The American Commonwealth. Viscount James Bryce

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СКАЧАТЬ state. Whether they have transgressed any of these restrictions is a question for the courts of law, and, if not in the first instance, yet always in the last resort a question for the federal Supreme Court. If it is decided that they have transgressed, their act, be it legislative or executive, is null and void.⁷

      The president as national executive, and Congress as national legislature, have also received from the Constitution the right of interfering in certain specified matters with the governments of the states. Congress of course does this by way of legislation, and when an act of Congress, made within the powers conferred by the Constitution, conflicts with a state statute, the former prevails against the latter. It prevails by making the latter null and void, so that if a state statute has been duly passed upon a matter not forbidden to a state by the Constitution, and subsequently Congress passes an act on the same matter, being one whereon Congress has received the right to legislate, the state statute, which was previously valid, now becomes invalid to the extent to which it conflicts with the act of Congress. For instance, Congress has power to establish a uniform law of bankruptcy over the whole Union. Formerly, in the exercise of this power, it passed bankruptcy laws. When these were repealed, the subject was left to the state laws;⁸ and still later, in 1898, Congress again legislated on the subject, depriving these state laws of their force.⁹ If the law passed by Congress were again repealed, they would again spring into life. The field of this so-called concurrent legislation is large, for Congress has not yet exercised all the powers vested in it of superseding state action.

      It was remarked in the last chapter that in determining the powers of Congress on the one hand and of a state government on the other, opposite methods have to be followed. The presumption is always in favour of the state; and in order to show that it cannot legislate on a subject, there must be pointed out within the four corners of the Constitution some express prohibition of the right which it prima facie possesses or some implied prohibition arising from the fact that legislation by it would conflict with legitimate federal authority.¹⁰ On the other hand, the presumption is always against Congress, and to show that it can legislate, some positive grant of power to Congress in the Constitution must be pointed out.¹¹ When the grant is shown, then the act of Congress has, so long as it remains on the statute book, all the force of the Constitution itself. In some instances the grant of power to Congress to legislate is auxiliary to a prohibition imposed on the states. This is notably the case as regards the amendments to the Constitution, passed for the protection of the lately liberated Negroes. They interdict the states from either recognizing slavery, or discriminating in any way against any class of citizens; they go even beyond citizens in their care, and declare that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” Now, by each of these amendments, Congress is also empowered, which practically means enjoined, to “enforce by appropriate legislation” the prohibitions laid upon the states. Congress has done so, but some of its efforts have been held to go beyond the directions of the amendments, and to be therefore void.¹² The grant of power has not covered them.

      Where the president interferes with a state, he does so either under his duty to give effect to the legislation of Congress, or under the discretionary executive functions which the Constitution has entrusted to him. So if any state were to depart from a republican form of government, it would be his duty to bring the fact to the notice of Congress in order that the guarantee of that form contained in the Constitution might be made effective. If an insurrection broke out against the authority of the Union, he would (as in 1861) send federal troops to suppress it. If there should be rival state governments, each claiming to be legitimate, the president might, especially if Congress were not sitting, recognize and support the one which he deemed regular and constitutional.¹³

      Are these, it may be asked, the only cases in which federal authority can interfere within the limits of a state to maintain order? Are law and order, i.e., the punishment of crimes and the enforcement of civil rights, left entirely to state authorities? The answer is:

      Offences against federal statutes are justiciable in federal courts, and punishable under federal authority. There is no federal common law of crimes;

      Resistance offered to the enforcement of a federal statute may be suppressed by federal authority;

      Attacks on the property of the federal government may be repelled, and disturbances thence arising may be quelled by federal authority;

      The judgments pronounced in civil causes by federal courts are executed by the officers of these courts;

      All other offences and disorders whatsoever are left to be dealt with by the duly constituted authorities of the state, who are, however, entitled in one case to summon the power of the Union to their aid.

      This case is that of the breaking out in a state of serious disturbances. The president is bound on the application of the state legislature or executive to quell such disturbances by the armed forces of the Union, or by directing the militia of another state to enter. Thus in 1794 Washington suppressed the so-called Whisky Insurrection in Pennsylvania by the militia of Pennsylvania, New Jersey, Virginia, and Maryland.¹⁴ President Grant was obliged to use military force during the troubles which disturbed several of the Southern states after the Civil War; as was President Hayes, during the tumults in Pennsylvania caused by the great railway strikes of 1877. There have, however, been cases, such as the Dorr rebellion in Rhode Island in 1842,¹⁵ in which a state has itself suppressed an insurrection against its legitimate government. It is the duty of a state to do so if it can, and to seek federal aid only in extreme cases, when resistance is formidable. The most remarkable recent instance of federal interposition occurred in 1894 when, during a railway strike in Illinois, mobs had stopped the passage of trains carrying the U.S. mails. President Cleveland, on the ground that federal property must be protected and the constitutional duty of carrying the mails discharged, sent federal troops to Chicago, though not asked to do so by the governor of Illinois, and secured the passage of the mail trains. His action was generally approved both by the legal profession and by the nation.

      So far we have been considering the relations of the national government to the states as political communities. Let us now see what are its relations to the individual citizens of these states. They are citizens of the Union as well as of the states, and owe allegiance to both powers. Each power has a right to command their obedience. To which then, in case of conflict, is obedience due?

      The right of the state to obedience is wider in the area of matters which it covers. Prima facie, every state law, every order of a competent state authority, binds the citizen, whereas the national government has but a limited power: it can legislate or command only for certain purposes or on certain subjects. But within the limits of its power, its authority is higher than that of the state, and must be obeyed even at the risk of disobeying the state. An instance in which a state official suffered for obeying his state where its directions clashed with a provision of the federal Constitution may set the point in a clear light. A statute of California had committed to the city and county authority of San Francisco the power of making regulations for the management of gaols. This authority had in 1876 passed an ordinance directing that every male imprisoned in the county gaol should “immediately on his arrival have his hair clipped to a uniform length of one inch from the scalp.” The sheriff having, under this ordinance, cut off the queue of a Chinese prisoner, Ho Ah Kow, was sued for damages by the prisoner, and the court, holding that the ordinance had been passed with a special view to the injury of the Chinese, who consider the preservation of their queue a matter of honour, and that it operated unequally and oppressively upon them, in contravention of the Fourteenth Amendment to the Constitution of the United States, declared the ordinance invalid, and gave judgment against the sheriff.¹⁶ Similar subsequent attempts against the Chinese, made under cover of the Constitution of California of 1879 and divers statutes passed thereunder, have been defeated by the courts.

      The safe rule for the private citizen may be thus expressed: “Ascertain whether the federal law is constitutional (i.e., such as СКАЧАТЬ