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CHAPTER IV.

THE SUPREMACY OF FEDERAL AUTHORITY.

§ 42. Federal Supremacy.

The supremacy of the Federal Government, when operating within its constitutional sphere, over all persons and bodies politic within its territorial limits, is no longer open to question. That the extent of this federal constitutional sphere of action is to be determined in the last resort by the federal Supreme Court, is equally well settled.

The maintenance of this supremacy unimpaired, while at the same time preserving to the States their proper autonomy and independence of action, has, however, been a difficult task; and, so long as the federal form is retained, this task will continue to tax to the utmost the legal and political abilities of our courts and political bodies. With a quite proper motive those who have controlled the public actions of the States, and those who have guided the activities of the United States, have sought for their respective governments the greatest possible constitutional power and independence, and, therefore, have not hesitated to occupy debatable territory. Thus, without there being any denial of the supremacy of the federal law, when operating within its proper field, or of the right of the federal Supreme Court to determine, in final resort, the extent of that proper field, frequent conflicts have resulted. These conflicts in their many and varied forms furnish much of the material for the present treatise, and they will be severally considered in their logical order. It will not be without value, however, to review in this introductory chapter some of the more important cases in which the supremacy of federal over state law has been generally and broadly asserted.

The general statement may be made that, since the beginning of our present Government, in no instance has the federal Supreme Court failed to assert the supremacy of the federal power when its authority has been attacked by the States. In 1793 the court upheld its right under the Constitution, as it then stood,

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to entertain a suit against the State of Georgia brought by a citizen of another State. The next year the court clearly intimated that it would disregard a state law in conflict with a federal treaty. The supremacy of federal law was again asserted the next year in Penhallow v. Doane, and in 1796 in Ware v. Hylton. In Calder v. Bull5 the doctrine was definitely asserted, though its application was not found necessary, that a state law in conflict with the federal Constitution would be disregarded. In 1809, in United States v. Peters, this action became necessary and the doctrine was applied, Chief Justice Marshall speaking for the unanimous court, saying: If the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under these judgments, the Constitution becomes itself a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all, and the people of Pennsylvania, as well as the citizens of every other State, must feel a deep interest in resisting principles so destructive of the Union and in asserting consequences so fatal to themselves. The State of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause." "It will be readily conceived," the great Chief Justice concludes, "that the order which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded."

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In 1810 and 1812 state laws were again held void by the Supreme Court because in conflict with the federal Constitution."

1 Chisholm v. Georgia, 2 Dall. 419; 1 L. ed. 440.

2 Georgia v. Brailsford, 3 Dall. 1; 1 L. ed. 483.

33 Dall. 54; 1 L. ed. 507.

43 Dall. 199; 1 L. ed. 568.

53 Dall. 386; 1 L. ed. 648.

5 Cr. 115; 3 L. ed. 53.

7 Fletcher v. Peck (6 Cr. 87; 3 L. ed. 162); New Jersey v. Wilson (7 Cr. 164; 3 L. ed. 303).

Finally in the great case of McCulloch v. Maryland,s decided in 1819, not only was a state law held void, but the general doctrine declared that the State cannot, in the exercise of its reserved powers, even of the highest of them, interfere with the operation of a federal agency even though that agency be one of convenience and not of necessity to the United States. "The States have no power," it was declared, "by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared."

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In Martin v. Hunter's Lessee, decided in 1816, and in Cohens v. Virginia,1o decided in 1821, the Supreme Court upheld its authority to review, on writs of error, decisions of state courts adverse to alleged federal rights, the exercise of this jurisdiction having been provided for by the famous twenty-fifth section of the Judiciary Act of 1789. Justice Story who spoke for the court said: "The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the States, and if they are found to be contrary to the Constitution may declare them to be of no legal validity. Surely, the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power."

In Cohens v. Virginia," Chief Justice Marshall, speaking for the court, said: "If it could be doubted, whether from its nature it [the National Government] were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration that 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

84 Wh. 316; 4 L. ed. 579. 91 Wh. 304; 4 L. ed. 97. 10 6 Wh. 264; 5 L. ed. 257. 116 Wh. 264; 5 L. ed. 257.

thing in the Constitution or laws of any State to the contrary notwithstanding.' This is the authoritative language of the American people, and, if the gentlemen please, of the American States. The people made the Constitution and the people

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can unmake it. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people; not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated the power of repelling The framers of the Constitution were indeed unable to make any provisions which should protect that instrument against a general combination of the States, or of the people for its destruction; and, conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one State, whose tendency might be to arrest the execution of the laws; and this it was the part of wisdom to attempt. We think they have attempted it." The importance of the doctrine that was emphatically declared in these two cases it is impossible to exaggerate. This the upholders of States' Rights clearly saw. Thus Calhoun later wrote:12 "The effect of this is to make the government of the United States the sole judge, in the last resort, as to the extent of its powers, and to place the States and their separate governments and institutions at its mercy. It would be a waste of time to undertake to show that an assumption that would destroy the relation of co-ordinates between the government of the United States and those of the several States, which would enable the former, at pleasure, to absorb the reserved powers and to destroy the institutions, social and political, which the Constitution was ordained to establish and protect, is wholly inconsistent with the federal theory of government, though in perfect accordance with the national theory. Indeed, I might go further and assert, that it is, of itself, all sufficient to convert it into a national, consolidated government."

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12 Discourse on the Constitution and Government of the United States. Works, I, 338.

During the same year that the case of McCulloch v. Maryland was decided, two other state laws were held void by the Supreme Court, one of New York, in Sturges v. Crowinshield,13 and one of New Hampshire in Dartmouth College v. Woodward.1

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In 1824, in Osborn v. Bank of the United States15 the attempt of Ohio to tax the federal bank was declared unconstitutional. In 1829, in Weston v. Charleston,16 a municipal tax on stock of the United States held by citizens of the city of Charleston was held invalid. In 1824, in the case of Gibbons v. Ogden," was begun that long line of decisions which has established the power of the United States to regulate interstate commerce free from state interference an authority the exercise of which has done so much to increase the actual power and influence of the National Government. In this case a law of the State of New York was held void.

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In 1823, a law of Kentucky was held of no force by the federal court,18 and in 1830 a law of Missouri received similar treatment.19 In 1832 in Worcester v. Georgia,20 an act of the State of Georgia was held void, but the Supreme Court failed to secure the release of the plaintiff who had been imprisoned under it. This failure was due, however, not to the weakness on part of the Federal Government but to the refusal of the President to lend his executive aid.

From 1835 to the outbreak of the Civil War there can be no question but that the Supreme Court of the United States exerted a much less potent influence in solidifying and expanding the federal power than it had exercised during the thirty-five years preceding. During the two terms of office of Jackson, five vacancies occurred in the Supreme Court, among them that of the

13 4 Wh. 122; 4 L. ed. 529.
14 4 Wh. 518; 4 L. ed. 629.
15 9 Wh. 738; 6 L. ed. 204.
162 Pet. 449; 7 L. ed. 481.
179 Wh. 1; 6 L. ed. 23.

18 Green v. Biddle (8 Wh. 1; 5 L. ed. 547).
19 Craig v. Missouri (4 Pet. 410; 7 L. ed. 903).
20 6 Pet. 515; 8 L. ed. 483.

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