CHAPTER XXVII

THE FEDERAL SYSTEM

HAVING examined the several branches of the National government and the manner in which they work together, we may now proceed to examine the American Commonwealth as a Federation of States. The present chapter is intended to state concisely the main features which distinguish the Federal system, and from which it derives its peculiar character. Three other chapters will describe its practical working, and summarize the criticisms that may be passed upon it.

The contests in the Convention of 1787 over the framing of the Constitution, and in the country over its adoption, turned upon two points: the extent to which the several States should be recognized as independent and separate factors in the construction of the National government, and the quantity and nature of the powers which should be withdrawn from the States to be vested in that government. It has been well remarked that "the first of these, the definition of the structural powers, gave more trouble at the time than the second, because the line of partition. between the powers of the States and the Federal government had been already fixed by the whole experience of the country." But since 1791 there has been practically no dispute as to the former point, and little as to the propriety of the provisions which define the latter. On the interpretation of these provisions there has, of course, been endless debate, some deeming the Constitution to have taken more from the States, some less; while still warmer controversies have raged as to the matters which the instrument does not expressly deal with, and particularly whether the States retain their sovereignty, and with it the right of nullifying or refusing to be bound by certain acts of the

1 I quote from an acute and concise essay on this subject by Mr. Richard M. Venable of Baltimore, entitled "The Partition of Powers between the Federal and State Governments," being a paper read at the 1885 meeting of the American Bar Association.

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national government, and in the last resort of withdrawing from the Union. As these latter questions (nullification and secession) have now been settled by the Civil War, we may say that in the America of to-day there exists a general agreement—

That every State on entering the Union finally renounced its sovereignty, and is now for ever subject to the Federal authority as defined by the Constitution.

That the functions of the States as factors of the national government are satisfactory, i.e. sufficiently secure its strength and the dignity of these communities.

That the delimitation of powers between the national government and the States, contained in the Constitution, is convenient, and needs no fundamental alteration.1

The ground which we have to tread during the remainder of this chapter is therefore no longer controversial ground, but that of well-established law and practice.2

I. The distribution of powers between the National and the State governments is effected in two ways-Positively, by conferring certain powers on the National government; Negatively, by imposing certain restrictions on the States. It would have been superfluous to confer any powers on the States, because they retain all powers not actually taken from them. A lawyer may think that it was equally unnecessary and, so to speak, inartistic, to lay any prohibitions on the National government, because it could ex hypothesi exercise no powers not expressly granted. However, the anxiety of the States to fetter the master they were giving themselves caused the introduction of provisions. qualifying the grant of express powers, and interdicting the National government from various kinds of action on which it might otherwise have been tempted to enter. The matter is

1 The view that the power of Congress to legislate might properly be extended, by a constitutional amendment, to such a subject as marriage and divorce, is of course compatible with an acquiescence in the general scheme of delimitation of powers.

2 A remarkably clear view of the limits of Federal and State authority may be found in the treatise of Mr. C. S. Patterson (published since this chapter was written), Federal Restraints on State Action: Philadelphia, 1888.

3 Judge Cooley observes to me, "The prohibitions imposed by the Federal Constitution on the exercise of power by the general government were not, for the most part, to prevent its encroaching on the powers left with the States, but to preclude tyrannical exercise of powers which were unquestionably given to the Federal government. Thus Congress was forbidden to pass any bill of attainder; this was to prevent its dealing with Federal offences by legislative conviction and sentence. It was forbidden to pass ex post facto laws, and this undoubtedly is a

further complicated by the fact that the grant of power to the National government is not in all cases an exclusive grant: i.e. there are matters which both, or either, the States and the National government may deal with. "The mere grant of a power to Congress does not of itself, in most cases, imply a prohibition upon the States to exercise the like power. . . . It is not the mere existence of the National power, but its exercise, which is incompatible with the exercise of the same power by the States." Thus we may distinguish the following classes of governmental powers:

Powers vested in the National government alone.

Powers vested in the States alone.

Powers exercisable by either the National government or the States.

Powers forbidden to the National government.

Powers forbidden to the State governments.

It might be thought that the two latter classes are superfluous, because whatever is forbidden to the National government is permitted to the States, and conversely, whatever is forbidden to the States is permitted to the National government. But this is not so. For instance, Congress can grant no title of nobility (Art. i. § 9). But neither can a State do so (Art. i. § 10). The National government cannot take private property for public use without just compensation (Amendment v.) Apparently neither can any State do so (Amendment xiv. as interpreted in several cases). So no State can pass any law impairing the obligation of a contract (Art. i. § 10). But the National government, although not subject to a similar direct prohibition, has received no general power to legislate as regards ordinary contracts, and might therefore in some cases find itself equally unable to pass a law which a State legislature, though for a different reason, could not pass.2 So no State can pass any ex post facto law. Neither can Congress.

What the Constitution has done-and this is to Englishmen. one of its most singular features-is not to cut in half the

limitation upon power granted; for with the same complete power in respect to offences against the general government which a sovereignty possesses, it might have passed such laws if not prohibited."

1 Cooley, Principles, p. 35; cf. Sturges v. Crowninshield, 4 Wheat. 122.

2 Of course Congress can legislate regarding some contracts, and can impair their obligation. It has power to regulate commerce, it can pass bankrupt laws, it can make paper money legal tender.

totality of governmental functions and powers, giving part to the national government and leaving all the rest to the States, but to divide up this totality of authority into a number of parts which do not exhaust the whole, but leave a residuum of powers neither granted to the Union nor continued to the States but reserved to the people, who, however, can put them in force only by the difficult process of amending the Constitution. In other words, there are things in America which there exists no organized and permanent authority capable of legally doing, not a State, because it is expressly forbidden, not the national government, because it either has not received the competence or has been expressly forbidden. Suppose, for instance, that there should arise a wish to pass for California such a measure as the Irish Land Act passed by the British Parliament in 1881, or the Irish Land Act passed by that body in 1887. Neither the State legislature of California, nor the people of California assembled in a constitutional convention, could pass such a measure, because it would violate the obligation of contracts, and thereby transgress Art i. § 10 of the Federal Constitution. Whether the Federal Congress could pass such a measure is at least extremely doubtful, because the Constitution, though it has imposed no prohibition such as that which restricts a State, does not seem to have conferred on Congress the right of legislating on such a matter at all.1 If, therefore, an absolute and overwhelming necessity for the enactment of such a measure should arise, the safer if not the only course would be to amend the Federal Constitution, either by striking out the prohibition on the States or by conferring the requisite power on Congress, a process which would probably occupy more than a year, and which requires the concurrence of twothirds of both Houses of Congress and of three-fourths of the thirty-eight States.

II. The powers vested in the National government alone are such as relate to the conduct of the foreign relations of the country and to such common national purposes as the army and navy, internal commerce, currency, weights and measures, and the post-office, with provisions for the management of the

1 It may of course be suggested that in case of urgent public necessity, such as the existence of war or insurrection, Congress might extinguish debts either generally or in a particular district. No such legislative power seems, however, to have been exerted or declared by the courts to exist, unless the principles of the last Legal Tender decision can be thought to reach so far.

machinery, legislative, executive, and judicial, charged with these purposes.1

The powers which remain vested in the States alone are all the other ordinary powers of internal government, such as legislation on private law, civil and criminal, the maintenance of law and order, the creation of local institutions, the provision for education and the relief of the poor, together with taxation for the above purposes.

III. The powers which are exercisable concurrently by the National government and by the States are

Powers of legislation on some specified subjects, such as bankruptcy and certain commercial matters (e.g. pilot laws and harbour regulations), but so that State legislation shall take effect only in the absence of Federal legislation.

Powers of taxation, direct or indirect, but so that neither Congress nor a State shall tax exports from any State, and so that neither any State shall, except with the consent of Congress, tax any corporation or other agency created for Federal purposes or any act done under Federal authority, nor the National government tax any State or its agencies or property.

Judicial powers in certain classes of cases where Congress might have legislated, but has not, or where a party to a suit has a choice to proceed either in a Federal or a State court. Powers of determining matters relating to the election of representatives and senators (but if Congress determines, the State law gives way).

IV. The prohibitions imposed on the National government are set forth in Art. i. § 9, and in the first ten amendments. The most important are―

Writ of habeas corpus may not be suspended, nor bill of attainder or ex post facto law passed.2

No commercial preference shall be given to one State over another.

No title of nobility shall be granted.

No law shall be passed establishing or prohibiting any religion, or abridging the freedom of speech or of the press, or of public meeting, or of bearing arms.

1 See Art. i. § 8, Art. ii. § 2, Art. iii. § 2, Art. iv. §§ 3 and 4; Amendments xiii. xiv. xv. of the Constitution.

2 Limitations of a nature generally similar to these are now pretty frequent in recent European Constitutions, e.g. in that of Belgium.

The term ex post facto law is deemed to refer to criminal laws only.