Читать книгу The Essentials of American Constitutional Law - Francis Newton Thorpe - Страница 7

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25. The powers of Congress, whether expressed or implied, are powers incident to sovereignty, being essential to the existence of the government which sovereignty has created. The principle is laid down in The Federalist, that the government of the Union “must possess all the means and have a right to resort to all the methods of executing the powers with which it is intrusted.”60 The immediate comparison here is between the government of the United States and those of the States. The federal government must possess powers as adequate for its purposes as are the powers possessed and exercised by the particular States. The principle is laid down by Hamilton yet more explicitly:

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard for the public good and to the sense of the people.61

This principle applies to both American governments,—that of each State, and that of the United States. Each within its own jurisdiction is supreme. This means that the national government possesses powers adequate to the existence and efficient operation of such a government. With this principle in mind, the exercise, by Congress, of its powers becomes reasonably plain. The people of the United States are a sovereignty; they have ordained and established the Constitution of the United States. This Constitution is a plan of republican, that is of representative, government. The powers granted by this sovereignty to this government are adequate to the ends and purposes of this government. Whence follows all our constitutional law: for the constitutional law of the States cannot vary essentially from that of the United States. The principle here is stated by Chief Justice Marshall: “The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.”62

26. The powers of Congress are derived through this Constitution and are adequate to the legislative needs of the government thus created. Here again applies the principle as to proper legislative powers: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” If this principle be true (and it lies at the basis of government in America), it seems unnecessary that the Constitution should specify, or enumerate the powers of Congress. These which are enumerated may not be said to be in any logical order. Doubtless the qualities of sovereignty are equal qualities—each essential to the supreme end and purpose of sovereignty—which end and purpose is to be and to remain sovereignty.

27. But to Congress and to the State Legislatures powers are granted. Does the grant of powers to Congress extinguish the grant to the State Legislatures? Here, again, Hamilton states the principle:

An entire consolidation of the States into one complete sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the Convention (“of 1787”) aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather, this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.63

The implication of the extinguishment of the powers of the State Legislature by the powers of Congress can arise only where exercise of State authority is “absolutely and totally contradictory and repugnant to the power delegated to Congress.”64 Therefore “where the authority of the States is taken away by implication, they may continue to act until the United States exercise their power, because until such exercise there can be no incompatibility.”65 The principle here laid down is illustrated by laws fixing the standard of weights and measures; bankruptcies; counterfeiting the coin and securities of the United States; copyrights and patent rights. If Congress legislates on these subjects, such legislation excludes State legislation in conflict with it. In the absence of congressional and in the presence of State legislation, on these (and some other subjects falling in the same class) the respective State legislation is supreme within the jurisdiction of the State.66 Stated in a different way, this principle of American constitutional law would read,—the mere grant to the federal government of power over a subject does not necessarily extinguish State authority over the same subject. Thus the State has power by common law, or by statute, to fix a standard of weights and measures. The issue here is not one merely of authority but of relative authority. The exercise of authority by Congress is not, by that fact, prohibition of exercise of authority by a State. This exercise is radically different from that of legislation on coining money, making treaties, granting titles of nobility, issuing letters of marque and reprisal,—or any other subject over which Congress has exclusive, and a State no jurisdiction. Here the question is one of exclusive, or sole authority. Thus, State Legislatures have authority to pass bankrupt or insolvent laws, provided there is no act of Congress, on the subject, in force establishing a uniform system of bankruptcy conflicting with the State law, and, further, providing that the State law does not impair the obligation of contracts.67

28. But State insolvent laws apply to contracts within the State between one of its citizens and a citizen of another State, and they do not apply to contracts not made within the State. The principle here is one of jurisdiction: no State has authority outside its own jurisdiction. Therefore interstate matters are beyond State jurisdiction and are exclusively under the control of Congress. This principle is expressed judicially: “Insolvent laws of one State cannot discharge the contracts of citizens of other States because they have no extra-territorial operation.”68

29. Congress exercises any of its powers as an agent of its sovereign, the people of the United States. These powers, like those of the President, or of the federal courts, are expressed or implied; the government of the United States is “a national government with sovereign powers, legislative, executive, and judicial.”69 Because this government is a sovereign government it possesses the choice of means to make its sovereignty real. Hence it possesses power to pay the debts of the United States, to borrow money, to incorporate banks, to coin money, to make war, and to do whatever acts it considers necessary and proper, and in such manner as it sees fit,—all acts of sovereignty. It alone can determine what is a legal tender, what the value of coins, domestic or foreign (within its jurisdiction) and, in brief it can do all acts such “as accord with the usage of sovereign governments.” Thus the national currency may be coin or paper, as Congress shall regulate. Whatsoever Congress by legislation declares to be a legal tender in payment of debts between individuals or corporations is thereby a legal tender, because Congress is “the legislature of a sovereign nation” and is expressly empowered by the Constitution to enact laws of the kind.70 This power is commensurate with the jurisdiction of Congress in this matter,—a power which absolutely and totally excludes the power of the several States.

30. As a matter of constitutional law, it must be admitted that, granting the national sovereignty of the people of the United States, it must follow that the legislature of this sovereign nation would possess such power over currency and coinage. That is, the power would be implied if it were not expressed. It is the office or function of a supreme national government to legislate for national ends and purposes.71

But the principle of national sovereignty which operates in Congressional legislation on money, currency, coinage, and legal tenders, does not nullify the principle of contracts. A lawful contract between parties that calls for payment of a particular article with a particular article, be it silver coin, gold coin, national bank notes, treasury notes, reserve bank issues, or subsidiary coin, is satisfied only when executed in the terms of the contract. The obligation of the contract would be impaired if it were executed otherwise than as the contract itself sets forth.72

31. Congress is not under contract to coin money, to pay the debts of the United States, or to borrow money in any particular way. Duties, excises, and imports must be uniform throughout the United States, and this condition is a fundamental limitation. No limitation is placed by the Constitution on the power of Congress over the currency. This power is supreme. It is a power which, duly exercised, secures the existence of sovereignty itself.73

A function of sovereignty is performed in the issuing of a bill of credit, the sovereign power thus pledging its faith, and the thing issued is designed to circulate as money. The State, or Commonwealth, in the Union, is not a sovereign for this purpose, as the Constitution provides.74 So when a State incorporates a bank, which issues bills of credit, the act of the bank is not an act of sovereignty, and the State, though a stockholder in the bank, imparts none of its sovereignty to the bank. The bank as a corporation, not the State as an incorporator, is answerable for the obligations of the bank.75 To constitute a “bill of credit,” in the meaning of the Constitution, it must be issued by a State, on the faith of the State and be designed to circulate as money.76

32. Power to provide for the punishment of counterfeiting the securities and current coin of the United States is specially delegated to Congress,77 but it is not denied to the several States. The power to coin money belongs exclusively to Congress78 as a mark and necessary incident of sovereignty, but counterfeiting the coin constitutes an offense against both the State and the United States. The uttering of counterfeit coin is a cheat, and the State can protect its citizens against fraud by exercise of its police power. Such offenses fall strictly within State jurisdiction. Counterfeiting debases the coin, throws spurious and base metal, or false securities into circulation, and is an offense against that constitutional power which is exclusively authorized to create a currency for public uses. The offense is against the sovereignty of the nation, and, being a fraud, it is against the sovereignty of the State. In either case it imperils sovereignty.79

33. The power of Congress to establish post offices and post roads is not an exclusive power, for the States are not prohibited to legislate on the same subject. But Congress has unlimited power over it and may designate what may be included in and what may be excluded from the mails. This exercise is doubtless of the police power. It does not follow that congressional establishing and regulation of post offices and post roads mean that Congress has power to deal with crime or immorality within a State in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime and immorality. So a postal law of Congress excluding lottery tickets from the mail is not an abridgment of the freedom of the press. Congress, by reason of the nature of its functions, is empowered to determine what shall and what shall not be carried in the mails, and the right of freedom of speech does not give the right to injure the objects or to defeat the purposes which government is ordained and established to further and protect.80 But the State, in exercise of its police power, may undoubtedly protect its citizens from injury springing out of that intercourse known as the mail service so long as it is wholly intrastate,—that is, within its jurisdiction.

34. Copyrights and patent rights are privileges granted by Congress for a term of years and are strictly statutory—for the United States has no common law. The States may exercise their powers in like manner, subject to the essential condition that the Constitution is the supreme law of the land. Copyrights and patent rights are examples of rights which exist by act of Congress,81 but the right thus created does not annul the ordinary police power as put forth in the police regulations of a State. The person owning or controlling either copyright or patent right is not thereby empowered to defy the laws of a State as respecting the sale of the article in which or over which he has the exclusive right. The article itself may be adjudged injurious to the public and, therefore, by police regulation, forbidden to be sold or to be exposed for sale in the State. The patent right prevents others than the inventor from participating in the fruits of his invention, without his consent; but the exercise of the right must be in subordination to the police regulations of the State, otherwise, “a person might with as much propriety claim a right to commit murder with an instrument, because he held a patent for a new and useful invention.”82 It may be accepted as a principle that “patent laws do not interfere with the power of a State to pass laws for the protection and security of its citizens, in their persons and property, or in respect to matters of internal polity, although such laws may incidentally affect the profitable use or sale by a patentee of his inventions.”83

35. The power of Congress, expressly delegated to it, “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations,” is not exclusive. The States are not prohibited from legislating on the subject. Offenses committed within the jurisdiction of a State are punishable by State laws. Such offenses are punishable by common law. If there is no act of Congress covering the offense, then the United States has not assumed jurisdiction. But absence of a specific mention or definition of the offense does not invalidate a claim of jurisdiction when the result of the offense is piracy. Piracy is robbery committed within the jurisdiction of the admiralty,84 but an offense that effects piracy, though not technically robbery, is piracy.85 As piracy is an offence against the law of nations, and not strictly against domestic municipal law, it falls within the jurisdiction of the admiralty—a jurisdiction over which the judicial power of the United States is expressly extended by the Constitution.86 This jurisdiction is not exclusive as provided for by the Constitution. Practically, however, the States do not legislate on the subject, unless it be to provide for the execution of their police power over their own waters.

36. The “admiralty jurisdiction” of the United States is co-extensive with its authority over or on waters, fresh or salt, including the high seas, the Great Lakes, and rivers and streams commerce over which it has power to regulate. Thus this jurisdiction is over the American ship wherever it may be. “Offenses committed on vessels belonging to citizens of the United States, within their admiralty jurisdiction (‘that is within navigable waters’) though out of the territorial limits of the United States, may be judicially considered when the vessel and parties are brought within their territorial jurisdiction.”87

37. The war power is possessed by Congress exclusively,88 for the limitation of the States as to declaring war can be construed only as an exclusive delegation of this power to the United States. The exercise of this power is a sovereign act and may consist in a formal declaration of war, or a formal recognition or declaration of a state of war. War existing by such regulation, the President, as commander-in-chief of the army and navy, and of the militia of the several States when called into the actual service of the United States, is bound by his oath faithfully to execute his office—which is to execute the laws of the United States. It is for the President to determine how to execute his office; that is a political, not a judicial question. “He must determine what degree of force the crisis demands.” He must decide the character of the opposing forces, whether they are belligerents, or of some other character. He may close ports or declare a blockade of the enemy. He possesses the whole executive power of the United States. Ratification of his acts though ex post facto are constitutional,—fundamentally because sovereignty having vested the executive office in a President, and he having performed its duties to the best of his ability, refusal to consider his acts as constitutional would be repudiation by sovereignty of an act which had been done by its authority.89

38. The word “State” in the Constitution refers to a State of the Union.90 For while the Constitution was made, “ordained and established by the people of the United States for themselves,”91 it was made for the people of the United States in States. Thus it follows that over a domain not constituting a State, that is, over a domain consisting of a ceded district, or a territory, or an outlying possession, Congress has sole jurisdiction. Only the United States and the several States possess sovereignty. No State, or a member of the Union, has jurisdiction over the district and there is no other American government than Congress to exercise it. “Territory” like property by common law must have an owner; if it is self-owned and self-governed, it is sovereign; otherwise it is a subject or possession of sovereignty. It follows, as to American constitutional law, that subdivisions of States are wholly within State jurisdiction: Congress having no jurisdiction over counties or cities other than as, in a general way over matters, Congressional legislation affects counties and cities as parts of States throughout the United States.92 And unless a State has ceded its jurisdiction over a district within its borders, it has full authority to levy taxes, to execute its inspection and other police laws and regulations within that district. Thus Kansas ceded the Ft. Leavenworth Military Reservation to the United States in 1875, but the deed of cession granted no more than use of the land as a military post; the State, therefore, could levy and collect taxes within this area, having never parted with the sovereign right to do so.93 And any other powers or rights of the State, over this area, not explicitly granted to the United States by Kansas in the deed of cession remain intact in the State; its original jurisdiction as a State, save as explicitly modified by that deed, remains.

39. The power of Congress to govern territory, implied in the right to acquire it, and given to Congress in the Constitution,94 to whatever other limitation it may be subject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by Congressional action, a system of laws which shall include the right of trial by jury, and that the Constitution does not, without legislation, and of its own force, carry such right to territory so situated.95

The principle laid down by the Supreme Court recognizes two kinds or classes of ceded territory: one, “made a part of the United States by congressional action,” that is, incorporated into the United States; the other, unincorporated. While congressional authority over either class is supreme, when the Constitution and laws of the United States are extended by Congress over a territory, they cannot be withdrawn,96 for if the Constitution could be withdrawn directly it could be nullified indirectly by acts passed inconsistent with it. The Constitution would thus cease to exist as such and would become of no greater authority than an ordinary act of Congress.97 The decision of the Court as to the power of Congress over territory of the United States makes Congress absolute in the exercise of its power. The Court does enumerate the limitations on Congress, in such control, but leaves each limitation to be determined as the issue involving it shall arise.98 The safeguard against congressional absolutism is thus expressed by the Court:

There are certain principles of natural justice inherent in the Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect, or to secure dependencies against legislation manifestly hostile to their real interests.99