The Essentials of American Constitutional Law - Francis Newton Thorpe

INDEX

A
Aliens, as citizens and allegiance of, [1]
Allegiance, [222]
Ambassadors, [119], [120], [137]
Amendments, protect fundamental rights, [22];
the Sixteenth, [23], [24], [57], [61];
I.-XVII., [28], [29], [57], [58], [61];
Fourteenth, [96], [97];
Eleventh, the, [114], [115];
first ten, [173–175], [199], [200];
Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, [175];
Thirteenth, [176], [198], [200];
Fourteenth, [176], [198], [200], [206], [207], [216], [217];
Fifth, [198];
Fifteenth, [222], [223];
Ninth, [200];
Tenth, [200], [203];
Fourth, [203];
Seventh, [210]
Anti-Trust Act, [83], [84], [85]
Appropriations, [22], [171];
of Representatives and Senators, [179]
Arizona, admission of, [158]
Army, [171]
Asylum, right of, [152], [153]
Attainder, bill of, [22], [171], [172]
B
Bank, State, [89], [90]
Bankruptcies, [36], [37]
Bible, in public schools, [202], [203]
Bill of credit, [41]
Bill of Rights, [173–175];
the Constitution a, [187], [210], [211]
Bonds, [90]
Boycott, [84]
C
Cabinet, the, [105], [106]
California, law of, held constitutional, [220]
Carriers, Common, [87]
Charters, [91]
Checks and balances, [164], [165];
on the Executive, [166–169];
on Congress, [170–177], [178];
on the States, [176–181]
Checks on Congress, [27]
Chief Justice, in Court of Impeachment, [103], [108], [109]
Cities, jurisdiction over, [48]
Citizen, of a territory, of a State, [141], [142];
privileges and immunities of, [149], [150], [212], [215], [220];
as participant in the federal government, [182];
as elector, [216]
Citizens, privileges and immunities of, [149], [150], [163] (note)
Citizenship, defined, [212];
two citizenships, [212], [213], [226–229]
Civil Rights Bill, [218], [219]
Comity, the law of State, [146–163]
Commerce, regulation of interstate, [22];
law of, [63–88];
regulation of, belongs to sovereignty, [63], [64];
defined, [67];
State and interstate, [63–88];
unlawful restraint of, [72];
when an article is of, [73];
distinguished from manufacture, [73];
“taxation of commerce,” meaning of, [75];
principal of regulation of, [76], [77], [78];
interstate, [78], [88];
intrastate, [79], [80], [88];
“foreign commerce,” [87], [88]
Confederation, a league, [7];
unable to regulate commerce, [66]
Congress, law making by, [2], [18–50];
determines extent of taxation, regulates commerce, protects citizens, determines jurisdiction of federal courts, assigns duties and powers to the President, [25];
powers of, political, [26];
abuse of powers by, [27];
checks on, [27];
test of authority of, [30], [31];
powers of, derived, [34], [35];
war power of, [46];
power over territory, [48], [49], [50];
power of, over commerce, [63–88];
limitation of powers of, as to commerce, [69–88];
debates in, as evidence in court, [127];
decides political questions, [128];
governs territory, [158–163];
power over outlying possessions, [161], [162], [163];
checks on, [170–176];
unconstitutional legislation, [218], [219]
Constitution, the supreme law, [1];
essential to sovereignty, [2];
ordained by the people, [2];
a practical instrument, [19], [20];
provides only for judicial interpretation, [24];
relative rank with act of Congress, [24], [25];
unwritten, [27];
how amended, [180], [181];
administrative provisions in, [191], [192];
essential features of, [194]
Constitutions, State, 1776–1787, [21];
limit Legislatures, [22], [23]
Consuls, [119], [120], [137]
Contracts, between citizens of different States, [37], [38];
obligation of, [37];
a lawful, [40];
law of, the, [89–101];
obligation of, under the Constitution, [93], [94];
constitutional use of the word, [98]
Convention, [107], [108]
Convention (federal), [6];
to amend Constitution, [180], [181]
Cooley, quoted, [205]
Copyrights, [36], [43]
Corporations, municipal, [59];
as citizen, [139], [142];
rights of, [139], [140], [149]
Counterfeiting, [36], [41], [42]
Counties, jurisdiction over, [48]
Courts, inferior, [122] et seq.
Courts, Territorial, [125]
Courts, Supreme and inferior, [113], [122], [123];
jurisdiction of federal, [115] et seq.;
Territorial, [125];
political questions and the, [126];
do not decide political questions, [128];
province and duty of, [129];
judicial supremacy, [129–131];
essential power of the Supreme Court, [142], [143];
federal sitting as State, [144], [145];
limitation of federal, [178]
D
Debts, of the U. S., [40]
Domain, eminent, exercise of, by U. S. or the States, [95], [97], [98], [99], [100]
“Due process of law,” charitable institutions not entitled to, or a person, [60];
a fundamental right, [95], [204], [220]
Duties, export, [22]; uniform, [40], [171]
Duty, a ministerial, [110], [111], [112]
E
Election, disputed, of President or Vice-President, [180]
Elections, disputed presidential, [167]
Electors, denial of right of, [179]
England, as sovereign, [2]
Excises, [40], [171]
Executive, law of, [102–112];
checks on, [166–169]
Exemption, from taxation (Churches, Schools, etc.), [60];
from income tax, [61]
Expatriation, [222]
Expenditures, public statement of, [22]
Ex post facto law, [22], [171], [177], [224]
F
Federalist, The, quoted or cited, [4], [8], [12], [13], [17], [33], [34], [35], [36], [116], [117], [118], [187]
Fee, license, [74]
Felonies, [44]
Florida, as a territory, status in U. S., [127]
France, as sovereign, [2]
Fugitives from justice, [151], [152];
political, [153], [154]
Ft. Leavenworth Military Reservation, [48]
G
Gallatin, Albert, on Louisiana purchase, [14], [15]
Government, representative, [2];
republican form guaranteed, [6];
a unit, [19];
distinguished from sovereignty, [23];
limited, affected by Sixteenth Amendment, [23], [24];
national, when supreme, [34];
nature of national, [38];
Marshall’s differentiation between State and federal, [51];
of the U. S., distinct from the State, [116];
what constitutes a lawful State, [128];
principal of separation of powers of, [135], [136];
of the U. S. power of, [137], [138];
what is a republican form of? [154], [155], [156]
Governor, power of extradition, [151], [152];
issues writs of election, [179]
H
Habeas Corpus, [21], [143]
Hamilton, on National and State systems, [13];
as interpreter of the Constitution, [28];
as to State and federal sovereignty [35], [36];
on residuary sovereignty, [177];
on the Constitution as a Bill of Rights, [187]
Hayes, President, on power of the President, [109], [110]
House of Representatives (U. S.) members, [103], [172], [179];
election of, [182], [216].
(See also [Congress], [Powers].)
I
Impeachment, [107]
Imports, [40]
Imposts, [171]
Information, prosecution by, [220]
Interstate commerce, testimony before, [225], [226]
J
Jefferson, on Louisiana purchase, [13];
as interpreter of the Constitution, [28]
Johnson, President, [103]
Judges, bound by the Constitution, [1]
Judiciary Act, [141]
Judiciary, as agent, [3], [4];
law of judicial power, the, [113–145];
supremacy of, [129–133]
Jurisdiction, of congress and legislatures, [18–50];
principle of, [38];
of the U. S., [45], [58], [63];
of a State, [48];
State and federal compared, [51], [68], [72], [73], [78], [80], [81], [82], [86], [91], [92], [95], [97];
the test, [53];
of the Executive, [102–112];
of the Judiciary, [113–145];
of Supreme and of inferior federal courts, [118], [119], [120], [122], [123];
admiralty, [121];
federal and State distinguished, [124], [125];
as to political questions, [126], [127];
original of Supreme Court, [136], [137];
national commercial, [137];
principal of State, [146], [147];
no new conferred by the constitution, [146];
determines citizenship, [151]
Jury, as used in the Constitution, [209], [210];
indictment of, [220]
Justice, principles of natural, [50]
K
Kansas, jurisdiction over Ft. Leavenworth Military Reservation, [48]
Kentucky and Virginia Resolutions, [17] (note)
L
Law, presumption of, [31];
test of constitutionality, [30], [31];
bankrupt, insolvent, [37], [38];
postal, [42];
patent, [44];
common, [45];
inspection, [81];
due process of, [95];
what is constitutional? [132], [135];
ex post facto, [22], [171], [224]
Legislatures, State, powers of, [22], [35–37], [53], [90];
discretion of, [54], [79];
appoints presidential electors, [167];
office of, [218]
Limitations, the law of, [164–190]
Lincoln, Levi, on Louisiana purchase, [14]
Lincoln, President, on law of limitations, [166];
on tenure of Cabinet officers, [105]
Liquors, [97], [98]
Louisiana, power to purchase, [13], [14], [15]
M
Madison, defines a republic, [4], [5];
on power of national government, [12], [13]
Mails, [42];
and lottery tickets, [43], [85], [86]
Mandamus, [111]
Manufacture, distinguished from commerce, [73];
right to, [98]
Marque and reprisal, [37]
Marshall, Chief Justice, defines U. S. government, [6], [7];
on taxing power, [9], [10];
on war and treaty-making powers, [15];
enthrones Hamilton’s ideas, [28];
on sovereignty, [34];
distinction by, between State and federal, [51];
on regulation of commerce, [63], [119];
on international law, [148];
lays down principle of constitutional interpretation, [186], [187]
Massachusetts, constitution of 1780, [5]
Measures, [36], [37]
Ministers, public, [119], [120], [137]
Monopolies, [72], [83], [84]
N
Naturalization, [221]
Nobility, title of, [172]
Nuisance, [97]
Nullification, [17]
O
Oath, [2]
Office, legal right to, [91];
constitutional meaning of, [103]
P
Package, original, [75]
Parliament, [21]
Parties, political, interpret the Constitution, [27], [28]
Patent rights, [36], [43]
People, The, sovereign, [2];
author of supreme law, [5], [6];
power to amend constitution, [7];
sovereignty of, [12], [13]
Piracies, [44], [45]
Polygamy, [203]
Possessions, outlying, power of Congress over, [161], [162], [163]
Post offices, [42]
Post roads, [42]
Powers, derivative [2];
original and derivative distinguished, [5];
taxing, [9];
legislative, [18–50];
defined, [18];
character of, [18–50];
separation of, [19], [20];
of respective Houses, [20], [21], [22];
limitations of, [18], [22], [23], [24];
American doctrine of, [19];
parliamentary, [20], [21];
nature and extent of Constitutional, [21];
of Congress reflect eighteenth century ideas, [25], [26];
of Congress derivative, [34], [35];
implied, [36];
conflict between State and federal, [36–39];
implied or expressed, [38], [39], [55];
police, [42–45], [73], [74], [79], [81], [91], [92], [98], [121], [205–208];
of Congress as to crime or immorality, [42];
taxing, [52], et seq.;
of State governments, [55], [56];
judicial review of taxing, [57], [58];
police powers of U. S. and States distinguished, [68];
residuary of States, [73];
taxing by State and U. S. defined, [76];
law of executive, [102–112];
law of judicial, [113–145];
the U. S. Government, [137–139];
exact division between State and federal unknown, [183];
delegated, [191]
Preamble, [26], [76]
President, veto of, [2];
military and naval power, [46];
executes U. S. laws, [46];
character of his decisions, [46], [47];
nature of powers of, [102–112];
oath of, [102];
trial of, [103];
test of execution of office of, [103];
Johnson, [103];
impeachment of, [102], [103], [107], [108]
Principles of Constitutional law, as to sovereignty, [9], [39], [217];
separation of powers, [19];
limitations, [22], [27];
learned from judicial decisions, [30];
as to adequate federal powers, [33], [34], [54];
of natural justice, [50];
as to commerce, [70];
as to the police power, [92];
as to obligation of contracts, [93];
consequentive damages, [99];
of judicial power, [130]; [136];
of federal judicial jurisdiction, [142], [143];
of State comity, [147], [150];
as to powers of Congress, [183];
constitutional interpretation, [186], [187];
fundamental rights, [191–211];
equality of citizens, [217];
due process of law, [219], [220];
of citizenship, [221]
Prohibition, [97], [98]
R
Receipts, publication of, [22]
Residuary sovereignty, [12]
Revenue, bills of, [172]
Rights, the law of fundamental, [190–211];
religious liberty, [191], [195];
freedom of speech, of the press, [196], [197];
right of petition, [197];
exemption from searches and seizures, [197], [198], [225];
life, liberty, property, [199];
realized through the Judiciary, [201];
relation to Constitutional limitations, [202];
trial by jury, [209], [210];
bills of, [210], [211]
S
Senate (U. S.) members, [103], [172], [179];
treaties, [104];
as Court of Impeachment, [108];
represents the States, [180];
election of, [216].
(See also [Congress], [Powers].)
Services, Constitutional meaning of, [103]
Sovereignty, agent of, [2], [3], [4], [5], [6], [8], [9], [10], [11], [12];
delegated to Congress, [19], [20];
of the people, [34];
Hamilton on State and federal, [35], [36];
national, [38], [39], [41], [100];
possessed by U. S. and by States, [47];
State distinguished from federal, [51];
as to commerce, [63];
of Congress over outlying possessions, [161–163]
State (in the Union), quasi-sovereign, [2];
Legislature, [2];
sovereignty of, [6–9], [55], [100];
supremacy of, [34];
powers of Legislatures derivative, [35], [36]
State, powers of legislature extinguished by Congress, [36];
implied powers of, [36];
power to punish counterfeiting, [41], [42];
police power of, [43], [44], [45], [79], [81], [91], [92], [98], [121], [205], [206], [207], [208];
meaning of “State” in the Constitution, [47], [48], [141];
and U. S. possess sovereignty, [47];
subdivisions of, [48];
system of State government distinguished from federal, [51];
power of, over commerce, [64], [67];
limitation of jurisdiction of, [82];
may be petitioned, not suable, [114], [115];
what constitutes a republican form of, [128];
suability, [140];
the word “States” in the Constitution, [141];
jurisdiction of, determined, [147];
principle of relation of State to State, [147], [148];
law of in federal courts, [148];
the States mutually foreign to one another, [148];
rights of citizens of, [149];
admission of a, [156], [157];
the States indestructible, [158];
new States, [173];
limitation of power of, [176–181];
the States as limitations on the U. S., [179], [180];
appoints presidential electors, [179];
subdivision of, [180];
guaranteed a republican form of government, [180];
States and amendment of the Constitution, [180], [181];
citizenship, [213]
Suffrage, [223]
Supreme Court of the U. S., Marshall’s decisions, [28];
principle of interpretation, [31], [34], [39], [186];
on boundary between the federal and State systems, [51];
part of the judicial department, [56];
powers not delegated, [59];
has not defined power over commerce, [63];
nature of power of U. S. over commerce, [65], [76], [77];
decisions on Anti-Trust Act, [83], [84];
on obligation of contracts, [93];
adequacy of its authority, [106];
on executive and ministerial powers, [112];
judicial power of, [113], [114] et seq.;
jurisdiction, original and appellate, [119–136];
on the war power, [127];
nature of jurisdiction, [129–142];
determines constitutional law, [133–135];
jurisdiction under the Judiciary Act, [141];
relation to State tribunals, [144], [145];
as to republican form of government, [155], [156];
decision of as to power of Congress over Territories and possessions, [160–163], [183], [184], [201];
on delegated powers, [175];
jurisdiction when a State is a party, [178];
function of the Judiciary, [185];
power of U. S. to acquire territory, [193];
power vested in, [194];
on the nature of American institutions, [210], [211];
on citizens’ rights, [214];
on “due process of law,” [220];
on the Fifteenth Amendment, [222], [223]
“Sweeping Clause,” [26]
T
Tax, export, [22], [52];
essentials of a good, [52], [60], [61];
income, [58] (and see under [Amendment]);
exemptions, [60];
direct, indirect, [61]
Taxation, law of, [51–62];
by a State, [52–56];
national, [54];
power of U. S. over, [65], [66]
Tender, legal, [38], [39]
Territory, when sovereign, [47];
power of Congress over, [48], [141], [183];
the law of, and of territories, [146–163];
becoming a State, [157], [158];
governed by Congress, [159], [160], [162], [163]
Texas, law of, regulating commerce, [80]
Tickets, lottery, [43], [83], [85]
Treason, [172]
Treaties, [104];
in the Senate, [180]
U
United States, supreme law of, [2] et seq.;
laws of, by whom made, [2];
guarantees republican form of government, [6];
sovereignty of, [8–13];
organization of, reflects popular will, [18];
governmental functions of, [19], [20];
powers of, [20] et seq.;
admiralty, jurisdiction of, [45], [46];
war power of, [46];
and States possess sovereignty, [47];
civil system of, distinguished from State, [51];
powers of, as to States, [54–57];
power over commerce, [63–88];
the peace of, [85];
police power of, [95];
citizenship, [214], [216], [217]
V
Veto, [2]
Vice-President, [108]
W
Waite, Chief Justice, quoted, [92]
Waters, navigable, [46]
Webster, Daniel, his definition of law, [205]
Weights, [36], [37]
Wilson, James, on the Constitution a Bill of Rights, [187], [188]

FOOTNOTES

[1] Art. vi., 2, 3, and Preamble.

[2] Art. i., 7: 2.

[3] The Supreme Court of Mississippi in Sproule v. Fredericks, 69 Miss. 898 (1892), decided that the Constitutional Convention of that State (1890) “wielded the powers of sovereignty specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole Commonwealth.” The Supreme Court of Pennsylvania in Wells v. Bain, 75 Pa. St. 39 (1874), decided that the Convention of 1872 was “not a co-ordinate branch of the government,” and possessed only “delegated powers.” The Supreme Court of the United States, through Marshall, C. J., decided in McCulloch v. Maryland, 4 Wheaton, 316 (1819), that the Constitution which came from the hands of the Federal Convention of 1787 “was a mere proposal, without obligation, or pretensions to it. By the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people; and is declared to be ordained, “in order to@ form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.” The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived by the State governments. The Constitution when thus adopted was of complete obligation, and bound the State sovereignties.” The character of the Constitution, its purport and principles, is examined in Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816). Decision by Story, J.

[4] No. xxxix.

[5] Art. v.

[6] Constitution (1780 to date) Pt. I. Art. iv. The words “substitutes and agents” may be considered equivalent to the modern words “administrative officers.”

[7] Art. iv., 4.