The Essentials of American Constitutional Law

by Francis Newton Thorpe

6. The quality of supremacy involves and implies sovereignty. Sovereignty is indefinable; is not, strictly speaking, comprehensible. There is therefore a difference between sovereignty and government. Sovereignty ordains and establishes a form of government. The form varies among different peoples and at different times. The Constitution declares that “The United States guarantees to every State in this Union a republican form of government.”[7] This form, in America, is the creation, that is, the creature, of the sovereign, the people. The essential matter here is of powers and relations, and is made clear by Chief Justice Marshall: The government of the United States proceeds directly from the people; is ordained and established in their name for definite purposes declared in the Preamble to the Constitution, and the assent of the States in their sovereign capacity is implied in calling the Convention of 1787, which framed the Constitution, and in submitting that instrument to the people. The people were at perfect liberty to accept or to reject it, and their act was final. It required not the affirmance and could not be negatived by the State governments. When thus adopted, the Constitution was of complete obligation, and bound the State sovereignties.[8] But had not the people of America, in 1787, already surrendered all their powers to the State sovereignties and had nothing more to give? The question whether they may resume and modify the powers granted to their government cannot be raised in this country. The people always possess that power and since 1787 they have exercised it in making seventeen amendments to the Constitution. The legitimacy of the general government might be doubted had it been created by the States, for the States, as governments, are creations of the people, and possess only derivative powers. “The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves.” The States were competent to form a league, such as was the Confederation of 1781,

but when “in order to form a more perfect Union” it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union is emphatically and truly a government of the people. In form and substance it emanates from them. Its powers are granted by them and are to be exercised directly on them, and for their benefit. This government is acknowledged by all to be one of enumerated powers. But the question respecting the extent of the powers actually granted is perpetually recurring, and will probably continue to arise as long as our system shall exist. The government of the Union, though limited in its powers, is supreme within its sphere of action.[9]

This supremacy results from the nature of the government.

It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have in express terms decided it by saying, this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made under its authority, shall be the supreme law of the land, and by requiring executive, legislative, judicial (and administrative) officers to take the oath of fidelity to it.[10]

7. The question of sovereignty arises here and, as commonly stated, of national sovereignty and of State sovereignty. The equal vote allowed each State by the Constitution,[11] “is at once a recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.”[12] Are there two sovereignties in America?

The sovereignty of a State [declares Marshall], extends to everything which exists by its authority, or is introduced by its permission; but does not extend to these means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States. These powers are not given by the people of a single State, but by the people of the United States to a government whose laws, made in pursuance of the Constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them.[13]

8. The exercise of the taxing power illustrates the principle here involved. The power of taxation residing in a State measures the extent of sovereignty which the people of a single State possess, and can confer on its government.

We have a principle (here) [continues Marshall], which leaves the power of taxing the people and property of a State unimpaired; which leaves to a State the command of all its resources, and which places beyond its reach all these powers which are conferred by the people of the United States on the government of the Union, and all these means which are given for the purpose of carrying these powers into execution. We have a principle which is safe for the States and safe for the Union.... The people of the United States did not design to make their government dependent on the States. The government of the Union possesses general powers of taxation.... The people of all the States and the States themselves are represented in Congress, and by their representatives exercise this power. When they tax the chartered institutions of the States, they tax their constituents and these taxes must be uniform.[14] But when a State taxes the operations of the government of the United States, it acts upon institutions created not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others, as well as themselves; for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole, between the laws of a government declared to be supreme, and these of a government which, when in opposition to those laws, is not supreme.... In America, the powers of sovereignty are divided between the government of the Union and those of the States. They are each sovereign with respect to the objects committed to the other.[15]

Plainly the essential matter here is one of functions. Neither the government of the United States nor that of a State is sovereign, for each possesses only delegated powers. But the powers delegated to the two governments are not for all purposes the same, or of equal extent. The two governments have different jurisdictions. Distinctively federal functions are not State functions, as, for example, the distinctively Federal functions of coining money, making treaties, and declaring war.[16] On the other hand, distinctively State functions are the exercise of the police power of the State,[17] the control of intrastate commerce, the power of extradition between States,[18] the validity in a State of the public acts, records, and judicial proceedings of another State[19] and the right of citizens of each State to all privileges and immunities of citizens in the several States.[20]

9. The question of the relative sovereignty of the United States and that of a State is one of jurisdiction, and is determined by extent of powers delegated, not of original powers possessed. Delegated powers are expressed in constitutions and laws. Two governments exist in America: that of the Union and that of the respective States. The Constitution of the United States was ordained and established by the people of the United States for themselves, for their own government and not for the government of the individual States.[21] The constitution of a State is made by the people of that State for themselves only. Sovereignty in America has declared the Constitution of the United States the supreme law of the land, thus formally relegating State constitutions and laws to inferior rank,—that is, to a position of powerlessness when in conflict with the supreme law. Thus when we speak of two “sovereignties,” or of “residuary sovereignty,” we really mean “two governments of delegated powers,”—that is, the State governments and the national government. When we speak of the two sovereignties, we do not mean sovereignty (which is by nature indivisible), but government (which is divisible), the creation of sovereignty and, unlike sovereignty, possesses only delegated powers.