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 of the national government over the citizens of every state is direct and immediate, not exerted through the state organization, and not requiring the cooperation of the state government. For most purposes the national government ignores the states; and it treats the citizens of different states as being simply its own citizens, equally bound by its laws. The federal courts, revenue officers, and post office draw no help from any state officials, but depend directly on Washington. Hence, too, of course, there is no local self-government in federal matters. No federal official is elected by the people of any local area. Local government is purely a state affair.
On the other hand, the state in no wise depends on the national government for its organization or its effective working. It is the creation of its own inhabitants. They have given it its constitution. They administer its government. It goes on its own way, touching the national government at but few points. That the two should touch at the fewest possible points was the intent of those who framed the federal Constitution, for they saw that the less contact, the less danger of collision. Their aim was to keep the two mechanisms as distinct and independent of each other as was compatible with the still higher need of subordinating, for national purposes, the state to the central government.
VIII. It is a further consequence of this principle that the national government has but little to do with the states as states. Its relations are with their citizens, who are also its citizens, rather than with them as ruling commonwealths. In the following points, however, the Constitution does require certain services of the states:
It requires each state government to direct the choice of, and accredit to the seat of the national government, two senators and so many representatives as the state is entitled to send.
It requires similarly that presidential electors be chosen, meet, and vote in the states, and that their votes be transmitted to the national capital.
It requires each state to organize and arm its militia, which, when duly summoned for active service, are placed under the command of the president.
It requires each state to maintain a republican form of government. (Conversely, a state may require the national government to protect it against invasion or domestic violence.)
Note in particular that the national government does not, as in some other federations:
Call upon the states, as commonwealths, to contribute funds to its support;
Issue (save in so far as may be needed in order to secure a republican form of government) administrative orders to the states, directing their authorities to carry out its laws or commands;
Require the states to submit their laws to it, and veto such as it disapproves.
The first two things it is not necessary for the national government to do, because it levies its taxes directly by its own collectors, and enforces its laws, commands, and judicial decrees by the hands of its own servants. The last can be dispensed with because the state laws are ipso jure invalid, if they conflict with the Constitution or any treaty or law duly made under it (art. VI, § 2), while if they do not so conflict they are valid, any act of the national government notwithstanding.
Neither does the national government allow its structure to be dependent on the action of the states. “To make it impossible for a State or group of States to jeopardize by inaction or hostile action the existence of the central government,” was a prime object with the men of 1787, and has greatly contributed to the solidity of the fabric they reared. The de facto secession of eleven states in 1860–61 interfered with the regular legal conduct neither of the presidential election of 1864 nor of the congressional elections from 1861 to 1865. Those states were not represented in Congress; but Congress itself went on diminished in numbers yet with its full legal powers, as the British Parliament would go on though all the peers and representatives from Scotland might be absent.
IX. A state is, within its proper sphere, just as legally supreme, just as well entitled to give effect to its own will, as is the national government within its sphere; and for the same reason. All authority flows from the people. The people have given part of their supreme authority to the national, part to the state governments. Both hold by a like title, and therefore the national government, although superior wherever there is a concurrence of powers, has no more right to trespass upon the domain of a state than a state has upon the domain of federal action. That the course which a state is following is pernicious, that its motives are bad and its sentiments disloyal to the Union, makes no difference until or unless it infringes on the sphere of federal authority. It may be thought that however distinctly this may have been laid down as a matter of theory, in practice the state will not obtain the same justice as the national government, because the court which decides points of law in dispute between
