any statutory prohibition, although without express statutory authority.18 There is a peace of the United States as well as a peace of each individual State.19 The United States have the power to provide by law for the punishment of every attempt to impede the exercise of any of their functions 20 or to deprive any of their citizens of any right 21 which is guaranteed by the Federal Constitution. "The government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent." 22 "The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights intrusted by the Constitution. to its care." 23 The United States have the right of self-protection, which includes the right of self-defense. § 41. State Sovereignty and State Rights. The several States are still called sovereign in some opinions of the courts1 as well as common parlance; but, as has been shown, they are not sovereign within the definition given to the term by the jurisprudents.2 They have none of the rights of sovereignty in transactions with foreign nations. They possess but a single power, the right of equal suffrage in the Senate, of which they cannot be deprived by three-fourths of the members of the Union.4 18 Ibid. 19 Ex parte Siebold, 100 U. S., 371, 395; In re Neagle, 135 U. S., 1, 69; Logan v. U. S., 144 U. S., 263, 295; In re Quarles, 158 U. S., 532, 535. 20 McCulloch v. Maryland, 4 Wheat., 316, 417, 418; U. S. v. Marigold, 9 How., 560; Ex parte Siebold, 100 U. S., 371; Ex parte Yarbrough, 110 U. S., 651, 658. See the subsequent chapter upon the Implied Powers of Congress. 21 U. S. v. Cruikshank, 92 U. S., 542, 552; U. S. v. Coombs, 12 Peters, 72, 78; Ex parte Yarbrough, 110 U. S., 651; U. S. v. Waddell, 112 U. S. 76; Logan v. U. S., 144 U. S., 263. See the subsequent chapter upon the Implied Powers of Congress. 22 Ex parte Siebold, 100 U. S., 371, 395, per Mr. Justice Bradley. 23 Mr. Justice Brewer, In re Debs, 158 U. S., 564, 582. § 41. 1 Mr. Justice Bradley in Hans v. Louisiana, 124 U. S., 1, 21. Compare the language of Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton, 264, 414. 2 Supra, § 39. 8 Constitution, Article I, Section 10: New Hampshire v. Louisiana, 108 U. S., 76, 90; supra, § 40. 4 Constitution, Article V. 6 And they can use no powers which clash with the exercise of any vested by the Constitution in the United States.5 Their jurisdiction is, moreover, limited in other respects by the same instrument. They are forbidden to interfere with the foreign relations of the Union; and to coin money, and emit bills of credit. They cannot grant titles of nobility, or establish a form of government which is not republican, or assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave,10 or pass a bill of attainder or ex post facto law,11 or deny or abridge the right of citizens of the United States to vote on account of race, color or previous condition of servitude, 12 or abridge the privileges or immunities of citizens of the United States,13 or deny to the citizens of the other States the privileges and immunities which they allow to their own citizens,14 or authorize slavery or involuntary servitude except as a punishment for a crime after conviction,15 or deny to any person within their jurisdiction the equal protection of their laws.16 They are compelled to respect contractual rights 17 and all other rights to property.18 They cannot make anything but gold and silver coin a tender in payment of debts, or pass any law impairing the obligation of contracts,19 or deprive any person of life, liberty or property without due process of law.20 They are directed to deliver fugitives from the justice of another State to the executive thereof upon his demand.21 Their courts are obliged to respect the public acts, records and judicial proceedings of the other States. And they are amenable to the jurisdiction of the Supreme Court of the United States in suits by other States of the Union, foreign States and the United States.23 In other respects each State has full and complete jurisdiction and all the attributes of sovereignty over every thing and person within its borders. "The powers not delegated to the States by the Constitution nor prohibited by it to the States are reserved to the States respectively, or to the people." 24 The domain of a State includes the regulation of the domestic relations of its citizens, including marriage, divorce, and other sexual relations, 25 adoption and the rights of parents over their children,26 education,27 inheritance and the acquisition of property within its borders, by bequest or devise, including the right to forbid a devise of land therein to the United States; 28 the title to real and personal property within its jurisdiction; 29 all its internal commerce and manufactures, including the prohibition of the manufacture of an article intended for export,30 and full control over monopolies of manufacture, commerce and other business which are confined within its limits; 31 and those numerous necessary regulations for the preservation of health,32 property, and morals, the maintenance of order, and the adjustment of rights to property held in common,36 which are usually classified under the police powers. Each State has absolute control over the structure of its internal government and the right to local self-government without interference by the United States, provided that it preserves the 35 24 Ibid., Tenth Amendment. 25 Hunt v. Hunt, 131 U. S., Appendix elxv.; Maynard v. Hill, 125 U. S., 190; Pace v. Alabama, 106 U. S., 583; Green r. State, 58 Ala., 190; s. c., 69 Ala., 231; Ex parte Kinney, 3 Hughes, 1; Ex parte François, 3 Woods, 367; François v. State, 9 Tex. App., 144. In re Burrus, 136 U. S., 586. 27 Bertonneau v. City Directors, 3 Woods, 177; People ex rel. King v. Gallagher, 93 N. Y., 438; Commonwealth r. Denis, 10 Weekly Notes (Pa.), 156; Lehew v. Brummell, 103 Mo., 546; State ex rel. Garner v. McCann, 21 Ohio St., 198; Cary v. Carter, 48 Ind., 328; Ward v. Flood, 48 Cal., 36; Chrisman v. Brookhaven, 70 Miss., 477. See, however, Claybrook v. City of Owensboro, 16 Fed. R., 297. 28 U. S. v. Fox, 94 U. S., 315. 33 34 29 U. S. v. Fox, 94 U. S., 315, 320. 30 Kidd v. Pearson, 128 U. S., 1, 20, 21, 22. Cf. Patterson v. Kentucky, 97 U. S., 501. 31 Veazie v. Moor, 14 How., 568, 574; The Slaughter House Cases, 16 Wall., 36; U. S. v. E. C. Knight Co., 156 U. S., 1. 32 Smith v. Alabama, 124 U. S., 465; Powell v. Pennsylvannia, 127 U. S., 678; Plumley v. Commonwealth of Massachusetts, 155 U. S., 461. 33 U. S. v. Dewitt, 9 Wall., 41; Patterson v. Kentucky, 97 U. S., 501. 34 Stone v. Mississippi, 101 U. S., 814. 35 The James Gray v. The John Fraser, 21 How., 184; Vanderbilt v. Adams, 7 Cowen (N. Y.), 349. 606. 36 Wurts v. Hoagland, 114 U. S., republican form and does not infringe the express provisions of the Constitution.37 44 The Constitution, by implication, guarantees to each State its existence and the discharge of its governmental functions, without interference by the United States, except to the extent necessary for the enforcement of the powers granted to Congress. Even in the exercise of such a power the United States cannot impede any of the operations of a State which are essential to its corporate existence.38 Thus they cannot tax the property of a State,9 or the salary of a State officer, or the principal or income of State indebtedness; 41 nor make bills of credit issued by the United States a legal tender in payment of State taxes.42 The Constitution also contains express guaranties of State rights, namely, the right of each State to two senators 43 and at least one representative, and at least three presidential electors 45; the right to have representation in the House of Representatives 46 otherwise apportioned in accordance with population, unless a State for any reason except crime denies the right of suffrage to any of its male inhabitants who are twenty-one years of age, and citizens of the United States, except for crime 47; the right to an apportionment of direct taxation in accordance with population 48; the right to appoint the officers of its militia,49 and to train them according to the discipline prescribed by Congress; 50 the right to recover fugitives from justice who have escaped to other States; 51 the right to have its public acts, records and judicial proceedings respected in other States; 52 the right of its citizens to enjoy the privileges and im 37 Minor v. Happersett, 21 Wall., 162; Murphy v. Ramsey, 114 U. S, 15, 44. 38 The Collector v. Day, 11 Wall., 113; Lane County v. Oregon, 7 Wall., 71; U. S. v. Railroad Company, 17 Wall., 322; Pollock v. Farmer's Loan and Trust Co., 157 U. S., 429. 39 U. S. v. Railroad Company, 17 Wall., 322. 40 The Collector v. Day, 11 Wall., 113. 41 Pollock v. Farmer's Loan and Trust Co., 157 U. S. 429. 42 Lane County v. Oregon, 7 Wall., 71. 43 Constitution, Article V. 49 Ibid., Article I, Section 8. 51 Ibid., Article IV, Section 2. This 54 53 munities of the citizens of the other States where they sojourn ; the right of territorial integrity, at least to the extent of protection from division into two or more States without its consent, and, according to some authorities, to protection against consolidation with other States 55 or the cession of part of its territory to foreign States without its consent; 56 the right to freedom from commercial preferences to the ports of other States, and taxation of its exports imposed by the United States or the States from which they are shipped; 57 the right to a republican form of government, protected by the United States; 58 the right to exemption from suits by citizens of other States or foreign States; 59 and, finally, the right to take part in framing, and to vote upon, amendments to the Federal Constitution.60 The term State sovereignty was a misnomer. It is associated with slavery and secession; and little good can be gained by its use in the controversies of the present or the future. It is otherwise with the doctrine of State rights when correctly understood and properly applied. That had its origin in the rescue by Jefferson of the whole people from the attacks on the liberty of the press which were perpetrated by the Federalists, and aided in freeing the Southern tax-payers from the rapacity of illiterate blacks supported by the bayonets of Grant's army. Now that the whole world is the subject of a struggle for a readjustment of the relations between the employers and employed, in which each calls for the aid of the organized power of society; that the rights of land-owners are overhauled and attempts made to reconstruct them; that even personal property is not exempt from attack; that the change in the condition of women is accompanied by changes in the institution of marriage; and that the State's aid is invoked to assist in solving other social problems; while the preponderance of political power in the 53 Ibid., Article IV, Section 2. 54 Ibid., Article IV, Section 3. 55 Synopsis of lectures on the Constitution of the United States before the School of Law of Cornell University by Ex-Governor Daniel H. Chamberlain, p. 32; a very valuable collection of notes. 56 See the discussion of this subject under the Treaty Power. 57 Constitution, Article I, Sections 9 and 10. 58 Ibid., Article IV, Section 4. 59 Ibid., Eleventh Amendment. 60 Ibid., Article V. |