accepting it, and by the general consensus of opinion among the people, as shown by the events of our national history.13 An Organic Fundamental Law. 18 The United States being a sovereign and independent nation, the constitution is its organic and fundamental law. By this is meant that the constitution is the supreme act of legislation, ordained by the people themselves, by which the sovereignty, nationality, and organic unity of the nation is declared, the foundations of its government laid and established, and the organs for the execution of its sovereign will created. It is moreover a basic or funda. mental law, which is supreme and unvarying, and to which all other laws, ordinances, and constitutions, by whomsoever adopted, must be referred as the criterion to determine their validity. THE CONSTITUTION AS A GRANT OF POWERS. 17. The federal constitution contains a grant of powers to the government which it creates, but is not exhaustive of the powers which the people who maintain it might confer upon that government. The constitution contains a grant of certain enumerated powers to the federal government or to one or other of its departments All other powers of government are reserved to the several states or to the people. Historically, the United States, under its present government, is to be considered the successor of the confederation. And therefore the grant of powers to the United States by the constitution may be considered as an enlargement of, or addition to, the powers wielded by the central government under the articles of confederation. But it must not be forgotten that when the constitution was adopted there came into existence a nation (as distinguished from a league of states) which possessed absolute and unlimited inherent powers. The constitution should 181 Story, Const. §§ 306-372; Chisholm v. Georgia, 2 Dall. 419; Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264; McCulloch v. Maryland, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 1; Rhode Island v. Massachusetts, 12 Pet. 657; Lane Co. v. Oregon, 7 Wall. 71; Texas v. White, 7 Wall. 700; U. S. v. Cruikshank, 92 U. S. 542. hence be considered as defining the powers and prerogatives which the sovereign people of the United States have deemed fit to confide to their federal government. The limits or scope of these powers might be either enlarged or restricted by further amendments to the constitution. But in the mean time, a certain measure of power has been intrusted to the national government, and the remainder is reserved, to be exercised by the several states, or to remain in abeyance until the people shall see fit to delegate it to one or the other government. But from this principle there follows an important difference, in regard to the test of validity, between federal action and state action. This will be more fully considered when we come to speak of the nature and boundaries of legislative power. At present, it is sufficient to remark that if the validity of federal action is questioned, the authority for it must be shown in the constitution. But if the question is as to the validity of state action, it is not the justification but the prohibition of it which must be pointed out. That is, state action is presumed to be well warranted until the objector has been able to point out the specific provision of either the federal constitution or the state constitution with which it is incompatible. THE CONSTITUTION AS THE SUPREME LAW. 18. The constitution of the United States is the supreme law of the land, and is equally binding upon the federal government and the states and all their officers and people. Any and all enactments which may be found to be in conflict with the constitution are null and void. The constitution itself declares that it shall be the supreme law of the land. This supremacy of the constitution means, first, that it must endure and be respected as the paramount law, at all times and under all circumstances, and in every one of its provisions, until it is amended in the mode which itself points out or is destroyed by revolution. Secondly, it means that all persons are bound to respect the constitution as the supreme law. It is not merely a limitation upon legislative power, but is equally binding upon all the departments and officers of government, both state and national. Thirdly, it means that no act of legislation which is contrary to its provisions is to be regarded or respected as law. A treaty which is in violation of the constitution would be null and void. So also would any act of congress which should be in excess of the legislative power granted to that body by the constitution, or in disregard of any of its prohibitions. If the people of a state amend their constitution or adopt a new constitution, it must conform to the federal constitution. If it does not, it is of no effect. And every act of the legislature of every state must equally obey the mandates of the supreme law, at the risk of being declared nullity. But this provision does not operate to make every clause of the federal constitution a part of the constitution of each state. It relates only to matters wherein the general government assumes to control the states, either by the exercise of exclusive jurisdiction or by direct prohibition of certain kinds of legislative action by the states.14 Moreover, acts of congress passed in pursuance of the constitution are also the "supreme law of the land." Hence any act of congress which is valid and constitutional is supreme as against any law of a state which conflicts with it. When a state statute and a federal statute operate upon the same subject-matter. and prescribe different rules concerning it, and the federal statute is one within the competency of congress to enact, the state statute must give way; it is in effect no law, but an abortive attempt to exercise a power not possessed by the state legislature. Such is the effect when a conflict is found to arise between a state statute and the act of congress called the "interstate commerce law."" So also, when congress exercises its power to enact a bankruptcy law. that law becomes the supreme law of the land, and supersedes all state legislation dealing with the subject of insolvency. And again, the patent laws of the United States are supreme as against all state laws the enforcement of which would be inconsistent with the rights acquired under the federal legislation.1 14 In re Rafferty, 1 Wash. St. 382, 25 Pac. 465. 15 Gulf, C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98, 15 Sup. Ct 802. 16 Columbia Wire Co. v. Freeman Wire Co., 71 Fed. 302. BL.CONST.L.-3 CHAPTER III. ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. 19. Government of the Colonies. 20. The Continental Congress and the Articles of Confederation. 22-24. Amendment of the Federal Constitution. 25-27. Establishment of State Constitutions. 28-29. Amendment of State Constitutions. GOVERNMENT OF THE COLONIES. 19. Previous to the War of Independence, the thirteen political communities which afterwards became the original states of the American Union were colonies of Great Britain. Three forms of government obtained in the colonies: (a) Provincial. The first form of government was that which prevailed in the provinces of New Hampshire, New York, New Jersey, Virginia, North Carolina, South Carolina, and Georgia. Under this system, a governor was appointed by royal commission, to act as the king's representative. He was invested with general executive power, a veto on local legislation, and the power to establish courts and appoint judges. He was assisted by a council, also nominated by the king, which acted as the upper house of the local legislature. The lower house consisted of a general assembly of representatives of the freeholders of the province. In the proprietary governments the direct executive power had been granted out by the crown to individuals, who held them in the nature of feudatory principalities, with all the inferior royalties and subordinate powers of legislation which formerly belonged to the owners of counties palatine, but still subject to the sovereignty of the parent country. The proprietaries appointed the governors, and legislative assemblies were convened under their authority. This form of government existed, at the time of the revolution, in Maryland, Pennsylvania, and Delaware. In three of the colonies, Massachusetts, Rhode Island, and Connecticut, the government was founded on charters granted by the crown, which secured to them a larger measure of liberty, and indeed invested them with general powers of local self-government, subject only to the suzerainty of Great Britain and to certain particular restrictions which will be presently noticed. In the first-mentioned colony, indeed, the governor was appointed by the king; but in the two others the governor, council, and assembly were annually chosen by the freemen, and all other officers were appointed by their authority. In all the colonies the people claimed the right to enjoy all the liberties, privileges, and immunities of British subjects, including those safeguards against royal or governmental oppression which had been gradually evolved in the course of English history, and the benefit of the common law, in so far as the same was applicable to their needs and their situation. They also claimed that, for all purposes of domestic and internal regulation, their own legislatures possessed entire and exclusive authority. In all matters of this sort, it was strenuously denied that parliament possessed the power to legislate directly for the colonies. England's financial straits having forced her to attempt the levy and collection of taxes in the colonies, by act of parliament without the concurrence of the local legislatures, the power to tax the people without representation on their part was stoutly resisted and denied, and this was one of the causes which led to the revolt of the colonies. On the other hand, it was always provided that the laws passed by the colonial legislatures should not be repugnant to, but, as near as might be, agreeable to, the laws and statutes of England, and this sometimes gave occasion to the royal government to set aside or destroy acts of the local legislatures. Again, there could be no full measure of self-government when the legislative functions of the popular assemblies were participated in by a governor and council not chosen by the suffrages of the people. Moreover, the king and parliament never abandoned the claim. that they had authority to bind the colonies by legislation in all cases whatsoever. Appeals lay to the king in council from the decisions |