GOVERNMENT in the United States is dual, that is to say, the powers of government are distributed between the States and the National Government. The rule governing this distribution is as follows: The National Government has such powers, and those only, as are bestowed upon it in terms by the Constitution, while to the States are left all other powers which are not prohibited them by the Constitution. True, the National Government exercises what are known as "implied powers but this is in consequence of Article I, section 8, paragraph 18, of the Constitution, which confers upon Congress the power to make "all laws necessary and proper" for carrying into execution its enumerated powers as well as those that are conferred in terms upon the other departments of the National Government; so that in strict constitutional theory the so-called " implied powers" of the National Government are of the same legal character as those

powers that are bestowed upon it in more precise terms. True, also, the State governments do not always possess all the powers that under the national Constitution belong to a State, but this is because the people of a State often choose to withhold the powers in question from their government and is, therefore, a consideration affecting only the internal policy of such States and not at all the constitutional law of the nation at large. In general, therefore, the rule above formulated as the one governing the distribution of powers between the States and the United States, under the national Constitution, is the correct one.

At first glance it might seem that this apportionment of power between the States and the National Government was of an accuracy to obviate all conflicts of authority between the two centers, and doubtless there were those in the Convention of 1787 who thought that the eternal riddle of what degree of independence and autonomy to leave in the localities, while at the same time preserving an adequate force at the center, had been solved, at least in terms, once and for all time. But if such belief was held, it was a delusion, for aside entirely from the fact that the vitality of a nation is not to be thus" cabined, cribbed, confined" by the intention of even the most perspicacious law-givers, there is the equally patent fact that the legal approaches to any given subject-matter of legislation are multifarious, wherefore it often happens that the same

subject-matter falls under governmental control in a considerable number of ways at one and the same moment. This would obviously be the case in any system of government. The peculiarity attaching to the American system is merely that governmental control is divided between two centers, so that while one center may be attempting to control a given matter in execution of power indubitably belonging to it, the other center may upon like grounds be attempting control of the same matter in a quite contradictory fashion and to quite contradictory ends.

The application of these remarks to the subject of this essay furnishes also their illustration. By the Constitution not only is the power to make treaties conferred in terms upon the National Government,1 but it is specifically denied the States. On the other hand, the Constitution plainly infers the possession by the States of broad powers of control over their internal concerns, powers which, when viewed from the point of view of the security, morality, and welfare of the community to which they are available, are called the "police powers." It has not a few times come about, therefore, as we shall discover in due course, that something done by a State in the supposed exercise of its police powers, has fallen athwart something done by the National Government in the supposed exercise of its power to make treaties. The question is at

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once prompted, what is the way out of such an impasse?

Turning, then, to the Constitution for enlightenment, our attention is first drawn to Article VI, paragraph 2, which announces 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," and à fortiori, the judges of the United States,-" shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.'

Indubitably this passage settles the fact that a treaty made "under the authority of the United States" overrides all conflicting provisions of State constitutions or State statutes, but the question still remains, whether all treaties, though made with all due form, can claim the sanction of the "authority of the United States." That authority rests upon the Constitution, which is thus the legal source of the treaty-power. Can the treaty-power then be conceived to be without constitutional limitation? The consequences of an affirmative answer to this question would not necessarily be so terrific as has perhaps been sometimes imagined—they might conceivably be rather negligible, since the actual check imposed upon the treaty-power by the method prescribed in the Constitution for its exercise-in other words, the political check-should be not a little

efficacious in practice. On the other hand, the notion of unlimited power, wherever lodged, has always been to the American mind an uncongenial one.3 Indeed so true is this, that attachment to constitutional limitations enforceable by the courts has in the past amounted to a national superstition. Naturally the treaty-power, though no treaty has ever been declared unconstitutional, has not altogether escaped the action of this bias.

But admitting that the treaty-power is constitutionally limited, that the United States cannot do by treaty what it is forbidden by the Constitution. to do at all, the question next arises, whether what we have called the police powers of the State comprise one of the limitations to that power. The provision of the Constitution that is usually brought forward in this connection is the Tenth Amendment, which reads as follows: "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." The literal meaning of these words, it is submitted, is that the powers reserved to the States are reserved always in consequence of and conditionally upon their not having been delegated to the United States, so that once it is made out that an item of power has been really delegated to the United States, it is impossible to set up the contention that such power is constricted by supposed outstanding rights of the

T. M. Cooley, "Constitutional Limitations" (1871), 173-7.