The American Commonwealth. Viscount James Bryce

cut in half the totality of governmental functions and powers, giving part to the national government and leaving all the rest to the states, but to divide up this totality of authority into a number of parts which do not exhaust the whole, but leave a residuum of powers neither granted to the Union nor continued to the states but reserved to the people, who, however, can put them in force only by the difficult process of amending the Constitution. In other words, there are things in America which there exists no organized and permanent authority capable of legally doing, not a state, because it is expressly forbidden, not the national government, because it either has not received the competence or has been expressly forbidden. Suppose, for instance, that there should arise a wish to pass for California such a measure as the Irish Land Act passed by the British Parliament in 1881. Neither the state legislature of California, nor the people of California assembled in a constitutional convention, could pass such a measure, because it would violate the obligation of contracts, and thereby transgress art. I, § 10 of the federal Constitution. Whether the federal Congress could pass such a measure is at least extremely doubtful, because the Constitution, though it has imposed no prohibition such as that which restricts a state, does not seem to have conferred on Congress the right of legislating on such a matter at all.⁵ If, therefore, an absolute and overwhelming necessity for the enactment of such a measure should arise, the safer if not the only course would be to amend the federal Constitution, either by striking out the prohibition on the states or by conferring the requisite power on Congress, a process which would probably occupy more than a year, and which requires the concurrence of two-thirds of both houses of Congress and of three-fourths of the states.

      II. The powers vested in the national government alone are such as relate to the conduct of the foreign relations of the country and to such common national purposes as the army and navy, internal commerce, currency, weights and measures, and the post office, with provisions for the management of the machinery, legislative, executive, and judicial, charged with these purposes.⁶

      The powers which remain vested in the states alone are all the other ordinary powers of internal government, such as legislation on private law, civil and criminal, the maintenance of law and order, the creation of local institutions, the provision for education and the relief of the poor, together with taxation for the above purposes.

      III. The powers which are exercisable concurrently by the national government and by the states are:

      Powers of legislation on some specified subjects, such as bankruptcy and certain commercial matters (e.g., pilot laws and harbour regulations), but so that state legislation shall take effect only in the absence of federal legislation;

      Powers of taxation, direct or indirect, but so that neither Congress nor a state shall tax exports from any state, and so that neither any state shall, except with the consent of Congress, tax any corporation or other agency created for federal purposes or any act done under federal authority, nor the national government tax any state or its agencies or property;⁷

      Judicial powers in certain classes of cases where Congress might have legislated, but has not, or where a party to a suit has a choice to proceed either in a federal or a state court;

      Powers of determining matters relating to the election of representatives and senators (but if Congress determines, the state law gives way).

      IV. The prohibitions imposed on the national government are set forth in art. I, § 9, and in the first ten amendments. The most important are:

      Writ of habeas corpus may not be suspended, nor bill of attainder or ex post facto law passed.⁸

      No commercial preference shall be given to one state over another.

      No title of nobility shall be granted.

      No law shall be passed establishing or prohibiting any religion, or abridging the freedom of speech or of the press, or of public meeting, or of bearing arms.

      No religious test shall be required as a qualification for any office under the United States.

      No person shall be tried for a capital or otherwise infamous crime unless on the presentment of a grand jury, or be subjected to a second capital trial for the same offence, or be compelled to be a witness against himself, or be tried otherwise than by a jury of his state and district.

      No common law action shall be decided except by a jury where the value in dispute exceeds $20, and no fact determined by a jury shall be re-examined otherwise than by the rules of the common law.⁹

      V. The prohibitions imposed on the states are contained in Art. I, § 10, and in the three latest amendments. They are intended to secure the national government against attempts by the states to trespass on its domain, and to protect individuals against oppressive legislation.

      No state shall—Make any treaty or alliance; coin money; make anything but gold and silver coin a legal tender; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; grant any titles of nobility.

      No state shall without the consent of Congress—Lay duties on exports or imports (the produce of such, if laid, going to the national treasury); keep troops or ships of war in peace time; enter into an agreement with another state or with any foreign power; engage in war, unless actually invaded or in imminent danger.

      Every state must—Give credit to the records and judicial proceedings of every other state; extend the privileges and immunities of citizens to the citizens of other states; deliver up fugitives from justice to the state entitled to claim them.

      No state shall have any but a republican form of government.

      No state shall maintain slavery; abridge the privileges of any citizen of the United States, or deny to him the right of voting, in respect of race, colour, or previous servitude; deprive any person of life, liberty, or property without due process of law; deny to any person the equal protection of the laws.

      Note that this list contains no prohibition to a state to do any of the following things: Establish a particular form of religion; endow a particular form of religion, or educational or charitable establishments connected therewith; abolish trial by jury in criminal or civil cases; suppress the freedom of speaking, writing, and meeting (provided that this be done equally as between different classes of citizens, and provided also that it be not done to such an extent as to amount to a deprivation of liberty without due process of law); limit the electoral franchise to any extent; extend the electoral franchise to women, minors, aliens.

      These omissions are significant. They show that the framers of the Constitution had no wish to produce uniformity among the states in government or institutions, and little care to protect the citizens against abuses of state power.¹⁰ They were content to trust for this to provisions of the state constitutions. Their chief aim was to secure the national government against encroachments on the part of the states, and to prevent causes of quarrel both between the central and state authorities and between the several states. The result has, on the whole, justified their action. So far from abusing their power of making themselves unlike one another, the states have tended to be too uniform, and have made fewer experimental changes in their institutions.

      VI. The powers vested in each state are all of them original and inherent powers, which belonged to the state before it entered the Union. Hence they are prima facie unlimited, and if a question arises as to any particular power, it is presumed to be enjoyed by the state, unless it can be shown to have been taken away by the federal Constitution; or, in other words, a state is not deemed to be subject to any restriction which the Constitution has not distinctly imposed.

      The powers granted to the national government are delegated powers, enumerated in and defined by the instrument which has created the Union. Hence the rule that when a question arises whether the national government possesses a particular power, proof must be given that the power was positively granted. If not granted, it is not possessed, because the Union is an artificial creation, whose government can have nothing but what the people have by the Constitution conferred. The presumption is therefore against the national government in such a case, just as it is for the state in a like case.¹¹

      VII. The authority