CHAPTER IX THE NECESSARY AND PROPER POWERS OF THE UNITED STATES WE come now to the question of what methods the National Government may resort to in enforcing its treaties within the States. In this chapter we shall consider the general doctrine applicable to the question and in the following chapter the history of treaty enforcement in the United States. The National Government is a government over individuals. Its range of powers is limited. But within its assigned sphere it is a sovereign govern ment. "Every view we may take of the subject," wrote Hamilton in the Federalist, Number 23, ". will convince us that it is both unwise and dangerous to deny the Federal Government an unconfined authority as to all those objects which are intrusted to its management. . . . A government, the Constitution of which renders it unfit to be trusted with all the powers which a free people ought to delegate to any government, would be an unsafe and improper depository of NATIONAL INTERESTS. Wherever these can with propriety be confided, the coincident powers may safely accompany them. This is the true result of all just reasoning upon the subject. . . If it be true, as has been insinuated by some of the writers on the other side . . . that the extent of the country will not permit us to form a government in which such ample powers can safely be reposed, it would prove that we ought to . . . resort to the expedient of separate confederacies which will move within more practicable spheres. For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust to it the authorities which are indispensable to their proper and efficient management. Let us not attempt to reconcile contradictions, but firmly embrace a rational alternative." 1 That the Framers of the Constitution intended the National Government to be a sovereign government within the sphere of its delegated powers, that is a government possessed of a sovereign choice of means by which to carry its delegated powers into effect, is shown best perhaps by the proceedings in the Convention upon the subjects of treason and insurrection.1a Article VII of the Report of the Committee on Detail to the Convention contained the following clause: "Treason against the United States shall consist only in levying war against the United States or any of them. . . The legislature of the United States shall have power to declare the punishment of treason." Gouverneur Morris, Madison records, was displeased with these provisions. He 'The emphasis is from the original. 66 66 any of was for giving the Union an exclusive right to declare what should be treason. In case of a contest between the United States and a particular State," he pointed out, "the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority." To this practical argument Dr. Johnson of Connecticut added a theoretical one: "Treason could not be both against the United States and the individual States, being an offense against the sovereignty, which can be but one in the same community." Upon motion by Wilson and Johnson, accordingly, the phrase them " was stricken out of Article VII, without a dissenting vote. However, as Madison pointed out, the article still left it with the States to define treason against themselves. But, said Ellsworth, there can be no danger to the general authority from this; as the laws of the United States are to be paramount." It must have been on this same occasion that Luther Martin introduced the motion which he tells us of in his "Genuine Information," providing “that no act or acts done by one or more of the States against the United States, or by any citizen of any one of the United States under the authority of one or more of the said States, shall be deemed treason or punished as such, but in case of war being levied by one or more of the States against the United States, the conduct of each party towards the other and their adherents respectively, shall be regulated by the laws of war and of na 66 tions." Needless to say, this proposition did not meet the views of the Convention.2 And equally instructive of the intentions of the Convention was the failure on August 30, of an attempt of the State-rights contingent to substitute the word "insurrection" of the militia clause, for the quite distinct phrase "domestic violence" of what is to-day Article IV, section 4, of the Constitution. The purpose of the attempt is, of course, palpable: it was to confine by implication the right of the National Government in the use of the militia to those cases where application came from the State authorities themselves for military aid. But the salient fact is that this attempt failed. Nevertheless, seventy years later, in his remarkable Opinion of November 20, 1860,3 dealing with the power of the United States to enforce its laws within a State that should pretend to have seceded from the Union, Attorney-General Jeremiah Black rendered an interpretation of the militia clause exactly annulling the action of the Convention. This clause, he contended, and related provisions of the Constitution "are made to protect the States," wherefore"to send a military force into any State with orders to act against the people would be simply making war upon them" and would effect the expulsion of such State from the Union. And it is essentially the same point of view, of course, that dominates Buchanan's Message of De2 Ib., III, 223. 9 Ops. 517. 4 cember 3, 1860, where, moreover, the source of the noxious fallacy is revealed: namely, the Virginia Resolutions of 1798. Fortunately for the nation, both Buchanan and Black, in their endeavor to cling to this fetich of the State-rights school, had ignored some much more authoritative constructions of the Constitution to wit, the fact that in 1794, at the time of the Whisky Rebellion, Congress had, by almost unanimous vote, authorized the President to send militia into the State of Pennsylvania without waiting for action by that State; the fact that in 1832, in his famous Proclamation to the People of South Carolina, President Jackson had asserted the right of the United States as a government, to take all needful measures in defense and in enforcement of its powers upon all persons within its jurisdiction; and-mirabile dictu-the fact that in 1809, the very author of the Virginia Resolutions, then President of the United States, had warned the Governor of Pennsylvania of the "painful issue" that must arise, should that State persist in its attempts to prevent the enforcement of the recent decisions. of the Supreme Court in United States v. Peters! 5 But, indeed, upon this point, as upon most other essential points, when it is not read "under the prepossession of some abstract theory of the rela 4 Richardson, X, 626. 5 Cr. 136; Marshall's decision disposes of the Doctrine of Nullification absolutely. For Madison's communications see Amer. St. Papers," Misc. II, 12. For Pennsylvania's attitude see Ames, "State Papers," Nos. 23-5. |