The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
9. The question of the relative sovereignty of the United States and
that of a State is one of jurisdiction, and is determined by extent
of powers delegated, not of original powers possessed. Delegated
powers are expressed in constitutions and laws. Two governments exist
in America: that of the Union and that of the respective States.
The Constitution of the United States was ordained and established
by the people of the United States for themselves, for their own
government and not for the government of the individual States.[21]
The constitution of a State is made by the people of that State for
themselves only. Sovereignty in America has declared the Constitution
of the United States the supreme law of the land, thus formally
relegating State constitutions and laws to inferior rank,—that is, to a
position of powerlessness when in conflict with the supreme law. Thus
when we speak of two “sovereignties,” or of “residuary sovereignty,”
we really mean “two governments of delegated powers,”—that is, the
State governments and the national government. When we speak of the
two sovereignties, we do not mean _sovereignty_ (which is by nature
indivisible), but _government_ (which is divisible), the creation of
sovereignty and, unlike sovereignty, possesses only delegated powers.
10. For administrative purposes, or, stating the case in other words,
for legal reasons and in harmony with precedents in law, the terms
“sovereignty” and “residuary sovereignty” continue in use among
lawyers, judges, political writers, and civil officials; but government
is not, never was, and in such a country as ours, never can be
sovereignty. American constitutional law is law made by authority of
the sovereign people: the law of the United States is made by Congress,
the authorized legislative agent of the people of the United States:
the law of the State, is made by its Legislature, the authorized
law-making agent of the people of the State. The same essential may be
stated after the manner of Chief Justice Marshall as the law of the
whole: the Nation; the law of the part, the State. Government is the
child of sovereignty.
11. Because of the sovereignty of the people of the United States, and
consequently, of the supremacy of the Constitution, several results
follow:
Madison expresses one of these in _The Federalist_[22]:
The idea of a national government involves in it not only an
authority over the individual citizens, but an indefinite
supremacy over all persons and things, so far as they are objects
of lawful government.
Marshall expresses other results,—
The general government, though limited as to its objects, is
supreme with respect to these objects. This principle is a part
of the Constitution. To this supreme government ample powers are
confided. With the ample powers confided to this supreme government
are connected many express and important limitations on the
sovereignty of the States.[23]
Public-domain text, read in full here on John Shaqi.
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