§ 19] Federal Supremacy. 19. Supremacy of Federal Government in Exercise of Powers Granted. 43 Although, as compared with a state government, the federal government is one of limited and enumerated powers rather than of general powers, it does not follow that it is in any way inferior or subordinate to a state government. On the other hand, its very nature and the purpose for which it was created indicate that in the exercise of the powers granted either expressly or by implication, it must be supreme. In Article VI (¶2) of the federal constitution, it is declared: "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." In expounding this provision it has been said: "If any one proposition could command the universal assent of mankind, we might expect it would be this: that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is a 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 it. The nation, on those subjects on which it can act, must necessarily bind its component parts" (Marshall, Ch. J., in McCulloch v. Maryland, 4 Wheaton, 316, 405). Moreover, in order that the supremacy of the federal government as to those matters entrusted to its authority shall be maintained without encroachment, it is essential that the final interpretation of the extent of its powers shall rest with it alone; and one of the functions of the federal judiciary is to determine ultimately the construction of the federal constitution with reference to the powers of the federal government. Other courts may be called upon in cases properly before them to construe the federal constitution as a part of the written law; but when such constitution has been interpreted in any respect by the supreme court of the United States, that interpretation becomes a part of the supreme law, binding on all the state courts, and on the citizens of the states. (See below, §§ 142,146.) A clear understanding of the declared supremacy of the power of the federal government, and of the conclusiveness of the interpretation by the supreme court of the United States of the scope of these powers, will indicate that there is no possibility of any conflict between the federal government and the government of a state. If conflicting assertions of authority are to be reconciled by peaceful and lawful means, rather than by the resort to violence, it must be by the recognition of ultimate authority somewhere to determine the controversy; and there can be no reasonable question as to the intention of the framers of the constitution that this ultimate solution should be furnished by the federal government, and that it should be binding upon all. 20. Limitations in the Federal Constitution on State and Federal Power. Not only is the federal constitution in itself a limitation on state power, in so far as the exercise by the federal government of the powers conferred upon it are inconsistent with any exercise by the state of authority in conflict with that of the federal government as to matters coming within its legitimate scope, but it was deemed necessary in some respects definitely to limit the powers of the state governments, or to prohibit their exercise of authority in ways inconsistent with the general purpose of forming a national government. Therefore it is expressly provided (Art. I, § 10) that "no state shall enter into any treaty, alliance, or confederation, grant letters of marque or reprisal, coin money, emit bills of credit, make anything but gold and silver coin a tender in payment of debts, . . . or grant any title of nobility"; and further, that "no state shall without the consent of the Congress, levy any imposts or duties on imports or exports, except what may be § 21] Federal Limitations. 45 absolutely necessary for executing its inspection laws," etc., nor, "without the consent of Congress, lay any duty on tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Further consideration will be given to these limitations in connection with the discussion of particular branches of the federal power, but they must properly be borne in mind here as indicating the intention to subordinate the authority of the state to that of the federal government in national matters. The relation of the states to each other is also in some respects regulated by the federal constitution. The prohibition noticed in the preceding paragraph as to agreements or compacts would prevent any attempt being made by two or more states, through concerted action, to interfere with national authority; and would indicate the intention that, while each state in itself is recognized as having powers of government, the relations of the states to each other, and of each to the citizens of each other, are to be determined by the federal constitution, and not by mutual arrangement. But there are further specific provisions as to the relations between the states. Thus, in Article IV it is specified that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state"; that "citizens of each state shall be entitled to all privileges and immunities of citizens in the several states"; and that fugitives from justice, fleeing from one state to another, shall be surrendered back by the latter on demand of the chief executive authority of the former. These clauses must also be more fully considered in another connection (see below, ch. xxxiii), but are important here as indicating the nature and scope of the federal plan. 21. Limitations in the Federal Constitution for Protection of Personal Rights. When the federal constitution was framed by the constitutional convention, it was assumed, not only that the protection of the personal and property rights of the citizens of each state would remain primarily with the states themselves, but also that, as the federal government was to be a government possessing only enumerated powers, no general guaranties to individuals against the improper exercise of authority on the part of the federal government were necessary. Nevertheless, a few restrictions on the federal government were specifically im-. posed. Thus (Art. I, § 9), the privilege of the writ of habeas corpus was guaranteed; the passage of bills of attainder or ex post facto laws was prohibited, and the power to grant titles of nobility was denied, and in the same connection the powers of the federal government were restricted so that there should be no discriminations made between the states or the citizens thereof. But there were no express provisions for the protection of personal and property rights. As against the federal government, there was no guaranty of due process of law, or the protection of contract rights, or of jury trial in civil cases and the usual forms of procedure in criminal cases. The omission from the federal constitution of any such general guaranties was made a ground of objection to its adoption in several of the state conventions. The fact that the state constitutions all contained some general guaranties in the form of a bill of rights gave countenance to the assumption that such guaranties were an essential and fundamental part of a constitution, and in some of the state conventions the ratification of the proposed federal constitution was accompanied with the recommendation that a bill of rights be added to it by way of amendment. Accordingly, ten amendments to the federal constitution were proposed to the several states by the first Congress, and were ratified and became a part of the constitution prior to the year 1791. Of these Amendment IX is in the nature of a general saving clause, and Amendment X emphasizes the fact that the federal government has under the constitution only the powers enumerated, all others being reserved to the states or to the people. The first ten amendments indicate a prevailing distrust of the power which the federal government might attempt to exercise. They indicate § 21] Personal Rights. 47 anxiety for the preservation of local freedom of government, and the wish to rely for protection of personal and property rights on the state governments, which, it was evidently assumed, would be safer repositories of power with respect to the rights of their citizens. But even in the constitution as originally adopted, some restraint was imposed upon the states in behalf of the personal security of the people. For example, it is provided (Art. I, § 10) that no state shall "pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." And after the Civil War, as a means of making permanent the personal liberty which had accrued to individuals of the negro race, three amendments were adopted, limiting in very important respects the powers of the states with reference to the civil and political rights of their citizens. By Amendment. XIII (1865) slavery was prohibited. By Amendment XIV (1868) citizenship in the states as well as in the Union as a whole was defined, and abridgment of the privileges or immunities incident to citizenship forbidden; and the states were also prohibited from depriving any person of life, liberty, or property without due process of law, or denying to any person the equal protection of the laws. By Amendment XV (1870) the states were restrained from denying or abridging the right of suffrage on account of race, color, or previous condition of servitude. The adoption of these three amendments indicated a shifting of responsibility for the protection of the citizen against the undue exercises of governmental authority by a state government from the state itself to the federal government. The controlling consideration no doubt was the purpose to guarantee to the negroes the same civil and political rights accorded under the laws of any state to the white citizens of that state. But the ultimate result, especially of Amendment XIV, has been to place personal and property rights largely within the protection of the federal government. The guaranty of due process of law and the equal protection of the laws, found in that amendment, has been broadly invoked as a pro |