The American Commonwealth. Viscount James Bryce
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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, being itself the creature of the Constitution, 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 will 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 for members of the House of Representatives.1 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, at least nine states now allow aliens (i.e., foreigners not yet naturalized) to vote; and nine2 states admit women to vote at all state elections, thereby admitting them to vote also at congressional and presidential elections.3 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.” 4
II. The federal Constitution deprives the states of certain powers they would otherwise enjoy. Some of these, such as that of making treaties, are obviously unpermissible, and such as the state need not regret.5 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.6 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.7
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 former prevails 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. Formerly, in the exercise of this power, it passed bankruptcy laws. When these were repealed, the subject was left to the state laws;8 and still later, in 1898, Congress again legislated on the subject, depriving these state laws of their force.9 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.
It was remarked in the last chapter that in determining the 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 would conflict with legitimate federal authority.10 On the other hand, the presumption is always against Congress, and to show that it can legislate, some positive grant of power to Congress in the Constitution must be pointed out.11 When the grant is shown, then the act of Congress has, so long as it remains on the statute book, all the force of the Constitution itself. In some instances the grant of power to Congress to legislate is auxiliary to a prohibition imposed on the states. This is notably the case as regards the amendments to the Constitution, passed for the protection of the lately liberated Negroes. They interdict the states from either recognizing slavery, or discriminating in any way against any class of citizens; they go even beyond citizens in their care, and declare that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” Now, by each of these amendments, Congress is also empowered, which practically means enjoined, to “enforce by appropriate legislation” the prohibitions laid upon the states. Congress has done so, but some of its efforts have been held to go beyond the directions of the amendments, and to be therefore void.12 The grant of power has not covered them.
Where the president interferes with a state, he does so either under his duty to give effect to the legislation of Congress, or under the discretionary executive functions which the Constitution has entrusted to him. So if any state were to depart from a republican form of government, it would be his duty to bring the fact to the notice of Congress in order that the guarantee of that form contained in the Constitution might be made effective. If an insurrection broke out against the authority of the Union, he would (as in 1861) send federal troops to suppress it. If there should be rival state governments, each claiming to be legitimate, the president might, especially if Congress were not sitting, recognize and support the one which he deemed regular and constitutional.13
Are these, it may be asked, the only cases