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THE FEDERAL SUPREMACY AND THE RESERVED RIGHTS
OF THE STATES.
122. The constitutional declaration of the federal supremacy.
122. Section 2 of Article VI of the Constitution
123. The Constitution is the Constitution as origin-
regards all rights and privileges which may properly become subjects of judicial determination. As the three departments of the government of the United States are co-ordinate in authority, and as they are alike bound to obey the Constitution as a paramount rule of action, it follows that each must determine for itself, so far as regards its action in the performance of the duties delegated to it by the Constitution, what the proper construction of that instrument is.
124. The supremacy of any statute of the United States is dependent upon its constitutionality, but an act of Congress will not, on slight implication, or vague conjecture, be judicially determined to be in conflict with the Constitution, for the presumption is always in favour of the constitutionality of a law.? Statutes, which are constitutional in part only, will be upheld by the court so far as they are not in conflict with the Constitution, provided that their constitutional, and their unconstitutional, parts be severable ;3 but when the unconstitutional parts of such a statute are so connected with its general scope, that, should they be stricken out, effect cannot be given to the legislative intent, the other provisions of the statute must fall with them.
125. In the order of supremacy, treaties, duly ratified, are of inferior authority to the Constitution, and to constitutional acts of Congress, but they are of superior authority to state legislation, and where a treaty declares the rights and privileges, which the citizens or subjects of a foreign nation may enjoy in the United States, it, in general, operates by its own force, and does not require the aid of any congressional enactment. While, as respects the rights and obligations of the contracting governments, a treaty is to be regarded as concluded and binding from the date of its signature, yet as respects the effects of the treaty on the rights of citizens of the United States vested before the ratification of the treaty but subsequently to its signature, the treaty is not to be considered as a part of the supreme law of the land until after its ratifications have been exchanged, for the Senate may in process of ratification amend the treaty, and it cannot be known, until it be ratified, what it may command or prohibit. Treaties do not, unless they be in express terms retroactive, affect rights vested, or liabilities incurred, before their ratification.
| Marbury v. Madison, 1 Cr. 137; Norton v. Shelby County, 118 U. S. 442.
? Fletcher v. Peck, 6 Cr. 87; The Legal Tender Cases, 12 Wall. 531 ; U. S. v. Harris, 106 U. S. 629.
: Packet Co. v. Keokuk, 95 U. S. 97.
* Allen v. Louisiana, 103 U. 8. 80; Spraigue v. Thompson, 118 id. 90; U. S. v. Harris, 106 U. 8. 629; The Virginia Coupon Cases, 114 id. 289, 305; Baldwin v. Franks, 120 U. S. 678, 685; The Trade Mark Cases, 100 U. S. 82.
5 The Cherokee Tobacco, 11 Wall. 616; Foster v. Neilson, 2 Pet. 253, 314; The Head Money Cases, 112 U. S. 580; Baldwin v. Franks, 120 id. 678, 703; U. S. v. McBratney, 104 id. 621, 623.
126. A consideration of the cases which have been cited in the preceding chapters of this book leads to the conclusion that the supremacy of the government of the United States, within its constitutional sphere of action, involves: first, the exercise of judicial power by the government of the United States for the purposes of enforcing the rights created by the Constitution, laws,
1 U. S. v. 43 Gallons of Whiskey, 93 U. S. 188; Hauenstein v. Lynham, 100 id. 483.
? Chirac v. Chirac, 2 Wheat. 259 ; Carneal v. Banks, 10 id. 181; Hughes v. Edwards, 9 id. 489, 496; Havenstein v. Lynham, 100 U. S. 483; sed cf. Baldwin v. Franks, 120 U. S. 678.
3 Dana's Wheaton's International Law, 36.
* Art. II, Section 2, of the Constitution requires the advice and consent of the Senate, and the concurrence of two-thirds of the Senators present, to the making of any treaty by the President.
5 U. S. v. Arredondo, 6 Pet. 691, 749; Haver v. Yaker, 9 Wall. 32. 6 Prevost v. Greneaux, 19 How. 1; Frederickson v. Louisiana, 23 How. 445.
and treaties of the United States, of punishing offenses against the laws of that government, and of finally determining the judicial construction of the Constitution, statutes, and treaties of the United States; second, the exemption of all property and agencies of the federal government from state control; and third, the nonexercise by the states of powers clashing with the powers granted by the Constitution to the government of the United States.
1:27. Articles IX and X of the Amendments to the Constitution declare that, “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” . 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.” If these amendments had never been adopted, the construction of the Constitution as a whole would lead inevitably to the conclusion that, in so far as the states are not controlled by the expressed or implied restrictions contained in the Constitution of the United States, they may severally exercise all the powers of independent governments.
128. The nature and extent of the reserved rights of the states must be determined by a process of reasoning by exclusion, involving a statement of the specific constitutional restraints upon freedom of state action, and a conclusion that any state may, so far as the United States are concerned, rightfully exercise every power of government which is not included within the specific restraints thus enumerated. A consideration of the terms of the Constitution and of the effect of the judgments of the court, which have been cited in the preceding chapters of this book, renders it easy to formulate
Supra, Sec. 3.
a statement of the general nature of the constitutional restraints upon the states. By force of those restraints, a state cannot withdraw from the Union, nor deprive itself of its rights as one of the United States, nor emancipate itself from the constitutional limitations upon freedom of state action ; it cannot have
international relations with foreign states, nor with any other of the United States; it cannot enter into treaties with foreign powers, nor make interstate compacts; it cannot engage in war, unless actually invaded, or in such imminent danger as will not admit of delay; it cannot grant Jetters of marque and reprisal; it cannot adopt any other than a republican form of state government, nor grant any title of nobility ; it cannot prescribe the conditions of its citizenship, for the birth within the United States of any person subject to their jurisdiction, or the naturalization of any person under the acts of Congress, followed, in either case, by residence within a state makes the person so born or naturalized, and so residing, a citizen of that state ; it cannot, in its regulation of the exercise of the right of suffrage by its citizens, discriminate because of race, colour, or previous condition of servitude ; it cannot, in its action with regard to its own citizens or with regard to temporary denizens within its territory, abridge those privileges or immunities which are common to citizens of the United States, nor deprive any person of life, liberty, or property, without due process of law, nor deny to any person
1 Section 4 of Article IV of the Constitution requires the United States to "guaranty to every state in this Union a republican form of government.” It rests with Congress to decide what government is the established one in a state, and also to determine upon the means proper to be adopted to fulfil the guaranty of a republican form of government to the states : Luther v. Borden, 7 How. 1, 42. Chase, C. J., pointed out in Texas v. White, 7 Wall. 727, that this constitutional obligation required the United States, after the suppression of the Rebellion, to re-establish the representation in Congress of the states lately in rebellion.