The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
but when “in order to form a more perfect Union” it was deemed
necessary to change this alliance into an effective government,
possessing great and sovereign powers, and acting directly on
the people, the necessity of referring it to the people, and of
deriving its powers directly from them, was felt and acknowledged
by all. The government of the Union is emphatically and truly a
government of the people. In form and substance it emanates from
them. Its powers are granted by them and are to be exercised
directly on them, and for their benefit. This government is
acknowledged by all to be one of enumerated powers. But the
question respecting the extent of the powers actually granted is
perpetually recurring, and will probably continue to arise as long
as our system shall exist. The government of the Union, though
limited in its powers, is supreme within its sphere of action.[9]
This supremacy results from the nature of the government.
It is the 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 them. The nation, on those subjects on which
it can act, must necessarily bind its component parts. But this
question is not left to mere reason; the people have in express
terms decided it by saying, this Constitution and the laws of the
United States which shall be made in pursuance thereof, and all
treaties made under its authority, shall be the supreme law of
the land, and by requiring executive, legislative, judicial (and
administrative) officers to take the oath of fidelity to it.[10]
7. The question of sovereignty arises here and, as commonly stated, of
national sovereignty and of State sovereignty. The equal vote allowed
each State by the Constitution,[11] “is at once a recognition of the
portion of sovereignty remaining in the individual States, and an
instrument for preserving that residuary sovereignty.”[12] Are there
two sovereignties in America?
The sovereignty of a State [declares Marshall], extends to
everything which exists by its authority, or is introduced by its
permission; but does not extend to these means which are employed
by Congress to carry into execution powers conferred on that
body by the people of the United States. These powers are not
given by the people of a single State, but by the people of the
United States to a government whose laws, made in pursuance of the
Constitution, are declared to be supreme. Consequently, the people
of a single State cannot confer a sovereignty which will extend
over them.[13]
8. The exercise of the taxing power illustrates the principle here
involved. The power of taxation residing in a State measures the extent
of sovereignty which the people of a single State possess, and can
confer on its government.
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