The distribution of powers between the national and the state governments is effected in two ways: positively, by conferring certain powers on the national government; negatively, by imposing certain restrictions on the states. It would have been superfluous to confer any powers on the states, because they retain all powers not actually taken from them. A lawyer may think that it was equally unnecessary and, so to speak, inartistic, to lay any prohibitions on the national government, because it could ex hypothesi exercise no powers not expressly granted. However, the anxiety of the states to fetter the master they were giving themselves caused the introduction of provisions qualifying the grant of express powers, and interdicting the national government from various kinds of action on which it might otherwise have been tempted to enter.2 The matter is further complicated by the fact that the grant of power to the national government is not in all cases an exclusive grant; i.e., there are matters which both, or either, the states and the national government may deal with. “The mere grant of a power to Congress does not of itself, in most cases, imply a prohibition upon the States to exercise the like power. . . . It is not the mere existence of the National power but its exercise which is incompatible with the exercise of the same power by the States.” 3 Thus we may distinguish the following classes of governmental powers:
Powers vested in the national government alone
Powers vested in the states alone
Powers exercisable by either the national government or the states
Powers forbidden to the national government
Powers forbidden to the state governments
It might be thought that the two latter classes are superfluous, because whatever is forbidden to the national government is permitted to the states, and conversely, whatever is forbidden to the states is permitted to the national government. But this is not so. For instance, Congress can grant no title of nobility (art. I, § 9). But neither can a state do so (art. I, § 10). The national government cannot take private property for public use without just compensation (amendment V). Apparently neither can any state do so (amendment XIV, as interpreted in several cases). So no state can pass any law impairing the obligation of a contract (art. I, § 10). But the national government, although not subject to a similar direct prohibition, has received no general power to legislate as regards ordinary contracts, and might therefore in some cases find itself equally unable to pass a law which a state legislature, though for a different reason, could not pass.4 So no state can pass any ex post facto law. Neither can Congress.
What the Constitution has done is not to 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
