The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
In truth, excepting in the election of United States Senators, members
of the House of Representatives, and Presidential Electors, the citizen
does not participate in federal government; and save through the post
office, the customs, the income tax (which directly affects fewer than
half a million persons in the United States), and in banking (including
the use of the money of the country) the citizen rarely has anything to
do with the United States. On the other hand, in the protection of his
property, the education of his family, the right of use of highways,
the validation of contracts, the rights, privileges and use of
multitudinous relations safeguarded by the common law and the statute,
it is the State, not the United States, which has first place, and,
consequently, constitutional priority.
The exact line of division between State and federal powers is not
known. The principle which rules in every attempt to fix this line is
that the enumeration of rights and powers in a constitution,—State or
federal,—“shall not be construed to deny or disparage others retained
by the people”[406] of the State or of the United States.
145. The essential doctrine, here, is set forth by the Supreme Court in
a decision which gives almost unlimited power to Congress in certain
cases (its power over a Territory, or possession of the United States):
There are certain principles of natural justice inherent in the
Anglo-Saxon character which need no expression in constitutions or
statutes to give them effect, or to secure dependencies against
legislation manifestly hostile to their real interests.... The
wisdom and discretion of Congress, their identity with the people,
and the influence which their constituents possess at elections,
are in this, as in many other instances,—as that for example,
of declaring war,—the sole restraints on which they have relied
to secure them from its abuse. They are the _restraints on
which the people must often solely rely in all representative
government_.[407]
The limitation of powers delegated by the people of the United States,
in the federal Constitution, or of a State, in its constitution,
implies a delegation of powers adequate to performance of legitimate
civil functions. The large question involved in every case of a
constitutional nature, or constitutional construction, is whether in
the discharge of a function, or an office, the government, or any
department of it is transcending its delegated powers. This question is
of the essence of constitutional law and judicial interpretation.
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