CHAPTER XXVIII WORKING RELATIONS OF THE NATIONAL AND THE STATE GOVERNMENTS THE characteristic feature and special interest of the American Union is that it shows us two governments covering the same ground yet distinct and separate in their action. It is like a great factory wherein two sets of machinery are at work, their revolving wheels apparently intermixed, their bands crossing one another, yet each set doing its own work without touching or hampering the other. To keep the National government and the State governments each in the allotted sphere, preventing collision and friction between them, was the primary aim of those who formed the Constitution, a task the more needful and the more delicate because the States had been until then almost independent and therefore jealous of their privileges, and because, if friction should arise, the National government could not remove it by correcting defects in the machinery. For the National government had not been made supreme and omnipotent. It was itself the creature of the Constitution. It was not permitted to amend the Constitution, but could only refer it back for amendment to the people of the States or to their legislatures. Hence the men of 1787, feeling the cardinal importance of anticipating and avoiding occasions of collision, sought to accomplish their object by the concurrent application of two devices. One was to restrict the functions of the National government to the irreducible minimum of functions absolutely needed for the national welfare, so that everything else should be left to the States. The other was to give that government, so far as those functions extended, a direct and immediate relation to the citizens, so that it should act on them not through the States but of its own authority and by its own officers. These are fundamental principles whose soundness experience has approved, and which well deserve to be considered by those who in time to come may have in other countries to frame federal or quasi-federal constitutions. They were studied, and to a large extent, though in no slavish spirit, adopted by the founders of the present constitution of the Swiss Confederation, a constitution whose success bears further witness to the soundness of the American doctrines. The working relations of the National government to the States may be considered under two heads, viz. its relations to the States as corporate bodies, and its relations to the citizens of the States as individuals, they being also citizens of the Union. The National government touches the States as corporate commonwealths in three points. One is their function in helping to form the National government; another is the control exercised over them by the Federal Constitution through the Federal courts; the third is the control exercised over them by the Federal Legislature and Executive in the discharge of the governing functions which these latter authorities possess. I. The States serve to form the National government by choosing presidential electors, by choosing senators, and by fixing the franchise which qualifies citizens to vote VOL. I 2 F for members of the House of Representatives. No difficulty has ever arisen (except during the Civil War) from any unwillingness of the States to discharge these duties, for each State is eager to exercise as much influence as it can on the national executive and Congress. But note how much latitude has been left to the States. A State may appoint its presidential electors in any way it pleases. All States now do appoint them by popular vote. But during the first thirty years of the Union many States left the choice of electors to their respective legislatures. So a State may, by its power of prescribing the franchise for its State elections, prescribe whatever franchise it pleases for the election of its members of the Federal House of Representatives, and may thus admit persons who would in other States be excluded from the suffrage, or exclude persons who would in other States be admitted. For instance, thirteen States now allow aliens (i.e. foreigners not yet naturalized) to vote; and 2 any State which should admit women to vote at its own State elections would thereby admit them also to vote at congressional elections. The only restriction imposed on State discretion in this respect is that of the fifteenth amendment, which forbids any person to be deprived of suffrage, on "account of race, colour, or previous condition of servitude." 3 II. The Federal Constitution deprives the States of certain powers they would otherwise enjoy. Some of 1 Congress may, if it pleases, regulate by statute the times, places, and manner of holding elections for representatives (Const., Art. i. §4.) 2 So in some States tribal Indians are permitted to vote. It is odd that the votes of persons who are not citizens of the United States might, in a State where parties are nearly equal, turn the choice of presidential electors in that State, and thereby perhaps turn the presidential election in the Union. 3 The Constitutions of some States retain the old exclusion of negroes from the suffrage, and two exclude natives of China; but these provisions are overridden by the fifteenth constitutional amendment. these, such as that of making treaties, are obviously unpermissible, and such as the State need not regret.1 Others, however, seriously restrain their daily action. They are liable to be sued in the Federal courts by another State or by a foreign Power. They cannot, except with the consent of Congress, tax exports or imports, or in any case pass a law impairing the obligation of a contract. They must surrender fugitives from the justice of any other State. Whether they have transgressed any of these restrictions is a question for the courts of law, and, if not in the first instance, yet always in the last resort a question for the Federal Supreme court. If it is decided that they have transgressed, their act, be it legislative or executive, is null and void.2 The President as national executive, and Congress as national legislature, have also received from the Constitution the right of interfering in certain specified matters with the governments of the States. Congress of course does this by way of legislation, and when an Act of Congress, made within the powers conferred by the Constitution, conflicts with a State statute, the 1 As the States had not been accustomed to act as sovereign commonwealths in international affairs, they yielded this right to the National government without demur; whereas Swiss history shows the larger cantons to have been unwilling to drop the practice of sending their own envoys to foreign powers and making bargains on their own behalf. 2 Mr. Justice Miller observes (Centennial Address at Philadelphia) that "at no time since the formation of the Union has there been a period when there were not to be found on the statute books of some of the States acts passed in violation of the provisions of the Constitution regarding commerce, acts imposing taxes and other burdens upon the free interchange of commodities, discriminating against the productions of other States, and attempting to establish regulations of commerce, which the Constitution says shall only be done by Congress." All such acts are of course held invalid by the courts when questioned before them. It has very recently been held that a State cannot forbid a common carrier to bring into its jurisdiction intoxicating liquors from another State (Bowman v. C. & N. W. Rly. 125 U.S.) former prevails against the latter. against the latter. It prevails by making the latter null and void, so that if a State statute has been duly passed upon a matter not forbidden to a State by the Constitution, and subsequently Congress passes an act on the same matter, being one whereon Congress has received the right to legislate, the State statute, which was previously valid, now becomes invalid to the extent to which it conflicts with the Act of Congress. For instance, Congress has power to establish a uniform law of bankruptcy over the whole Union. It has formerly, in the exercise of this power, passed bankruptcy laws; but these have been repealed, and at present the subject is left to the State laws, which are accordingly in full force in the several States.1 Were Congress again to legislate on the subject, these State laws would lose their force; and if the law passed by Congress were again repealed, they would again spring into life. The field of this so-called concurrent legislation is large, for Congress has not yet exercised all the powers vested in it of superseding State action. the 2 It was remarked in last chapter that in determining powers of Congress on the one hand and of a State government on the other, opposite methods have to be followed. The presumption is always in favour of the State; and in order to show that it cannot legislate on a subject, there must be pointed out within the four corners of the Constitution some express prohibition of the right which it prima facie possesses, or some implied prohibition arising from the fact that legislation by it 1 The lawyer may refer on this subject to the interesting case of Sturges v. Crowninshield, 4 Wheat. 196. 2 And in this instance they would lose their force altogether, because the power of Congress being to establish a "uniform" law, the continued existence of statutes differing in the different States would prevent the law of bankruptcy from being uniform over the Union. |