The
Essentials of American
Constitutional Law
By
Francis Newton Thorpe, Ph.D. LL.D.
(Of the Pennsylvania Bar)
Professor of Political Science and Constitutional Law
University of Pittsburgh
“It is a Constitution we are expounding.”—_John Marshall_
G. P. Putnam’s Sons
New York and London
The Knickerbocker Press
COPYRIGHT, 1917
BY
FRANCIS NEWTON THORPE
[Illustration]
Made in the United States of America
* AD * JUVENES *
* LEGUM * STUDIOSOS *
* QUANDO *
* ADVOCATOS * JUDICES *
* LEGISLATORES *
* HODIE *
* ANNORUM * AMICOS *
* HIC * LIBELLUS *
* DEDICATUS *
PREFACE
The principles of American constitutional law are the foundation of
all judicial decisions, and it is (as Marshall observes) “the province
and duty of the Courts to say what the law is.” Judicial decisions,
however, are technical, are handed down by experts, and set forth
authoritatively as results of experience which the junior student of
the law is likely to find difficult, if not incomprehensible. But
to attempt merely to simplify the law, or its interpretation by the
Courts, is likely to result in variation from the original spirit and
purpose of the law: because decisions are essentially a reduction of
questions at issue to a principle, and laws themselves are (or ought to
be) simple, clear, comprehensive, and complete.
For purposes of study or instruction it is necessary to bring the
principle involved in a law (be it the Supreme Law of the Land,—that
is, the Constitution, a Treaty, or an Act of Congress; or a State
Constitution, or an Act of a State Legislature) within the compass of
a principle, or a fundamental, by examination of an issue, or issues,
in which the principle is involved. There must ever be before the Court
the issue _and_ the law, and the law itself may be an issue, in the
American system of government which recognizes the authority of the
Court to pass on the constitutionality of the law.
But principles are not numerous. Possibly in Nature there is but one
basic principle and all our so-called “natural laws” are but aspects
of that principle as the human mind conceives or recognizes it. The
analogy in government permits the assertion that the principles of
constitutional law are few. Possibly they are severally aspects of one
principle: that of sovereignty. To the student of the law, especially
to junior students, principles are matters of memory rather than of
understanding. It is a vigorous and essentially mature mind that can
reduce a complex issue to such simple form as to deduce the principle
on which it rests.
Books on American constitutional law should be simple, comprehensive,
authoritative, and specially adapted to the conditions under which the
subject is pursued. In later years the subject is usually approached
through two books: a treatise on constitutional law, and a book
(collection) of leading cases illustrative of the principles involved.
The tendency is toward bulky volumes. Meanwhile other subjects than
constitutional law,—other branches of the law,—must be pursued.
Multiplicity of subjects is characteristic of the curriculum whether
at Law School or at College or University. Time is brief: studies
are many. The necessary result is concentration upon the essentials
of a subject,—careful isolation of its principles together with
familiarity with authoritative illustrations of their application.
This means a small, compact, authoritative book on the subject. There
are few principles,—there are innumerable applications of them. Values
are twofold,—perception of the principle, and understanding of its
application. The question is not “What principle?” but rather, “What
application?” Thus the student of law may wisely be led to consider, to
weigh, to study the great or the leading application of a principle:
that is, he is properly directed to the important decisions of the
Courts of Law. In America, these decisions are handed down by the
Supreme Courts of States and the Supreme Court of the United States.
From these decisions the principles of our constitutional law may be
derived. Great writers, like Hamilton, Madison, Kent, Story, or Cooley,
must be listened to: but it is the Court of Law that speaks with
authority. Our great writers on constitutional law and our great judges
sitting as Courts of Law practically agree as to what comprise the
principles of our constitutional law.
Whether the principles of the law are reached by induction or by
deduction does not affect the principles. Judicial decisions illustrate
both methods of approach. Stated broadly,—a treatise on constitutional
law sets forth its principles and cites decisions as illustrations of
their application; a collection of cases provides many illustrations
from which the principles may be, or are, deduced. By combining the
treatise and the case-book (and the present volume may be used in
connection with any of the current “Collections” of “Leading Cases”)
the benefits of both methods,—deductive and inductive,—are realized.
Whether the two sorts of books are used together, or in succession,
must depend upon the time, the place, and the importance assigned to
the subject itself. Highly beneficial results have followed when a
first semester has been given to the treatise, and a second to the
cases, whether in a “Collection” (of which there are several of highest
value now in use), or in the original “Reports.”
But constitutional law is more than a technical subject for a Law
School: it is a branch or part of the study of government,—of political
philosophy so-called. It is a branch of “Politics” as Aristotle
uses that word. Hence it is also a “culture” study, entitled to a
respectable place in the curriculum of College or University. But
as such a study, it must also be pursued as are other branches of
philosophy. Whatever part it has as dialectics it also has part in
the interpretation of the government,—of the sovereignty behind that
government,—under which we live. The difficulties of constitutional law
are also the difficulties of government and of philosophy itself.
Shall the college man leave college with a fair knowledge of
the principles of the Supreme Law under which he lives? That is
the question. Whatever book or books or method best brings that
consummation is the best.
F. N. T.
_University of Pittsburgh._
CONTENTS
CHAPTER I.
PAGE
THE SUPREME LAW 1
CHAPTER II.
THE LAW OF LEGISLATIVE POWERS (1) 18
CHAPTER III.
THE LAW OF LEGISLATIVE POWERS (2) 33
CHAPTER IV.
THE LAW OF TAXATION 51
CHAPTER V.
THE LAW OF COMMERCE 63
CHAPTER VI.
THE LAW OF CONTRACTS AND PROPERTY 89
CHAPTER VII.
THE LAW OF THE EXECUTIVE POWER 102
CHAPTER VIII.
THE LAW OF JUDICIAL POWER 113
CHAPTER IX.
THE LAW OF STATE COMITY, TERRITORIES, AND POSSESSIONS 146
CHAPTER X.
THE LAW OF LIMITATIONS 164
CHAPTER XI.
THE LAW OF FUNDAMENTAL RIGHTS 191
CHAPTER XII.
THE LAW OF CITIZENSHIP 212
THE CONSTITUTION OF THE UNITED STATES 230
CASES CITED 265
INDEX 273
The Essentials of American
Constitutional Law
CHAPTER I
THE SUPREME LAW
1. The supreme law of the land is the Constitution, and acts of
Congress and treaties made under its authority. By this supreme law
the judges in every State are bound, “anything in the constitution or
laws of any State to the contrary notwithstanding.” All legislative,
executive, and judicial officers both of the United States and of
the several States are bound by oath or affirmation to support the
Constitution, and in our actual government, every administrative
official, State or national, is bound in like manner.[1] Aliens
becoming American citizens by naturalization,—by which they disavow
allegiance to any other sovereignty,—solemnly bind themselves, by
oath or affirmation, to support the Constitution. Every citizen is
impliedly under oath to support the Constitution.
2. Such supremacy of the Constitution is essential to American
sovereignty. The people of the United States ordained and established
this supreme law. They are sovereign. The oath or affirmation to
support it is the formal and sovereign promise of fidelity to that
sovereign, to any sovereign, or quasi-sovereign,—for example, to
England, France, or a State in the American Union. The supreme law of a
sovereignty,—its “constitution,” may be written, like ours, or partly
unwritten, as the British constitution. The essential fact is of the
supremacy of the law because of the sovereignty of the law-giver.
3. The laws of the United States are made by Congress and the
President, or by Congress alone over his veto.[2] The laws of a State
are made by its legislature and governor, or by the legislature
alone over his veto; but Congress, the President, State legislature
and governors are only agents of their sovereign: they possess
_derivative_, not _original_, powers; they _represent_ sovereignty. The
American sovereign is “We the People” of the United States, and for
many purposes, “We the People” of the respective States. All government
in America is representative government. The sovereign makes laws
through its agents or representatives. No other method is possible in
a sovereignty conceived and operating as ours. Whether the law thus
formulated be a constitution,—national or State,—an act of Congress or
of Assembly, it is an expression, on the principle of agency, of the
will of the sovereign. The Convention that frames a constitution is an
agent of sovereignty; the Congress or State Legislature that enacts a
law is an agent of that sovereignty, and that sovereignty prescribes
through its agents the method of ratifying and administering that law.
Through other agents, e. g., the judiciary, that sovereignty interprets
constitutions and laws.[3] Legislative, executive, judicial, and
administrative officials constitute the governmental group, the public
servants to whom, for a term, the sovereign delegates some of its
powers. The members of this group are agents of the sovereign and are
answerable to that sovereign as is the agent to his principal.
4. Madison, in _The Federalist_, states the whole case: A republic is
a government which derives all its powers directly or indirectly
from the great body of the people, and is administered by persons
holding their offices during pleasure, for a limited period, or
during good behavior. It is essential to such a government that
it be derived from the great body of the society, not from an
inconsiderable proportion, or a favored class; otherwise a handful
of tyrannical nobles, exercising their oppressions by a delegation
of their powers, might aspire to the rank of republicans, and
claim for their government the honorable title of republic. It is
sufficient for such a government that the persons administering
it be appointed, either directly or indirectly, by the people, and
that they held their appointments by either of the tenures just
specified; otherwise every government in the United States, as well
as every other popular government that has been or can be well
organized or well executed, would be degraded from the republican
character.[4]
5. The supreme law of the land represents the will of the people of the
United States for purposes of government. The authority of that law
is derived wholly from the people. They may change or amend it at any
time. They prescribe the procedure for such change or amendment.[5]
Through this supreme law the entire public business is carried on. The
constitution of Massachusetts sets forth the essential fact:
All power residing originally in the people, and being derived from
them, the several magistrates and officers of government, vested
with authority, whether legislative, executive, or judicial, are
their substitutes and agents, and are at all times accountable to
them.[6]
The distinction between original and derivative powers made by the
constitution of Massachusetts is true of the supreme law of the United
States.
6. The quality of supremacy involves and implies sovereignty.
Sovereignty is indefinable; is not, strictly speaking, comprehensible.
There is therefore a difference between sovereignty and government.
Sovereignty ordains and establishes a form of government. The form
varies among different peoples and at different times. The Constitution
declares that “The United States guarantees to every State in this
Union a republican form of government.”[7] This form, in America, is
the creation, that is, the creature, of the sovereign, the people. The
essential matter here is of powers and relations, and is made clear by
Chief Justice Marshall: The government of the United States proceeds
directly from the people; is ordained and established in their name
for definite purposes declared in the Preamble to the Constitution,
and the assent of the States in their sovereign capacity is implied in
calling the Convention of 1787, which framed the Constitution, and in
submitting that instrument to the people. The people were at perfect
liberty to accept or to reject it, and their act was final. It required
not the affirmance and could not be negatived by the State governments.
When thus adopted, the Constitution was of complete obligation, and
bound the State sovereignties.[8] But had not the people of America, in
1787, already surrendered all their powers to the State sovereignties
and had nothing more to give? The question whether they may resume
and modify the powers granted to their government cannot be raised in
this country. The people always possess that power and since 1787 they
have exercised it in making seventeen amendments to the Constitution.
The legitimacy of the general government might be doubted had it been
created by the States, for the States, as governments, are creations of
the people, and possess only derivative powers. “The powers delegated
to the State sovereignties were to be exercised by themselves, not by a
distinct and independent sovereignty created by themselves.” The States
were competent to form a league, such as was the Confederation of 1781,
but when “in order to form a more perfect Union” it was deemed
necessary to change this alliance into an effective government,
possessing great and sovereign powers, and acting directly on
the people, the necessity of referring it to the people, and of
deriving its powers directly from them, was felt and acknowledged
by all. The government of the Union is emphatically and truly a
government of the people. In form and substance it emanates from
them. Its powers are granted by them and are to be exercised
directly on them, and for their benefit. This government is
acknowledged by all to be one of enumerated powers. But the
question respecting the extent of the powers actually granted is
perpetually recurring, and will probably continue to arise as long
as our system shall exist. The government of the Union, though
limited in its powers, is supreme within its sphere of action.[9]
This supremacy results from the nature of the government.
It is the government of all; its powers are delegated by all; it
represents all, and acts for all. Though any one State may be
willing to control its operations, no State is willing to allow
others to control them. The nation, on those subjects on which
it can act, must necessarily bind its component parts. But this
question is not left to mere reason; the people have in express
terms decided it by saying, this Constitution and the laws of the
United States which shall be made in pursuance thereof, and all
treaties made under its authority, shall be the supreme law of
the land, and by requiring executive, legislative, judicial (and
administrative) officers to take the oath of fidelity to it.[10]
7. The question of sovereignty arises here and, as commonly stated, of
national sovereignty and of State sovereignty. The equal vote allowed
each State by the Constitution,[11] “is at once a recognition of the
portion of sovereignty remaining in the individual States, and an
instrument for preserving that residuary sovereignty.”[12] Are there
two sovereignties in America?
The sovereignty of a State [declares Marshall], extends to
everything which exists by its authority, or is introduced by its
permission; but does not extend to these means which are employed
by Congress to carry into execution powers conferred on that
body by the people of the United States. These powers are not
given by the people of a single State, but by the people of the
United States to a government whose laws, made in pursuance of the
Constitution, are declared to be supreme. Consequently, the people
of a single State cannot confer a sovereignty which will extend
over them.[13]
8. The exercise of the taxing power illustrates the principle here
involved. The power of taxation residing in a State measures the extent
of sovereignty which the people of a single State possess, and can
confer on its government.
We have a principle (here) [continues Marshall], which leaves the
power of taxing the people and property of a State unimpaired;
which leaves to a State the command of all its resources, and which
places beyond its reach all these powers which are conferred by
the people of the United States on the government of the Union,
and all these means which are given for the purpose of carrying
these powers into execution. We have a principle which is safe for
the States and safe for the Union.... The people of the United
States did not design to make their government dependent on the
States. The government of the Union possesses general powers of
taxation.... The people of all the States and the States themselves
are represented in Congress, and by their representatives exercise
this power. When they tax the chartered institutions of the States,
they tax their constituents and these taxes must be uniform.[14]
But when a State taxes the operations of the government of the
United States, it acts upon institutions created not by their own
constituents, but by people over whom they claim no control. It
acts upon the measures of a government created by others, as well
as themselves; for the benefit of others in common with themselves.
The difference is that which always exists, and always must exist,
between the action of the whole on a part, and the action of a
part on the whole, between the laws of a government declared to
be supreme, and these of a government which, when in opposition
to those laws, is not supreme.... In America, the powers of
sovereignty are divided between the government of the Union and
those of the States. They are each sovereign with respect to the
objects committed to the other.[15]
Plainly the essential matter here is one of functions. Neither the
government of the United States nor that of a State is sovereign, for
each possesses only delegated powers. But the powers delegated to
the two governments are not for all purposes the same, or of equal
extent. The two governments have different jurisdictions. Distinctively
federal functions are not State functions, as, for example, the
distinctively Federal functions of coining money, making treaties, and
declaring war.[16] On the other hand, distinctively State functions
are the exercise of the police power of the State,[17] the control of
intrastate commerce, the power of extradition between States,[18]
the validity in a State of the public acts, records, and judicial
proceedings of another State[19] and the right of citizens of each
State to all privileges and immunities of citizens in the several
States.[20]
9. The question of the relative sovereignty of the United States and
that of a State is one of jurisdiction, and is determined by extent
of powers delegated, not of original powers possessed. Delegated
powers are expressed in constitutions and laws. Two governments exist
in America: that of the Union and that of the respective States.
The Constitution of the United States was ordained and established
by the people of the United States for themselves, for their own
government and not for the government of the individual States.[21]
The constitution of a State is made by the people of that State for
themselves only. Sovereignty in America has declared the Constitution
of the United States the supreme law of the land, thus formally
relegating State constitutions and laws to inferior rank,—that is, to a
position of powerlessness when in conflict with the supreme law. Thus
when we speak of two “sovereignties,” or of “residuary sovereignty,”
we really mean “two governments of delegated powers,”—that is, the
State governments and the national government. When we speak of the
two sovereignties, we do not mean _sovereignty_ (which is by nature
indivisible), but _government_ (which is divisible), the creation of
sovereignty and, unlike sovereignty, possesses only delegated powers.
10. For administrative purposes, or, stating the case in other words,
for legal reasons and in harmony with precedents in law, the terms
“sovereignty” and “residuary sovereignty” continue in use among
lawyers, judges, political writers, and civil officials; but government
is not, never was, and in such a country as ours, never can be
sovereignty. American constitutional law is law made by authority of
the sovereign people: the law of the United States is made by Congress,
the authorized legislative agent of the people of the United States:
the law of the State, is made by its Legislature, the authorized
law-making agent of the people of the State. The same essential may be
stated after the manner of Chief Justice Marshall as the law of the
whole: the Nation; the law of the part, the State. Government is the
child of sovereignty.
11. Because of the sovereignty of the people of the United States, and
consequently, of the supremacy of the Constitution, several results
follow:
Madison expresses one of these in _The Federalist_[22]:
The idea of a national government involves in it not only an
authority over the individual citizens, but an indefinite
supremacy over all persons and things, so far as they are objects
of lawful government.
Marshall expresses other results,—
The general government, though limited as to its objects, is
supreme with respect to these objects. This principle is a part
of the Constitution. To this supreme government ample powers are
confided. With the ample powers confided to this supreme government
are connected many express and important limitations on the
sovereignty of the States.[23]
Hamilton, commenting on the Constitution, declares that “the national
and State systems are to be regarded as one whole.”[24] And finally,
although our supreme law does not contain the word “sovereign,” or
“sovereignty,” it implies sovereignty. The crowning illustration of
this principle of implied sovereignty grew out of the acquisition of
Louisiana in 1803. President Jefferson could find no provision of the
Constitution specifically empowering the United States to make the
acquisition, or to incorporate the region into the United States. He
therefore proposed amending the Constitution so as to authorize the
purchase. The President’s doubts of the power of the United States to
acquire Louisiana were weaker than his doubt of power to incorporate
the province into the United States,—that is, to make a foreign
province or provinces inhabited, by an alien people, partakers in
an American Commonwealth. He consulted his Cabinet. Levi Lincoln,
the Attorney-General, was of opinion that to share the privileges
and immunities of the people of the United States with a foreign
population required the consent of the people of the United States, and
he suggested that if a treaty of cession were made, containing such
agreements, it should be put in the form of a change of boundaries
instead of a cession, so as to bring the territory within the United
States. Albert Gallatin, Secretary of Treasury, replied that to him it
appeared: (1) That the United States as a nation have an inherent right
to acquire territory; (2) That whenever that acquisition is by treaty,
the same constituted authorities in which the treaty-making power
is vested have a constitutional right to sanction the acquisition;
and (3) That whenever the territory has become acquired, Congress
have the power either of admitting it into the Union as a new State,
or of annexing it to a State, with the consent of that State, or of
making regulations for the government of such territory.[25] Thus,
according to Gallatin, the United States, by its very nature, has the
undoubted right to acquire, to hold, and to govern territory as a
possession.[26] Twenty-five years after the purchase of Louisiana,
Chief Justice Marshall handed down the decision of the Supreme Court,
that “the Constitution confers absolutely on the government of the
Union the powers of making war and of making treaties; consequently
that government possesses the power of acquiring territory, either
by conquest or treaty.”[27] In this decision, Marshall reasons as
did Gallatin that a nation is by its very nature, sovereign, and
possesses the powers and functions of sovereignty. When the American
nation, a sovereign, created a government of delegated powers, under
the Constitution, it delegated to that government powers adequate to
its purposes as a nation.[28] The essential purpose of sovereignty
is to continue sovereign. The word “sovereign” though not occurring
in the Constitution is necessarily implied as a permanent quality or
mark of the power that ordained and established the Constitution.
Sovereignty cannot be delegated, but a supreme law, such as the
Constitution, necessarily implies a sovereignty that has delegated
the powers expressed or implied in the Constitution itself. In other
words, the Constitution of the United States is the supreme law of
the land because the people of the United States are a sovereign.
Sovereignty alone has original powers; all others are delegated. Thus
the Constitution itself 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.”[29]
12. American constitutional law is, therefore, the authoritative
formulation, in constitutional, or statutory, or treaty form, of
the will of the sovereign, the people of the United States. This
formulation accords with the powers delegated by that sovereign. The
expression of this delegation of powers in the conduct of the public
business is government. Therefore in America, government is another
word for the delegation of powers,—for limitations of authority.
Sovereignty is unlimited; government is limited. The Constitution of
the United States is the supreme law of the land because through it the
people of the United States,—not the people of any particular State or
group of States,—have delegated larger powers than have the people of
any particular State through its constitution. The whole is greater
than the part. “That the people have an original right to establish for
their future government such principles as, in their opinion, shall
most conduce to their own happiness, is the basis on which the whole
American fabric has been erected.”[30] The exercise of this original
right is an exercise of sovereignty. The result of this exercise,
in America, is the Constitution of the United States which, this
sovereignty declares to be “the supreme law of the land.”[31]