The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
141. The line of demarcation between powers delegated and powers
reserved has always been, and doubtless always will be, in dispute. The
question involved is political as well as constitutional. The abolition
of slavery by the Thirteenth Amendment excludes pro-slavery legislation
of any kind affecting the United States or any place subject to its
jurisdiction. In like manner the Fourteenth Amendment forbids Congress,
or any State, to assume or pay any debt, or obligation incurred in aid
of insurrection or rebellion against the United States, or any claim
for the loss or emancipation of any slave. All these limitations of
legislative power are practical guides and measurements by which the
judicial power,—the law courts,—can determine what the law is, whether
the act of Congress conflicts with the Constitution. It is largely
through these expressed limitations that the judiciary becomes a check
on the legislative.[381]
142. The limitations of the powers of the States are numerous and
specific. As to limitations of State power (_i. e._, the power of the
State government, executive, legislative, judicial, administrative),
within State jurisdiction, the several State constitutions alone
are authoritative and final.[382] The Union is an indestructible
Union of indestructible States, yet the States composing the Union
are under limitations as members of that Union. Except as to the
places of choosing senators, Congress may at any time prescribe
the times, places, and manner of holding elections of senators and
representatives.[383]
Congress has exclusive jurisdiction over the District of Columbia, and
over places purchased from any State, and over federal property.[384]
But the Constitution enumerates limitations of the States, each of
which eliminates sovereignty from the State and all together, with some
other limitations, reduce a State to what Hamilton, in _The Federalist_
calls “residuary sovereignty.”[385]
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; pass any bill of attainder, _ex post facto_, law, or
law impairing the obligation of contracts, or grant any title of
nobility.[386]
These limitations are of power usually classed as sovereign. Of similar
scope are the limitations, prescribed by the Constitution, of State
power of taxation,—that is, of laying imposts or duties; of keeping
troops or ships of war; of entering into any agreement with another
State, or with a foreign power; of engaging in war, unless actually
invaded, or in imminent danger of invasion, not admitting of delay.
None of these powers can a State in the Union exercise without the
consent of Congress.[387]
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