, which might be required as means for executing those primary powers; they are conferred generally and without enumeration, and are called incidental powers. As these two classes include all the powers conferred on the federal government, there is of course an implied prohibition of all other powers. In other words, the theory of the federal constitution is, that the grant of powers is special, and the prohibition general. But out of abundant caution, that nothing connected with so momentous a subject might be left in doubt, some special prohibitions are inserted, which form another class, entitled powers prohibited to the federal government. Again, in order to prevent those conflicts with the State governments which might otherwise result from the federal scheme, it was necessary to prohibit the exercise by them of various powers to which they were originally competent, and thus we have another class, entitled powers prohibited by the federal constitution to the States. Accordingly, in the federal constitution we have for consideration these four classes of powers; namely, enumerated powers; incidental powers; powers prohibited to the federal government; and powers prohibited to the States. But the State constitutions are much more simple. In framing them, the design was to confer powers sufficient for all the details of municipal arrangement. Of course it was impossible to enumerate, or even to provide, all the powers requisite for objects so various; and accordingly no specific enumeration was attempted. Power is conferred, in the first place, in general terms; and then specific prohibitions are inserted, with respect to the powers intended to be withheld. In other words, the theory of the State constitutions is, that the grant of power is general, and the prohibitions special; being the exact reverse of the theory of the federal constitution. In the federal constitution, all powers are to be considered as prohibited which are not expressly or incidentally conferred; and in the State constitutions, all powers are to be considered as conferred which are not expressly or incidentally prohibited. (a) From all which, it follows, that, in

(a) State v. Gutierez, 15 La. An. 192; Commonwealth v. Drewry, 15 Grattan, 1; Bushnell r. Beloit, 10 Wis. 225; The People v. Smith, 17 Cal. 553; Page v. Allen, 58 Penn. St. 338; Lewis' Appeal, 67 Penn. St. 153; People v. Flagg, 46 N. Y. 401; Baker

order to ascertain the limitations of State power, we must add to the prohibitions of the federal constitution, those of the particular State constitutions; and the aggregate of these two sets of prohibitions will constitute the limitations of the power of the State in question. It must be observed, however, that there are several powers, which, either from their nature, or from the language of the federal constitution, may be exercised concurrently by the federal and State governments; and hence we have another class of powers entitled concurrent powers. Such then are the classes of provisions which constitute the fourth head before mentioned; namely, those which define and limit the powers delegated and the rights reserved. In discussing these, however, it will sometimes be convenient to treat them all in connection, and sometimes to treat them separately, according to their subject-matter.

LECTURE VI.

LEGISLATIVE DEPARTMENT. (a)

§ 30. Division into two Branches. In pursuance of the plan suggested in the preceding lecture, I shall, in this lecture, discuss

v. Cincinnati, 11 Ohio St. 534, 543; Cooley's Const. Lim. 164, 173. And see Sedgwick on Statutory and Constitutional Law for a summary of the cases on this subject. It will be found there that there are many weighty dicta holding the doctrine in the text, that a State legislature possesses all legislative powers, except where limited by the constitution, though Sedgwick himself seems inclined to doubt the doctrine as stated in the text.

(a) The history of the convention in relation to this department, is as follows: The first resolution adopted was, that there should be a supreme legislative, judiciary, and executive. Mad. Pap. 749. It was next resolved, that the legislature should consist of two branches. At first, Pennsylvania alone objected to this, out of regard to Dr. Franklin's opinion; but the final vote stood 7 to 3-id. 753, 925. It was next resolved, that the representatives should be elected by the people. This was warmly opposed by several who were in favor of an election by the State legislatures, but was carried by a vote of 5 to 2-id. 757. A proposition, that senators should be elected by the representatives out of persons nominated by the State legislatures, was negatived, 3 to 7-id. 759. It was then resolved, that each branch should have the power to originate laws, and that the legislative power should extend to all cases to which the State legislatures were individually incompetent, and to a negative of State laws contravening the national laws-id. 759-761. A proposition, authorizing an exertion of the force of the whole against a delinquent State, did not pass to a vote-id. 761. A proposition, that the State legislatures should elect the representatives, was negatived after warm debate, 3 to 8-id. 800-8. The mode of electing senators again came up; and a proposition, that the executive should appoint them out of persons nominated by the State legislatures, did not pass to a vote; that the people should elect them, was negatived 1 to 10; and that they should be elected by the State legislatures, was carried unanimously-id. 812-21. A proposition, that Congress should have a negative on all State laws was negatived, 3 to 7-id. 821-8. Thus far there had not been a great diversity of opinion. But now the rule of suffrage in Congress came up. In the continental congress, and that of the confederation, and in this convention, the States had an equal vote. Should it be so under the new constitution? The parties were nearly equally divided, and the debate was warm and

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