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DIVISION OF SOVEREIGN POWERS.
it may sometimes be otherwise. The Constitution does not, in making this division between the national Government and the several States, define the extent or full sum of all the powers belonging of right to a sovereign state or nation; or all the power which such a state may rightfully exercise in restraining the action of private persons. And it is not here material to inquire whether the powers vested in the Government of the United States are the only powers belonging to the united people of the States as a preëxisting political unit ; or, in other words, whether the entire residue of sovereign powers, not granted to the Government, is, independently of the Constitution, ultimately vested in the people of all as one, or in the people of the States severally : this depending upon political theories of the antecedent political existence of the States, as before mentioned. It is sufficient in this respect for juridical purposes, that the tenth Article of the Amendments declares that “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.” It has already been shown that since “the people” which in the Constitution appears as the delegating or constituting power had, as a matter of fact, existed in the political capacity of the people of distinct States, and, though united into one nationality, had always acted under forms recognizing such an existence, the powers which are thus declared to be reserved “ to the people” must be held by the people in their several capacity, that is, by the several political persons or bodies known each as the people of a State of the United States, and these reserved powers can therefore, under the present Constitution of sovereignty, be exercised only by each singly in and for its own territory. This is the necessary inference from that recognition of the people which must precede the recognition of the Constitution."
intrusted to the Government of the U. S.; and it is not necessary to deny that the latter is the instrument of the integral American people, in order to maintain that the powers of the State government are equally sovereign in their nature, as is said by Mr. Calhoun, on p. 168; or to hold, with his speech in the Senate, 9th April, 1834, that each State has two Constitutions, i. e., that the State Constitution and the Constitution of the U. S., are Constitutions for the inhabitants by being both co-ordinately derived from the State, or the people of the State.
I Ante, 843.
S 362. There are, however, certain powers belonging to sovereign nationality, necessarily existing somewhere, which, if not granted to the Government nor prohibited to the States, can hardly be said to exist at all in the several States ; or, if existing, they are, by division, very different in effect from the same power used by the people nationally, or as one : a difference arising from physical conditions of territory and situation. For example, the power to acquire foreign territory and to exercise sovereignty over it. For if this power were not invested in the national Government, and if the States were not under the Constitution prevented from exercising it, yet their intrinsic power of acquisition under international law is very different in the hands of the nation acting as one, and in the same people acting as distinct states for that end. The same may be said of that right possessed by every national sovereignty, in some undefined measure, to change the law of nations, when applied in international law regarded as a rule of action for states, but as law in the imperfect sense.
§ 363. The expression of the will of the supreme legislative authority, not that will itself, constitutes the law. From the very nature of sovereign national power, the law, or this expression, is always in a certain sense arbitrary, that is, dependent on that will. But in order that freedom, as the condition of a private person, subject to that will, may be said to have coésistence with law, it is necessary that that law should be a rule of action already to some degree fixed, and not identified with mere arbitrary will. In order that freedom and its opposites may be legal conditions, there must be a previous pablication of the rules of action or the laws which can affect freedom of setion So far as liberty consists in a high degree of guarantee against arbitrary rule, in the sense of ruling without law, it is secured to all under the Constitution of the United States, in reference to the powers in trusted to the National Government, and, tu a less extent, in reference also to the powers of the ser
See ante, $ 38. 2 - La liberte, c'est le troit de faire tout ce qne les lois permettent. *-Mantasien Libertas est potestas faciendiini quod juna liceat-icer.
eral States, by declaring the seat or investiture of all sovereign political power, the establishment of a judiciary, and its independence of the other functions of government.'
§ 364. From the two-fold nature of the Constitution, in being both the evidence of a fact and also the promulgation of a rule of action, the question of the relative extent of the judicial power of the United States is one which is, perhaps, essentially indeterminable. A law in the secondary sense—a state of things exists independently of any superior cause or author, and is maintained in its own existence. The possession of sovereign underived power is proved by itself. The fact of that possession does not result from a rule established by a superior will, but is proved in the actual possession or exercise of that power. But to the vitality of a law which is a rule of action a judicial function is essential. The judiciary, where the investiture of power to promulgate coercive rules of action for private individuals is determined by a law in the primary sense, becomes the test of the extent of that power.
The Government of the United States derives all its powers from a law, properly so called, contained in the written Constitution of the United States. The exercise of any powers by that Government is, therefore, a proper subject of judicial power proceeding from the authors of that law.
On the other hand the States, or the people of the several States, though not each severally possessed of all the powers of sovereignty, yet do, according to the view hereinbefore expressed, 3 hold their powers by right above law, or by a law of their existence, which is law in the secondary sense only, and their possession of those powers is only proved by the Constitution of the United States, as evidence, not derived from it as from a law in the proper sense. But since the Constitution of
"So if the several States create law by their sovereign powers, the judiciary of each State (supposing a republican State Government to exist, having the judicial function of the State separately invested) decides on the validity of laws proceeding from the legislative exercise of the state power.
? That is, its extent as compared with other judicial power, that proceeding from the several States. The extent of the judicial power of the U. S. is described in the Constitution, Art. III. sec. 2.
: Ante, $ 346.
the United States is, in each State, the highest or ultimate rule of positive law for all natural persons not identified with the possessors of sovereignty,' the judiciary, in applying that law, must determine on the powers held by the several States under the Constitution. The extent of the powers of the State Gover ments is, therefore, also primarily, a question under the Constitution of the United States falling within the judicial power.
§ 365. The declaration, that the Constitution of the United States is the supreme law in each State, proceeds from the author of the Constitution, the integral people of the United States. This declaration then has the force of law in each State by the will of the integral people of the United States, not by the several will of the people of the State. Now, to the existence of every law, a judicial function, co-ordinate with the legislative, is essential. If the law is supreme, that judicial function is supreme which emanates from the author of the law, otherwise the law would not be supreme. But the Constitution of the United States is confessed to be the supreme and absolute law, in either characteristic, (i. e., as a rule of action or evidence of the location of power) being based upon the will of the ultimate possessors of sovereign power. If so, the judicial power accompanying this supreme legislative rule, or proceeding from the promulgators of the rule, must also be supreme wherever that rule has extent.
The Constitution declares that the judicial power of the United States shall be vested in a certain judiciary, forming part of the Government constituted by the possessors of ultimate sovereignty. The judicial power of the United States can be nothing else than the power to administer judicially that law which is the supreme rule declared by the constituent people of the United States, and the law being supreme the judicial
Art. VI, 2d clause, “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."
That is, when no reference is made to the State constitution, and when the question is, in fact, what are the powers of the constituent people of a State ?
· Art, III., sec. 1.
power accompanying that law or derived from that people is supreme. And when in the first section it is said, “ the judicial power of the United States shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish,”—though the word supreme cannot, in this connection, be taken to mean judicial supremacy absolutely, or in reference to all judicial administration of the national jurisprudence,' but evidently designates supremacy relatively to the co-existence of inferior courts clothed with the judicial power of the United States, yet, from the nature of the authority on which that jurisprudence rests, the highest judicial court created under this Constitution is supreme in all questions arising under the Constitution. Its supremacy being limited only by the fact that the possession of sovereign powers—those held by the United States and granted to a national Government on the one hand, and, on the other, those held by each State severally—is not the result of a rule contained in the Constitution, but is a fact proved by it.
S.366. The judicial function of the Government of the United States determines, therefore, the recognition of all coercive rules of action for private persons within the limits of the United States ; or, is the final test of all action of that Government affecting liberty or freedom of action, and of the limits of the powers remaining in the several States to affect it. That it has that extent is a necessary inference from the nature of the Constitution as law;? and with reference to this quality of the Constitution must the clause be construed which defines the extent of the judicial power, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution,” which
· Meaning all rules which derive their force from the national will, though they may be applicable by a judiciary deriving its power from one of the several States.
• Ency. Am. VII., (App. by Judge Story,) pp. 581, 582.
• The judiciary thus decides on the powers which may be exercised by the co-ordinate executive and legislative functionaries of the national Government, and by the State Governments; but only when the rights and obligations of private persons, as affected by those powers, come before it in a case. The judiciary cannot, from the nature of the judicial function, decide prospectively on the powers of the executive and legislature or of the State Governments. They must always, in the first instance, judge for theinselves, 1 Kent's Comm. 7th ed. p. 497, 22d Lect. Curtis' Comm. p. 94. Benton's Examination of the Dred Scott case, pp. 3, 4. ,