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CHAPTER 28

Working Relations of the National and the State Governments

The characteristic feature and special interest of the American Union is that it shows us two governments covering the same ground yet distinct and separate in their action. It is like a great factory wherein two sets of machinery are at work, their revolving wheels apparently intermixed, their bands crossing one another, yet each set doing its own work without touching or hampering the other. To keep the national government and the state governments each in the allotted sphere, preventing collision and friction between them, was the primary aim of those who formed the Constitution, a task the more needful and the more delicate because the states had been until then almost independent and therefore jealous of their privileges, and because, if friction should arise, the national government could not remove it by correcting defects in the machinery. For the national government, being itself the creature of the Constitution, was not permitted to amend the Constitution, but could only refer it back for amendment to the people of the states or to their legislatures. Hence the men of 1787, feeling the cardinal importance of anticipating and avoiding occasions of collision, sought to accomplish their object by the concurrent application of two devices. One was to restrict the functions of the national government to the irreducible minimum of functions absolutely needed for the national welfare, so that everything else should be left to the states. The other was to give that government, so far as those functions extended, a direct and immediate relation to the citizens, so that it should act on them not through the states but of its own authority and by its own officers. These are fundamental principles whose soundness experience has approved, and which will deserve to be considered by those who in time to come may have in other countries to frame federal or quasi-federal constitutions. They were studied, and to a large extent, though in no slavish spirit, adopted by the founders of the present constitution of the Swiss Confederation, a constitution whose success bears further witness to the soundness of the American doctrines.

The working relations of the national government to the states may be considered under two heads, viz., its relations to the states as corporate bodies, and its relations to the citizens of the states as individuals, they being also citizens of the Union.

The national government touches the states as corporate commonwealths in three points. One is their function in helping to form the national government; another is the control exercised over them by the federal Constitution through the federal courts; the third is the control exercised over them by the federal legislature and executive in the discharge of the governing functions which these latter authorities possess.

I. The states serve to form the national government by choosing presidential electors, by choosing senators, and by fixing the franchise which qualifies citizens to vote for members of the House of Representatives.¹ No difficulty has ever arisen (except during the Civil War) from any unwillingness of the states to discharge these duties, for each state is eager to exercise as much influence as it can on the national executive and Congress. But note how much latitude has been left to the states. A state may appoint its presidential electors in any way it pleases. All states now do appoint them by popular vote. But during the first thirty years of the Union many states left the choice of electors to their respective legislatures. So a state may, by its power of prescribing the franchise for its state elections, prescribe whatever franchise it pleases for the election of its members of the federal House of Representatives, and may thus admit persons who would in other states be excluded from the suffrage, or exclude persons who would in other states be admitted. For instance, at least nine states now allow aliens (i.e., foreigners not yet naturalized) to vote; and nine² states admit women to vote at all state elections, thereby admitting them to vote also at congressional and presidential elections.³ The only restriction imposed on state discretion in this respect is that of the Fifteenth Amendment, which forbids any person to be deprived of suffrage, on “account of race, colour, or previous condition of servitude.” ⁴

II. The federal Constitution deprives the states of certain powers they would otherwise enjoy. Some of these, such as that of making treaties, are obviously unpermissible, and such as the state need not regret.⁵ Others, however, seriously restrain their daily action. They are liable to be sued in the federal courts by another state or by a foreign power.⁶ They cannot, except with the consent of Congress, tax exports or imports, or in any case pass a law impairing the obligation of a contract. They must surrender fugitives from the justice of any other state. Whether they have transgressed any of these restrictions is a question for the courts of law, and, if not in the first instance, yet always in the last resort a question for the federal Supreme Court. If it is decided that they have transgressed, their act, be it legislative or executive, is null and void.⁷

The president as national executive, and Congress as national legislature, have also received from the Constitution the right of interfering in certain specified matters with the governments of the states. Congress of course does this by way of legislation, and when an act of Congress, made within the powers conferred by the Constitution, conflicts with a state statute, the former prevails against the latter. It prevails by making the latter null and void, so that if a state statute has been duly passed upon a matter not forbidden to a state by the Constitution, and subsequently Congress passes an act on the same matter, being one whereon Congress has received the right to legislate, the state statute, which was previously valid, now becomes invalid to the extent to which it conflicts with the act of Congress. For instance, Congress has power to establish a uniform law of bankruptcy over the whole Union. Formerly, in the exercise of this power, it passed bankruptcy laws. When these were repealed, the subject was left to the state laws;⁸ and still later, in 1898, Congress again legislated on the subject, depriving these state laws of their force.⁹ If the law passed by Congress were again repealed, they would again spring into life. The field of this so-called concurrent legislation is large, for Congress has not yet exercised all the powers vested in it of superseding state action.

It was remarked in the last chapter that in determining the powers of Congress on the one hand and of a state government on the other, opposite methods have to be followed. The presumption is always in favour of the state; and in order to show that it cannot legislate on a subject, there must be pointed out within the four corners of the Constitution some express prohibition of the right which it prima facie possesses or some implied prohibition arising from the fact that legislation by it would conflict with legitimate federal authority.¹⁰ On the other hand, the presumption is always against Congress, and to show that it can legislate, some positive grant of power to Congress in the Constitution must be pointed out.¹¹ When the grant is shown, then the act of Congress has, so long as it remains on the statute book, all the force of the Constitution itself. In some instances the grant of power to Congress to legislate is auxiliary to a prohibition imposed on the states. This is notably the case as regards the amendments to the Constitution, passed for the protection of the lately liberated Negroes. They interdict the states from either recognizing slavery, or discriminating in any way against any class of citizens; they go even beyond citizens in their care, and declare that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” Now, by each of these amendments, Congress is also empowered, which practically means enjoined, to “enforce by appropriate legislation” the prohibitions laid upon the states. Congress has done so, but some of its efforts have been held to go beyond the directions of the amendments, and to be therefore void.¹² The grant of power has not covered them.

Where the president interferes with a state, he does so either under his duty to give effect to the legislation of Congress, or under the discretionary executive functions which the Constitution has entrusted to him. So if any state were to depart from a republican form of government, it would be his duty to bring the fact to the notice of Congress in order that the guarantee of that form contained in the Constitution might be made effective. If an insurrection broke out against the authority of the Union, he would (as in 1861) send federal troops to suppress it. If there should be rival state governments, each claiming to be legitimate, the president might, especially if Congress were not sitting, recognize and support the one which he deemed regular and constitutional.¹³

Are these, it may be asked, the only cases in which federal authority can interfere within the limits of a state to maintain order? Are law and order, i.e., the punishment of crimes and the enforcement of civil rights, left entirely to state authorities? The answer is:

Offences against federal statutes are justiciable in federal courts, and punishable under federal authority. There is no federal common law of crimes;

Resistance offered to the enforcement of a federal statute may be suppressed by federal authority;

Attacks on the property of the federal government may be repelled, and disturbances thence arising may be quelled by federal authority;

The judgments pronounced in civil causes by federal courts are executed by the officers of these courts;

All other offences and disorders whatsoever are left to be dealt with by the duly constituted authorities of the state, who are, however, entitled in one case to summon the power of the Union to their aid.

This case is that of the breaking out in a state of serious disturbances. The president is bound on the application of the state legislature or executive to quell such disturbances by the armed forces of the Union, or by directing the militia of another state to enter. Thus in 1794 Washington suppressed the so-called Whisky Insurrection in Pennsylvania by the militia of Pennsylvania, New Jersey, Virginia, and Maryland.¹⁴ President Grant was obliged to use military force during the troubles which disturbed several of the Southern states after the Civil War; as was President Hayes, during the tumults in Pennsylvania caused by the great railway strikes of 1877. There have, however, been cases, such as the Dorr rebellion in Rhode Island in 1842,¹⁵ in which a state has itself suppressed an insurrection against its legitimate government. It is the duty of a state to do so if it can, and to seek federal aid only in extreme cases, when resistance is formidable. The most remarkable recent instance of federal interposition occurred in 1894 when, during a railway strike in Illinois, mobs had stopped the passage of trains carrying the U.S. mails. President Cleveland, on the ground that federal property must be protected and the constitutional duty of carrying the mails discharged, sent federal troops to Chicago, though not asked to do so by the governor of Illinois, and secured the passage of the mail trains. His action was generally approved both by the legal profession and by the nation.

So far we have been considering the relations of the national government to the states as political communities. Let us now see what are its relations to the individual citizens of these states. They are citizens of the Union as well as of the states, and owe allegiance to both powers. Each power has a right to command their obedience. To which then, in case of conflict, is obedience due?

The right of the state to obedience is wider in the area of matters which it covers. Prima facie, every state law, every order of a competent state authority, binds the citizen, whereas the national government has but a limited power: it can legislate or command only for certain purposes or on certain subjects. But within the limits of its power, its authority is higher than that of the state, and must be obeyed even at the risk of disobeying the state. An instance in which a state official suffered for obeying his state where its directions clashed with a provision of the federal Constitution may set the point in a clear light. A statute of California had committed to the city and county authority of San Francisco the power of making regulations for the management of gaols. This authority had in 1876 passed an ordinance directing that every male imprisoned in the county gaol should “immediately on his arrival have his hair clipped to a uniform length of one inch from the scalp.” The sheriff having, under this ordinance, cut off the queue of a Chinese prisoner, Ho Ah Kow, was sued for damages by the prisoner, and the court, holding that the ordinance had been passed with a special view to the injury of the Chinese, who consider the preservation of their queue a matter of honour, and that it operated unequally and oppressively upon them, in contravention of the Fourteenth Amendment to the Constitution of the United States, declared the ordinance invalid, and gave judgment against the sheriff.¹⁶ Similar subsequent attempts against the Chinese, made under cover of the Constitution of California of 1879 and divers statutes passed thereunder, have been defeated by the courts.

The safe rule for the private citizen may be thus expressed: “Ascertain whether the federal law is constitutional (i.e., such as Congress has power to pass). If it is, conform your conduct to it at all hazards. If it is not, disregard it, and obey the law of your state.” This may seem hard on the private citizen. How shall he settle for himself such a delicate point of law as whether Congress had power to pass a particular statute, seeing that the question may be doubtful and not have come before the courts? But in practice little inconvenience arises, for Congress and the state legislatures have learnt to keep within their respective spheres, and the questions that arise between them are seldom such as need disturb an ordinary man.

The same remarks apply to conflicts between the commands of executive officers of the national government on the one hand, and those of state officials on the other. If the national officer is acting within his constitutional powers, he is entitled to be obeyed in preference to a state official, and conversely, if the state official is within his powers, and the national officer acting in excess of those which the federal Constitution confers, the state official is to be obeyed.

The limits of judicial power are more difficult of definition. Every citizen can sue and be sued or indicted both in the courts of his state and in the federal courts, but in some classes of cases the former, in others the latter, is the proper tribunal, while in many it is left to the choice of the parties before which tribunal they will proceed. Sometimes a plaintiff who has brought his action in a state court finds when the case has gone a certain length that a point of federal law turns up which entitles either himself or the defendant to transfer it to a federal court, or to appeal to such a court should the decision have gone against the applicability of the federal law. Suits are thus constantly transferred from state courts to federal courts, but you can never reverse the process and carry a suit from a federal court to a state court. Within its proper sphere of pure state law—and of course the great bulk of the cases turn on pure state law—there is no appeal from a state court to a federal court; and though the point of law on which the case turns may be one which has arisen and been decided in the Supreme Court of the Union, a state judge, in a state case, is not bound to regard that decision. It has only a moral weight, such as might be given to the decision of an English court, and where the question is one of state law, whether common law or statute law, in which state courts have decided one way and a federal court the other way, the state judge ought to follow his own courts. So far does this go, that a federal court in administering state law, ought to reverse its own previous decision rather than depart from the view which the highest state court has taken.¹⁷ All this seems extremely complex. I can only say that it is less troublesome in practice than could have been expected, because American lawyers are accustomed to the intricacies of their system.

When a plaintiff has the choice of proceeding in a state court or in a federal court, he is sometimes, especially if he has a strong case, inclined to select the latter, because the federal judges are more independent than those of most of the states, and less likely to be influenced by any bias. So, too, if he thinks that local prejudice may tell against him, he will prefer a federal court, because the jurors are summoned from a wider area, and because the judges are accustomed to exert a larger authority in guiding and controlling the jury. But it is usually more convenient to sue in a state court, seeing that there is such a court in every county, whereas federal courts are comparatively few; in many states there is but one.¹⁸

The federal authority, be it executive or judicial, acts upon the citizens of a state directly by means of its own officers, who are quite distinct from and independent of the state officials. Federal indirect taxes, for instance, are levied all along the coast and over the country by federal customhouse collectors and excisemen, acting under the orders of the Treasury Department at Washington. The judgments of federal courts are carried out by United States marshals, likewise dispersed over the country and supplied with a staff of assistants. This is a provision of the utmost importance, for it enables the central national government to keep its finger upon the people everywhere, and make its laws and the commands of its duly constituted authorities respected whether the state within whose territory it acts be heartily loyal or not, and whether the law which is being enforced be popular or obnoxious. The machinery of the national government ramifies over the whole Union as the nerves do over the human body, placing every point in direct connection with the central executive. The same is, of course, true of the army; but the army is so small and stationed in but few spots, mostly in the Far West where Indian raids used to be feared, and where there are federal reservations to protect, it scarcely comes into a view of the ordinary working of the system.

What happens if the authority of the national government is opposed, if, for instance, an execution levied in pursuance of a judgment of a federal court is resisted, or federal excisemen are impeded in the seizure of an illicit distillery?

Should the United States marshal or other federal officers be unable to overcome the physical force opposed to him, he may summon all good citizens to assist him, just as the sheriff may summon the posse comitatus. If this appeal proves insufficient, he must call upon the president, who may either order national troops to his aid or may require the militia of the state in which resistance is offered to overcome that resistance. Inferior federal officers are not entitled to make requisitions for state force. The common law principle that all citizens are bound to assist the ministers of the law holds in America as in England, but it is as true in the one country as in the other, that what is everybody’s business is nobody’s business. Practically, the federal authorities are not resisted in the more orderly states and more civilized districts. In such regions, however, as the mountains of Tennessee, Eastern Kentucky, and North Carolina the inland revenue officials find it very hard to enforce the excise laws, because the country is wild, concealment is easy among the woods and rocks, and the population sides with the smugglers. And in some of the Western states an injunction granted by a court, whether a federal or a state court, is occasionally disregarded.¹⁹ Things were, of course, much worse before the War of Secession had established the authority of the central government on an immovable basis. Federal law did not prove an unquestioned protection either to persons who became in some districts unpopular from preaching abolitionism, or to those Southern slave-catchers, who endeavoured, under the Fugitive Slave laws, to recapture in the Northern states slaves who had escaped from their masters.²⁰ Passion ran high, and great as is the respect for law, passion in America, as everywhere else in the world, will have its way.

If the duly constituted authorities of a state resist the laws and orders of the national government, a more difficult question arises. This has several times happened.

In November 1798 the legislature of Kentucky adopted resolutions declaring that the Constitution was not a submission of the states to a general government, but a compact whereby they formed such a government for special purposes and delegated to it certain definite powers; that when the general government assumed undelegated powers, its acts were unauthoritative and void; and that it had not been made the exclusive or final judge of the extent of the powers delegated to it. Five weeks later the Virginia legislature passed similar but more guarded resolutions, omitting, inter alia, the last of the above-mentioned deliverances of Kentucky. Both states went on to declare that the Sedition and Alien Acts recently passed by Congress were unconstitutional, and asked the other states to join in this pronouncement and to cooperate in securing the repeal of the statutes.²¹ Seven states answered, all in an adverse sense.

In 1808 the legislatures of some of the New England states passed resolutions condemning the embargo which the national government had laid upon shipping by an act of that year. The state judges, emboldened by these resolutions, took an attitude consistently hostile to the embargo, holding it to be unconstitutional; popular resistance broke out in some of the coast towns; and the federal courts in New England seldom succeeded in finding juries which would convict even for the most flagrant violation of its provisions. At the outbreak of the war of 1812 the governors of Massachusetts and Connecticut refused to allow the state militia to leave their state in pursuance to a requisition made by the president under the authority of an act of Congress, alleging the requisition to be unconstitutional; and in October 1814 the legislatures of these two states and of Rhode Island, states in which the New England feeling against the war had risen high, sent delegates to a convention at Hartford, which, after three weeks of secret session, issued a report declaring that “it is as much the duty of the State authorities to watch over the rights reserved as of the United States to exercise the powers delegated,” laying down doctrines substantially similar to those of the Kentucky resolutions, and advising certain amendments to the federal Constitution, with a menace as to further action in case these should be rejected. Massachusetts and Connecticut adopted the report; but before their commissioners reached Washington, peace with Great Britain had been concluded. In 1828–30 Georgia refused to obey an act of Congress regarding the Cherokee Indians, and to respect the treaties which the United States had made with that tribe and the Creeks. The Georgian legislature passed and enforced acts in contempt of federal authority, and disregarded the orders of the Supreme Court, President Jackson, who had an old frontiersman’s hatred to the Indians, declining to interfere.

Finally, in 1832, South Carolina, first in a state convention and then by her legislature, amplified while professing to repeat the claim of the Kentucky resolutions of 1798, declared the tariff imposed by Congress to be null and void as regarded herself, and proceeded to prepare for secession and war. In none of these cases was the dispute fought out either in the courts or in the field;²² and the questions as to the right of a state to resist federal authority, and as to the means whereby she could be coerced, were left over for future settlement. Settled they finally were by the Civil War of 1861–65, since which time the following doctrines may be deemed established:

No state has a right to declare an act of the federal government invalid.²³

No state has a right to secede from the Union.

The only authority competent to decide finally on the constitutionality of an act of Congress or of the national executive is the federal judiciary.²⁴

Any act of a state legislature or state executive conflicting with the Constitution, or with an act of the national government done under the Constitution, is really an act not of the state government, which cannot legally act against the Constitution, but of persons falsely assuming to act as such government, and is therefore ipso jure void.²⁵ Those who disobey federal authority on the ground of the commands of a state authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the state but against them as individual though combined wrongdoers. A state cannot secede and cannot rebel. Similarly, it cannot be coerced.

This view of the matter, which seems on the whole to be that taken by the Supreme Court in the cases that arose after the Civil War, disposes, as has been well observed by Judge Hare,²⁶ of the difficulty which President Buchanan felt (see his message of December 3, 1860) as to the coercion of a state by the Union. He argued that because the Constitution did not provide for such coercion, a proposal in the Convention of 1787 to authorize it having been ultimately dropped, it was legally impossible. The best answer to this contention is that such a provision would have been superfluous, because a state cannot legally act against the Constitution. All that is needed is the power, unquestionably contained in the Constitution (art. III, § 3), to subdue and punish individuals guilty of treason against the Union.²⁷

Except in the cases hereinbefore specified, the national government has no right whatever of interfering either with a state as a commonwealth or with the individual citizens thereof, and may be lawfully resisted should it attempt to do so.

“What then?” the European reader may ask. “Is the national government without the power and the duty of correcting the social and political evils which it may find to exist in a particular state, and which a vast majority of the nation may condemn? Suppose widespread brigandage to exist in one of the states, endangering life and property. Suppose contracts to be habitually broken, and no redress to be obtainable in the state courts. Suppose the police to be in league with the assassins. Suppose the most mischievous laws to be enacted, laws, for instance, which recognize polygamy, leave homicide unpunished, drive away capital by imposing upon it an intolerable load of taxation. Is the nation obliged to stand by with folded arms while it sees a meritorious minority oppressed, the prosperity of the state ruined, a pernicious example set to other states? Is it to be debarred from using its supreme authority to rectify these mischiefs?”

The answer is, yes. Unless the legislation or administration of such a state transgresses some provision of the federal Constitution (such as that forbidding ex post facto laws, or laws impairing the obligation of a contract), the national government not only ought not to interfere but cannot interfere. The state must go its own way, with whatever injury to private rights and common interests its folly or perversity may cause.

Such a case is not imaginary. In the slave states before the war, although the Negroes were not, as a rule, harshly treated, many shocking laws were passed, and society was going from bad to worse. Even now it sometimes happens that in one or two Western states the roads and even the railways are infested by robbers, there are parts of the country where justice is uncertain and may be unattainable when popular sentiment does not support the law, so that homicide often goes unpunished by the courts, though sometimes punished by Judge Lynch. There are districts where armed bands occasionally appear, perpetrating nocturnal outrages which no state police has been provided to check. So, too, in a few of these states statutes opposed to sound principles of legislation have been passed, and have brought manifold evils in their train. But the federal government looks on unperturbed, with no remorse for neglected duty.

The obvious explanation of this phenomenon is that the large measure of independence left to the states under the federal system makes it necessary to tolerate their misdoings in some directions. As a distinguished authority²⁸ observes to me, “The Federal Constitution provided for the protection of contracts, and against those oppressions most likely to result from popular passion and demoralization; and if it had been proposed to go further and give to the Federal authority a power to intervene in still more extreme cases, the answer would probably have been that such cases were far less likely to arise than was the Federal power to intervene improperly under the pressure of party passion or policy, if its intervention were permitted. To have authorized such intervention would have been to run counter to the whole spirit of the Constitution, which kept steadily in view as the wisest policy local government for local affairs, general government for general affairs only. Evils would unquestionably arise. But the Philadelphia Convention believed that they would be kept at a minimum and most quickly cured by strict adherence to this policy. The scope for Federal interference was considerably enlarged after the Civil War, but the general division of authority between the States and the nation was not disturbed.”

So far from lamenting as a fault, though an unavoidable fault, of their federal system, the state independence I have described, the Americans are inclined to praise it as a merit. They argue, not merely that the best way on the whole is to leave a state to itself, but that this is the only way in which a permanent cure of its diseases will be effected. They are consistent not only in their federal principles but in their democratic principles. “As laissez aller,” they say, “is the necessary course in a federal government, so it is the right course in all free governments. Law will never be strong or respected unless it has the sentiment of the people behind it. If the people of a state make bad laws, they will suffer for it. They will be the first to suffer. Let them suffer. Suffering, and nothing else, will implant that sense of responsibility which is the first step to reform. Therefore let them stew in their own juice: let them make their bed and lie upon it. If they drive capital away, there will be less work for the artisans; if they do not enforce contracts, trade will decline, and the evil will work out its remedy sooner or later. Perhaps it will be later rather than sooner; if so, the experience will be all the more conclusive. Is it said that the minority of wise and peaceable citizens may suffer? Let them exert themselves to bring their fellows round to a better mind. Reason and experience will be on their side. We cannot be democrats by halves; and where self-government is given, the majority of the community must rule. Its rule will in the end be better than that of any external power.” No doctrine more completely pervades the American people, the instructed as well as the uninstructed. Philosophers will tell you that it is the method by which Nature governs, in whose economy error is followed by pain and suffering, whose laws carry their own sanction with them. Divines will tell you that it is the method by which God governs: God is a righteous Judge and God is provoked every day, yet He makes His sun to rise on the evil and the good, and sends His rain upon the just and the unjust. He does not directly intervene to punish faults, but leaves sin to bring its own appointed penalty. Statesmen will point to the troubles which followed the attempt to govern the reconquered seceding states, first, by military force and then by keeping a great part of their population disfranchised, and will declare that such evils as still exist in the South are far less grave than those which the denial of ordinary self-government involved. “So,” they pursue, “Texas and California will in time unlearn their bad habits and come out right if we leave them alone: Federal interference, even had we the machinery needed for prosecuting it, would check the natural process by which the better elements in these raw communities are purging away the maladies of youth, and reaching the settled health of manhood.”

A European may say that there is a dangerous side to this application of democratic faith in local majorities and in laissez aller. Doubtless there is; yet those who have learnt to know the Americans will answer that no nation so well understands its own business.