The character of this supremacy of the “law of the land” is indicated in the Constitution itself: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[405] The fundamental character of the limitations which this provision establishes is seen as it affects the common interests of life. These interests include domestic relations, ordinary business transactions, recognized by common law; the ownership, acquisition, administration, and distribution of estates; peace and good order within the State; schools and education; the erection and care of public highways; personal liberty, freedom of worship, freedom of speech and of the press. These and cognate interests are within the scope and power of the State, and not, unless control over them is specially delegated, within the scope and power of the United States.
In truth, excepting in the election of United States Senators, members of the House of Representatives, and Presidential Electors, the citizen does not participate in federal government; and save through the post office, the customs, the income tax (which directly affects fewer than half a million persons in the United States), and in banking (including the use of the money of the country) the citizen rarely has anything to do with the United States. On the other hand, in the protection of his property, the education of his family, the right of use of highways, the validation of contracts, the rights, privileges and use of multitudinous relations safeguarded by the common law and the statute, it is the State, not the United States, which has first place, and, consequently, constitutional priority.
The exact line of division between State and federal powers is not known. The principle which rules in every attempt to fix this line is that the enumeration of rights and powers in a constitution,—State or federal,—“shall not be construed to deny or disparage others retained by the people”[406] of the State or of the United States.
145. The essential doctrine, here, is set forth by the Supreme Court in a decision which gives almost unlimited power to Congress in certain cases (its power over a Territory, or possession of the United States):
There are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect, or to secure dependencies against legislation manifestly hostile to their real interests.... The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are in this, as in many other instances,—as that for example, of declaring war,—the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often solely rely in all representative government.[407]
The limitation of powers delegated by the people of the United States, in the federal Constitution, or of a State, in its constitution, implies a delegation of powers adequate to performance of legitimate civil functions. The large question involved in every case of a constitutional nature, or constitutional construction, is whether in the discharge of a function, or an office, the government, or any department of it is transcending its delegated powers. This question is of the essence of constitutional law and judicial interpretation.
146. The people interpret their will in their election of executive, legislative, or judiciary, and the elective system prevails for all three in most of the States.[408] The courts interpret the laws in course of performance of their judicial duties, and their interpretation conforms to principles of justice. Thus in addition to the popular restraint, through frequent elections,—there is judicial restraint, or limitation of legislative and executive (but strictly ministerial) powers.[409] The entire case, as to the relation of the judiciary to the legislative, is covered by the rule laid down by the Supreme Court: “It is emphatically the province and duty of the judicial department to say what the law is.”[410] This duty is of State judges as well as federal, for all American judges are alike bound by oath to support the Constitution.[411] Any American judge has jurisdiction to pronounce as to the constitutionality of an act of Congress or of a State legislature. The essential fact necessary in such pronouncement is that the validity of the law is vital to the real interests of a party to the case or controversy before the court. The decision of the court is not an obiter dictum, a mere philosophical opinion, so-called, of the judges, individually, or collectively, based on an interpretation of justice. The constitutionality of the law in question must be an essential part of the issue before the court.
Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another there is presented a question involving the validity of any act of any Legislature, State or federal, and the decision necessarily rests on the competency of the Legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act is constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that by means of a friendly suit, a party beaten in the Legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.[412]
The principle of constitutional interpretation is given by Chief Justice Marshall:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.[413]