The Essentials of American Constitutional Law — John Shaqi
The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
An entire consolidation of the States into one complete sovereignty
would imply an entire subordination of the parts; and whatever
powers might remain in them, would be altogether dependent on the
general will. But as the plan of the Convention (“of 1787”) aims
only at a partial union or consolidation, the State governments
would clearly retain all the rights of sovereignty which they
before had, and which were not, by that act, exclusively delegated
to the United States. This exclusive delegation, or rather, this
alienation, of State sovereignty, would only exist in three cases:
where the Constitution in express terms granted an exclusive
authority to the Union; where it granted in one instance an
authority to the Union, and in another prohibited the States from
exercising the like authority; and where it granted an authority
to the Union, to which a similar authority in the States would be
absolutely and totally contradictory and repugnant.[63]
The implication of the extinguishment of the powers of the State
Legislature by the powers of Congress can arise only where exercise of
State authority is “absolutely and totally contradictory and repugnant
to the power delegated to Congress.”[64] Therefore “where the authority
of the States is taken away by _implication_, they may continue to
act until the United States exercise their power, because until such
exercise there can be no incompatibility.”[65] The principle here
laid down is illustrated by laws fixing the standard of weights and
measures; bankruptcies; counterfeiting the coin and securities of the
United States; copyrights and patent rights. If Congress legislates
on these subjects, such legislation excludes State legislation in
conflict with it. In the absence of congressional and in the presence
of State legislation, on these (and some other subjects falling in
the same class) the respective State legislation is supreme within
the jurisdiction of the State.[66] Stated in a different way, this
principle of American constitutional law would read,—the mere grant to
the federal government of power over a subject does not necessarily
extinguish State authority over the same subject. Thus the State has
power by common law, or by statute, to fix a standard of weights and
measures. The issue here is not one merely of authority but of relative
authority. The exercise of authority by Congress is not, by that fact,
prohibition of exercise of authority by a State. This exercise is
radically different from that of legislation on coining money, making
treaties, granting titles of nobility, issuing letters of marque and
reprisal,—or any other subject over which Congress has exclusive, and a
State no jurisdiction. Here the question is one of exclusive, or sole
authority. Thus, State Legislatures have authority to pass bankrupt or
insolvent laws, provided there is no act of Congress, on the subject,
in force establishing a uniform system of bankruptcy conflicting with
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