the national government comes from the federal Constitution either by express or implied delegation. The authority for all powers exercised by state governments comes from their own Constitutions and may include all governmental powers the exercise of which does not conflict with the full exercise of its delegated powers by the national government, and is not expressly prohibited by the federal Constitution. This theory of the division of governmental authority between national and state governments is set forth in the tenth amendment and the sixth article of the federal Constitution. "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 Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." The system may be characterized by the three phrases: national delegated powers, state residual powers, and national supremacy.3 42. Constitutional Prohibitions of State Power. Restrictions upon the exercise of state power may exist by virtue of (1) express or implied constitutional prohibitions or (2) as a result of action taken by national governmental organs. Constitutional restrictions may be expressed in the state's own Constitution or in the federal Constitution. In the latter are several express restrictions upon the exercise of state power. Some are for the protection of private rights such as the prohibition of laws impairing the obligation of contracts, ex post facto laws and laws depriving persons of life, liberty and property without due process of law. Others are intended to insure the centralization of power in matters of national interest, especially in the control of foreign relations. Such are the prohibitions against treaty making, war making, import, export and tonnage duties. In addition are 3 See Willoughby, Const. Law, pp. 53, 78. * Constitution, Art. I, sec. 10, cl. 1, Amendment XIV. 5 Ibid., Art. I, sec. 10. several prohibitions implied from the nature of the federal union such as the prohibitions against secession and the taxation of agencies of the national government. Other prohibitions have been implied from the necessarily exclusive character of certain powers delegated to the national government such as the power to regulate foreign commerce, except purely local regulations, and to provide for the naturalization of aliens.8 43. Action of National Organs Limiting State Powers. State powers may also be restricted in their exercise by the principle of national supremacy. As national organs exercise more and more of their concurrent powers, state powers are correspondingly reduced. For example when Congress passes bankruptcy statutes or statutes fixing standards of weights and measures, the state's power in these fields is lost and state statutes on the subject automatically cease to operate though if the national statute is repealed they automatically come into force again." The state police power has been greatly restricted by the more complete exercise by the national government of its powers to regulate interstate commerce, to establish postoffices and post roads and to tax.10 No less remarkable, however, has been the reduction. of state powers through the exercise of national powers relating to foreign relations. Thus wars have justified legislation by Congress such as recently illustrated by the draft acts, acts authorizing railroad, telegraph, food and fuel control, and acts punishing espionage and disloyal conduct. These have all entered fields ordinarily within state control. Similar reductions of state power but in less degree have resulted from a state of neutrality and the consequent operation of laws punishing offenses against neutrality, authorizing national censorship of telegraph and radio communication and a closer supervision of commercial transactions. Even • Texas v. White, 7 Wall. 700 (1868). 7 McCulloch v. Md., 4 Wheat. 316, 432; Dobbins v. Erie County, 16 Pet. 435. s Willoughby, op. cit., pp. 73-74; J. P. Hall, Constitutional Law, pp. 254, 288; Cooley v. Port Wardens, 12 How. 299; Chirac v. Chirac, 2 Wheat. 259. 9 Willoughby, op. cit., pp. 74, 779. 10 See Cushman, The Police Power of the National Government, 1920, reprinted from the Minn. Law Rev., vols. 3, 4. in time of peace the exercise of foreign relations powers has shown a tendency to narrow state power. Thus Congress has extended the jurisdiction of federal courts over many cases involving treaty interpretation, over numerous controversies where aliens or persons especially protected by international law are parties, and over many offenses against international law and treaty. Congress has also given national officers authority to enforce such treaties as those protecting migratory birds, and fish in boundary waters, and those requiring extradition of criminals and prohibition of the white slave traffic. Many self-executing treaties have limited state power without congressional action such as those according property and personal rights to aliens." 11 Although this limitation of state powers by action of national organs has been a patent phenomenon, its constitutionality has been questioned, especially so far as effected through exercise by the national government of its power over foreign relations. Thus it has been alleged that all state powers are not merely residual but that some, for instance the police power, are "reserved" powers incapable of limitation by any exercise of its delegated powers by the national government. It will readily be seen that this notion is wholly incompatible with the principle of national supremacy and while it has great historic importance, it never commanded wholehearted support from the courts and at present enjoys no legal recognition.12 The concept of "reserved" powers is, however, of importance as an "understanding" of the Constitution. In practice both Congress and the treaty-making power have sometimes refrained from fully exercising their powers out of respect for state susceptibilities, and the courts have sometimes given rather strained interpretations to treaties for the same reason.13 We may conclude that state exercises of power in the field of foreign relations have been so restricted that such powers hardly exist at all. 11 See Corwin, National Supremacy, N. Y., 1913; Sutherland, Constitutional Power and World Affairs, N. Y., 1919. 12 Infra., secs. 48-51. 13 Infra, sec. 50. CHAPTER VI. LIMITATIONS UPON NATIONAL POWERS: PRIVATE RIGHTS AND STATES' RIGHTS. 44. Nature of Prohibitions. Restriction upon the exercise of power by national organs may be expressed in the federal Constitution or implied from the rights guaranteed the states and individuals and the independence guaranteed the departments of government by the federal Constitution Whether stated in the negative form of a prohibition against the national government or in the positive form of a right or privilege guaranteed the individual, state, or particular organ of government, the effect is the same. These restrictions fall into three groups. (1) Some are in behalf of the states, as those prohibiting anti-slave-trade laws before 1808 and the freeing of fugitive slaves; those prohibiting direct taxes except in proportion to population, export taxes and discriminatory commercial or revenue regulations or tariffs; 2 those prohibiting the formation of new states within the jurisdiction of existing states or the junction of states without their consent;3 and those implied from the guarantee to the states of territorial integrity, a Republican form of government and immunity of their necessary governmental organs from taxation. (2) A second class of restrictions is in behalf of the separation of powers as that prohibiting members of the House or Senate from holding any office under the United States," that prohibiting appropriations except by "law," and those implied from the privileges expressly guaranteed certain organs or from the separation of the legislative, executive and judicial departments. (3) The most numerous prohibitions are in behalf of individual rights and interests. Thus the individual's supposed interest in democratic government, Puritanic 1 Constitution, I, sec. 9, cl. 1; IV, sec. 2, cl. 3. 2 Ibid., I, sec. 9, cl. 4-6; sec. 8, cl. 1. 3 Ibid., IV, sec. 3, cl. 1, 2. 4 Ibid., IV, sec. 4. See also infra, sec. 48. 5 Ibid., I, sec. 6, cl. 2. Ibid., I, sec. 9, cl. 7. 11 9 8 morals, and the general welfare are protected by prohibitions against titles of nobility, the acceptance by officers of foreign presents, the abridgment of the voting privilege on account of race, color, previous condition of servitude, or sex; by prohibitions against slavery and intoxicating beverages, and by the implied prohibition against taxes not for the "general welfare." 10 The individual's interest in life, liberty and property are especially protected by prohibitions against suspension of the privilege of habeas corpus except in emergency, bills of attainder and ex post facto laws; prohibitions against religious tests for officers, against the establishment of religion, the abridgment of the freedom of speech, press, assembly, petition and the bearing of arms; 12 prohibitions against compulsory quartering of troops in time of peace, unreasonable searches and seizures, the taking of life, liberty or property without due process of law and the taking of private property for public use without just compensation,13 and finally prohibitions designed to assure a fair trial, especially in criminal cases, as the requirement of jury trial and compulsory process to obtain witnesses and the prohibition against excessive bail, double jeopardy, cruel and unusual punishments.14 Prohibitions for the protection of individual interests have seldom affected the power of national organs in the conduct of foreign relations. A. Private Rights. 45. Effect upon Power to Meet International Responsibilities.· Such guarantees have not interfered with the meeting of responsibilities imposed by international law or treaty.15 They are 8 Ibid., I, sec. 9, cl. 8; Amendments XV, XIX. Ibid., Amendments XIII, XVIII. 10 Ibid., I, sec. 8, cl. 1. See also Willoughby, op. cit., p. 39; J. P. Hall, Constitutional Law, pp. 173-174. 11 Ibid., I, sec. 9, cl. 2, 3. 12 Ibid., VI, sec. 3, Amendments I-II. 13 Ibid., Amendments III-V. 14 Ibid., III, sec. 2, cl. 3; sec. 3; Amendments V-VIII. 15 Most Constitutional Limitations cannot affect the power to execute treaties, because they apply to the treaty-making power as well as other organs of government. Consequently if an apparent treaty proved inexecutable by virtue of a constitutional limitation, it would really be no treaty |