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THE SUPREMACY OF FEDERAL AUTHORITY
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 proper places. . For the manner in which the Federal supremacy is in practice maintained, especial reference may, however, be made to the chapters and sections dealing with the immunity of Federal agencies from State taxation; the power of the Supreme Court to review decisions of State courts adverse to privileges, rights, and immunities claimed under the Federal Constitution, treaties or laws; the removal of cases from State to Federal courts; the issuance by Federal courts of writs of habeas corpus directed to State officials; and the independence of Federal courts from State interference or control. It will, however, be appropriate to refer here to certain cases in which the supremacy of the Federal authority has been broadly stated and under circumstances which have given especial weight and importance to the assertion.
In general it may be stated that in no instance has the Supreme Court failed to assert the supremacy of the Federal power when its authority has been attacked by the States. Only four years after the adoption of the Constitution the court upheld its right under the Constitution as it then stood, i. e., before the adoption of the Eleventh Amendment, 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.3 In Calder v. Bull 4 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 5 this action became necessary and the doctrine was applied, Chief Justice Marshall, speaking for the unanimous court, saying: “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."
1 Chisholm v. Georgia, 2 Dall. 419; 1 L. ed. 440. 2 3 Dall. 54; 1 L. ed. 507.
3 Dall. 199; 1 L. ed. 568. 43 Dall. 386; 1 L. ed. 648.
In 1810 and 1812 State laws were again held void by the Supreme Court because in conflict with the Federal Constitution. Finally, in the great case of McCulloch v. Maryland,' 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 though that agency be one of convenience only 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.”
In Martin v. Hunter's Lessee,& decided in 1816, and in Cohens v. Virginia, 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.”
55 Cr. 115; 3 L. ed. 53.
6 Fletcher v. Peck, 6 Cr. 87; 3 L. ed. 162; New Jersey v. Wilson, 7 Cr. 164; 3 L. ed. 303.
74 Wh. 316; 4 L. ed. 579. 8 1 Wh. 304; 4 L. ed. 97.
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, anything 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 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
96 Wh. 264; 5 L. ed. 257.
repelling it. ... 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 widsom to attempt. We think they have attempted it.”
The importance of the doctrine thus emphatically declared in these two cases it is impossible to exaggerate. This the upholders of States' Rights clearly saw, and Calhoun later wrote: “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.” 10 E: 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
10 Discourse on the Constitution and Government of the United States, Works, I, 338.