[403] The Sixteenth Amendment (income tax) bears most heavily on States having large cities and a manufacturing population. It is possible that States which would be but slightly affected by a proposed amendment, might favor and ratify it; to avoid this possible discrimination, the suggestion has been made that in such a case the power of a State to ratify or to oppose ratification should be in proportion to its interests as affected by the proposed amendment. To this suggestion answer has been made that the Constitution is national, not local, in purpose and operation. [404] Art. vi., 2, 3. [405] Tenth Amendment. [406] Ninth Amendment. [407] The first quotation is from Downes _v._ Bidwell, 182 U. S., 244 (1901); the second, from Gibbons _v._ Ogden, 9 Wheaton, 235 (1824), decision by Marshall. The application of the principle laid down by Chief Justice Marshall in 1824 and elaborated, at times, by the Supreme Court,—as in 1901,—was discussed by the eminent jurist, Thomas M. Cooley, in a brief address to the North Dakota Constitutional Convention, July 17, 1889. At that time he was Chairman of the Interstate Commerce Commission. “Don’t, in your constitution-making, legislate too much. In your constitution you are tying the hands of the people. Don’t do that to any such extent as to prevent the Legislature, hereafter, from meeting all evils that may be within the reach of proper legislation. Leave something for them. _Take care to put proper restrictions upon them_, but at the same time leave what properly belongs to the field of legislation to the Legislature of the future. _You have got to trust somebody in the future and it is right and proper that each department of government should be trusted to perform its legitimate functions._” Proceedings and Debates of the First Constitutional Convention of North Dakota, Assembled in the City of Bismarck, July 4 to August 17, 1889, p. 67. (Italization in text, not in original.) [408] Thirty-three States have an elective judiciary. In Maine, New Hampshire, Massachusetts, Connecticut, Delaware, Mississippi, and New Jersey, the Governor nominates and the Senate confirms judges; in Rhode Island, Vermont, South Carolina, and Virginia, the Legislature elects the judges; in Florida, the Governor appoints judges of the Superior Courts and judges of the Supreme Court are elected by the people. [409] Strictly executive functions are not within the jurisdiction of courts of law. See the discussion in Chapter VII. [410] Marbury _v._ Madison, 1 Cranch, 137 (1803). [411] Art. vi., 2, 3. [412] Chicago, etc., Ry. Co. _v._ Wellman, 143 U. S., 339 (1892); Frees _v._ Ford, 6 New York, 176 (1852); Commonwealth _v._ McCloskey, 2 Rawle (Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96. [413] McCulloch _v._ Maryland, 4 Wheaton, 421 (1819). [414] _Idem._, 423. [415] No. lxxxiv.