Читать книгу The Essentials of American Constitutional Law - Francis Newton Thorpe - Страница 5

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1. The supreme law of the land is the Constitution, and acts of Congress and treaties made under its authority. By this supreme law the judges in every State are bound, “anything in the constitution or laws of any State to the contrary notwithstanding.” All legislative, executive, and judicial officers both of the United States and of the several States are bound by oath or affirmation to support the Constitution, and in our actual government, every administrative official, State or national, is bound in like manner.1 Aliens becoming American citizens by naturalization,—by which they disavow allegiance to any other sovereignty,—solemnly bind themselves, by oath or affirmation, to support the Constitution. Every citizen is impliedly under oath to support the Constitution.

2. Such supremacy of the Constitution is essential to American sovereignty. The people of the United States ordained and established this supreme law. They are sovereign. The oath or affirmation to support it is the formal and sovereign promise of fidelity to that sovereign, to any sovereign, or quasi-sovereign,—for example, to England, France, or a State in the American Union. The supreme law of a sovereignty,—its “constitution,” may be written, like ours, or partly unwritten, as the British constitution. The essential fact is of the supremacy of the law because of the sovereignty of the law-giver.

3. The laws of the United States are made by Congress and the President, or by Congress alone over his veto.2 The laws of a State are made by its legislature and governor, or by the legislature alone over his veto; but Congress, the President, State legislature and governors are only agents of their sovereign: they possess derivative, not original, powers; they represent sovereignty. The American sovereign is “We the People” of the United States, and for many purposes, “We the People” of the respective States. All government in America is representative government. The sovereign makes laws through its agents or representatives. No other method is possible in a sovereignty conceived and operating as ours. Whether the law thus formulated be a constitution,—national or State,—an act of Congress or of Assembly, it is an expression, on the principle of agency, of the will of the sovereign. The Convention that frames a constitution is an agent of sovereignty; the Congress or State Legislature that enacts a law is an agent of that sovereignty, and that sovereignty prescribes through its agents the method of ratifying and administering that law. Through other agents, e. g., the judiciary, that sovereignty interprets constitutions and laws.3 Legislative, executive, judicial, and administrative officials constitute the governmental group, the public servants to whom, for a term, the sovereign delegates some of its powers. The members of this group are agents of the sovereign and are answerable to that sovereign as is the agent to his principal.

4. Madison, in The Federalist, states the whole case: A republic is

a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people, and that they held their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character.4

5. The supreme law of the land represents the will of the people of the United States for purposes of government. The authority of that law is derived wholly from the people. They may change or amend it at any time. They prescribe the procedure for such change or amendment.5 Through this supreme law the entire public business is carried on. The constitution of Massachusetts sets forth the essential fact:

All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.6

The distinction between original and derivative powers made by the constitution of Massachusetts is true of the supreme law of the United States.

6. The quality of supremacy involves and implies sovereignty. Sovereignty is indefinable; is not, strictly speaking, comprehensible. There is therefore a difference between sovereignty and government. Sovereignty ordains and establishes a form of government. The form varies among different peoples and at different times. The Constitution declares that “The United States guarantees to every State in this Union a republican form of government.”7 This form, in America, is the creation, that is, the creature, of the sovereign, the people. The essential matter here is of powers and relations, and is made clear by Chief Justice Marshall: The government of the United States proceeds directly from the people; is ordained and established in their name for definite purposes declared in the Preamble to the Constitution, and the assent of the States in their sovereign capacity is implied in calling the Convention of 1787, which framed the Constitution, and in submitting that instrument to the people. The people were at perfect liberty to accept or to reject it, and their act was final. It required not the affirmance and could not be negatived by the State governments. When thus adopted, the Constitution was of complete obligation, and bound the State sovereignties.8 But had not the people of America, in 1787, already surrendered all their powers to the State sovereignties and had nothing more to give? The question whether they may resume and modify the powers granted to their government cannot be raised in this country. The people always possess that power and since 1787 they have exercised it in making seventeen amendments to the Constitution. The legitimacy of the general government might be doubted had it been created by the States, for the States, as governments, are creations of the people, and possess only derivative powers. “The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” The States were competent to form a league, such as was the Confederation of 1781,

but when “in order to form a more perfect Union” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union is emphatically and truly a government of the people. In form and substance it emanates from them. Its powers are granted by them and are to be exercised directly on them, and for their benefit. This government is acknowledged by all to be one of enumerated powers. But the question respecting the extent of the powers actually granted is perpetually recurring, and will probably continue to arise as long as our system shall exist. The government of the Union, though limited in its powers, is supreme within its sphere of action.9

This supremacy results from the nature of the government.

It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have in express terms decided it by saying, this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made under its authority, shall be the supreme law of the land, and by requiring executive, legislative, judicial (and administrative) officers to take the oath of fidelity to it.10

7. The question of sovereignty arises here and, as commonly stated, of national sovereignty and of State sovereignty. The equal vote allowed each State by the Constitution,11 “is at once a recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.”12 Are there two sovereignties in America?

The sovereignty of a State [declares Marshall], extends to everything which exists by its authority, or is introduced by its permission; but does not extend to these means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States. These powers are not given by the people of a single State, but by the people of the United States to a government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them.13

8. The exercise of the taxing power illustrates the principle here involved. The power of taxation residing in a State measures the extent of sovereignty which the people of a single State possess, and can confer on its government.

We have a principle (here) [continues Marshall], which leaves the power of taxing the people and property of a State unimpaired; which leaves to a State the command of all its resources, and which places beyond its reach all these powers which are conferred by the people of the United States on the government of the Union, and all these means which are given for the purpose of carrying these powers into execution. We have a principle which is safe for the States and safe for the Union.... The people of the United States did not design to make their government dependent on the States. The government of the Union possesses general powers of taxation.... The people of all the States and the States themselves are represented in Congress, and by their representatives exercise this power. When they tax the chartered institutions of the States, they tax their constituents and these taxes must be uniform.14 But when a State taxes the operations of the government of the United States, it acts upon institutions created not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others, as well as themselves; for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole, between the laws of a government declared to be supreme, and these of a government which, when in opposition to those laws, is not supreme.... In America, the powers of sovereignty are divided between the government of the Union and those of the States. They are each sovereign with respect to the objects committed to the other.15

Plainly the essential matter here is one of functions. Neither the government of the United States nor that of a State is sovereign, for each possesses only delegated powers. But the powers delegated to the two governments are not for all purposes the same, or of equal extent. The two governments have different jurisdictions. Distinctively federal functions are not State functions, as, for example, the distinctively Federal functions of coining money, making treaties, and declaring war.16 On the other hand, distinctively State functions are the exercise of the police power of the State,17 the control of intrastate commerce, the power of extradition between States,18 the validity in a State of the public acts, records, and judicial proceedings of another State19 and the right of citizens of each State to all privileges and immunities of citizens in the several States.20

9. The question of the relative sovereignty of the United States and that of a State is one of jurisdiction, and is determined by extent of powers delegated, not of original powers possessed. Delegated powers are expressed in constitutions and laws. Two governments exist in America: that of the Union and that of the respective States. The Constitution of the United States 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.21 The constitution of a State is made by the people of that State for themselves only. Sovereignty in America has declared the Constitution of the United States the supreme law of the land, thus formally relegating State constitutions and laws to inferior rank,—that is, to a position of powerlessness when in conflict with the supreme law. Thus when we speak of two “sovereignties,” or of “residuary sovereignty,” we really mean “two governments of delegated powers,”—that is, the State governments and the national government. When we speak of the two sovereignties, we do not mean sovereignty (which is by nature indivisible), but government (which is divisible), the creation of sovereignty and, unlike sovereignty, possesses only delegated powers.

10. For administrative purposes, or, stating the case in other words, for legal reasons and in harmony with precedents in law, the terms “sovereignty” and “residuary sovereignty” continue in use among lawyers, judges, political writers, and civil officials; but government is not, never was, and in such a country as ours, never can be sovereignty. American constitutional law is law made by authority of the sovereign people: the law of the United States is made by Congress, the authorized legislative agent of the people of the United States: the law of the State, is made by its Legislature, the authorized law-making agent of the people of the State. The same essential may be stated after the manner of Chief Justice Marshall as the law of the whole: the Nation; the law of the part, the State. Government is the child of sovereignty.

11. Because of the sovereignty of the people of the United States, and consequently, of the supremacy of the Constitution, several results follow:

Madison expresses one of these in The Federalist22:

The idea of a national government involves in it not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.

Marshall expresses other results,—

The general government, though limited as to its objects, is supreme with respect to these objects. This principle is a part of the Constitution. To this supreme government ample powers are confided. With the ample powers confided to this supreme government are connected many express and important limitations on the sovereignty of the States.23

Hamilton, commenting on the Constitution, declares that “the national and State systems are to be regarded as one whole.”24 And finally, although our supreme law does not contain the word “sovereign,” or “sovereignty,” it implies sovereignty. The crowning illustration of this principle of implied sovereignty grew out of the acquisition of Louisiana in 1803. President Jefferson could find no provision of the Constitution specifically empowering the United States to make the acquisition, or to incorporate the region into the United States. He therefore proposed amending the Constitution so as to authorize the purchase. The President’s doubts of the power of the United States to acquire Louisiana were weaker than his doubt of power to incorporate the province into the United States,—that is, to make a foreign province or provinces inhabited, by an alien people, partakers in an American Commonwealth. He consulted his Cabinet. Levi Lincoln, the Attorney-General, was of opinion that to share the privileges and immunities of the people of the United States with a foreign population required the consent of the people of the United States, and he suggested that if a treaty of cession were made, containing such agreements, it should be put in the form of a change of boundaries instead of a cession, so as to bring the territory within the United States. Albert Gallatin, Secretary of Treasury, replied that to him it appeared: (1) That the United States as a nation have an inherent right to acquire territory; (2) That whenever that acquisition is by treaty, the same constituted authorities in which the treaty-making power is vested have a constitutional right to sanction the acquisition; and (3) That whenever the territory has become acquired, Congress have the power either of admitting it into the Union as a new State, or of annexing it to a State, with the consent of that State, or of making regulations for the government of such territory.25 Thus, according to Gallatin, the United States, by its very nature, has the undoubted right to acquire, to hold, and to govern territory as a possession.26 Twenty-five years after the purchase of Louisiana, Chief Justice Marshall handed down the decision of the Supreme Court, that “the Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or treaty.”27 In this decision, Marshall reasons as did Gallatin that a nation is by its very nature, sovereign, and possesses the powers and functions of sovereignty. When the American nation, a sovereign, created a government of delegated powers, under the Constitution, it delegated to that government powers adequate to its purposes as a nation.28 The essential purpose of sovereignty is to continue sovereign. The word “sovereign” though not occurring in the Constitution is necessarily implied as a permanent quality or mark of the power that ordained and established the Constitution. Sovereignty cannot be delegated, but a supreme law, such as the Constitution, necessarily implies a sovereignty that has delegated the powers expressed or implied in the Constitution itself. In other words, the Constitution of the United States is the supreme law of the land because the people of the United States are a sovereign. Sovereignty alone has original powers; all others are delegated. Thus the Constitution itself 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.”29

12. American constitutional law is, therefore, the authoritative formulation, in constitutional, or statutory, or treaty form, of the will of the sovereign, the people of the United States. This formulation accords with the powers delegated by that sovereign. The expression of this delegation of powers in the conduct of the public business is government. Therefore in America, government is another word for the delegation of powers,—for limitations of authority. Sovereignty is unlimited; government is limited. The Constitution of the United States is the supreme law of the land because through it the people of the United States,—not the people of any particular State or group of States,—have delegated larger powers than have the people of any particular State through its constitution. The whole is greater than the part. “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.”30 The exercise of this original right is an exercise of sovereignty. The result of this exercise, in America, is the Constitution of the United States which, this sovereignty declares to be “the supreme law of the land.”31