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the United States by construction, defeat the will of the people, and effectually change the form of government designed by the Constitution. It means the establishment of a principle which, followed to its ultimate and logical conclusion, means that nothing is reserved to the states or to the people. In the language of Mr. Justice Daniel in the Passenger cases: “Every thing in the nature of civil or political rights is thus engulfed in Federal legislation, and in the power of negotiating treaties."
The power of the Federal Government and the government of Great Britain to provide, by treaty, the terms upon which the citizens of one may take game within the territory of the other, or to agree by treaty that they will fix the time when and the methods by which fish and game may be taken w!thin the territory over which the respective governments have power to prescribe such times and methods, is one thing, but it is another and very different thing for such governments, in such treaty, to provide the Federal Government with the power to prevent its own citizens from taking wild game within the limits of their respective states, when, under the Constitution, the Federal Government possesses no such power.
The learned District Judge who delivered the opinion below seems to have been largely influenced in his decision by the advantages to be obtained through the treaty in question. He says (Printed Abstract, p. 13):
“The people of both countries, of our entire union and of all the states, benefit by the mutual and reciprocal advantages which accrue from this arrangement. If this be so, then the subject matter comes properly within the treaty-making power."
We do not believe that, under the Constitution and the general grant of power to make treaties, it was ever intended that the Federal Government had the power to do anything and everything which it might deem to the advantage of the people. Such power, in ellect, would be unlimited power, because it would embrace within its scope anything and everything.
To this argument we reply in the language of General George Washington:
"If, in the opinion of the people, the distribution of Constitutional powers be in any particular wrong, let it be corrected in the way which the Constitution designates. But let there be no change by usurpation, for this, though it be in one instance be the instrument of good, is the ordinary weapon by which
free governments are destroyed." And in the language of Abraham Lincoln:
"It is my duty and my oath to maintain inviolate the right of the states to order and control, under the Constitution, their own affairs, by their own judgment exclusively. Such maintenance is essential for the prcscrvation of that balance of power on which our institutions rest."
And in the language of Mr. Chief Justice Fuller, in United States v. Knight, 156 U. S. 13:
“Acknowledged evils, however grave and urgent they may appear to be, had better be borne than the risk be run, in the effort to suppress them, of more serious consequences by resort to expedients of even doubtful constitutionality."
In its ultimate analysis the adoption of the TreatySupremacy theory means that the Federal Government, through the treaty-making department of the government, has a general negative upon all state laws passed by the States in the exercise of their reserved powers. In the making of the Constitution a negative, in any form, upon laws passed by the States in the exercise of their reserved powers, was defeated though persistently urged, in some form, by some of the ablest men in the Constitutional Convention. It was universally admitted that under the Constitution as it stood the Federal Government had no such power, and by the first ten amendments the people undertook to forestall any attempt on the part of the Federal Government to obtain such power by construction,
The history of the making of the Constitution of the United States shows beyond question that the most liberal constructionists of the Constitution saw, and frankly admitted, the fundamental limitations of the Federal Government which were inherent in the very nature and character of the Government itself. Recognizing the fundamental limitations of the Federal Government and the extent of the powers reserved to the several states under the Constitution as written, they endeavored and labored to their utmost to insert into the Federal Constitution some provision which would give Congress a negative upon the laws passed by the several states in the exercise of their reserved powers. Mr. Randolph, Mr. Pinckney, Mr. Patterson and Ilamilton all proposed provisions of this nature, but in vain. Mr. Calhoun, speaking of this struggle to subject the reserved powers of the state to a federal negative, says:
“It is not deemed necessary to trace, through the journals of the convention, the history and the fate of these various propositions. It is sufficient to say,—that they were all made, and not one adopted, although perseveringly urged by some of the most talented and influential members of the body, as indispensable to protect the government of the United States, against the apprehended encroachments of the governments of the several states. The fact that they were proposed and so urged proves, conclusively, that it was believed, even by the most distinguished members of the national party, that the former had no right to enforce its measures against the latter, where they disagreed as to the extent of their respective powers,—without some express provision to that effect; while the refusal of the convention to adopt any such provision, under such circumstances, proves, equally conclusively, that it was opposed to the delegation of such powers to the government, or any of its departments, legislative, executive, or judicial, in any form whatever.
“But, if it be possible for doubt still to remain, the ratification of the Constitution by the convention
of Virginia, and the 10th amended article, furnish proofs in confirming so strong that the most skeptical will find it difficult to resist them.” Works of Cal
houn, pp. 266-247. Although these attempts to give the Federal Government some negative upon the reserved powers of the states failed, and although the Nationalists openly recognized the fundamental limitations of the Constitution in herent from the nature and character of the instrument itself, some of the states were not willing to ratify the Constitution until that instrument itsell expressly set forth certain limitations and restrictions upon its own power. In other words, they were unwilling to rest their reserved powers upon the fundamental limitations which arose from the nature and character of the Federal Government, but they insisted upon writing into the Constitution itself express limitations and restrictions upon the power of the Federal Government in relation to the reserved powers of the several states. As a result, some of the states, particularly Virginia, Massachusetts, New Hampshire, South Carolina and New York, deeply concerned about the reserved powers of the states and fearful lest some construction might be put upon the Constitution which would impair, if not destroy, those reserved powers, insisted upon, and put into their ratification of the Constitution, the express conditions laler embodied in the original amendments. The Nationalists in vain insisted that such amendments were unnecessary, because they were secured by the fundamental limitations inherent in the nature and character of the Government. The states took no chances. They believed in the fundamental limitations arising out of the nature of the Federal Government, but they insisted that the Constitution should contain express limitations which future construction could not override. Mr. John C. Calhoun, speaking of Virginia's ratisicaratification, said:
“That her object was to guard against the abuse of construction, the act itself, on its face, and the discussions in her convention abundantly prove. It was done ellectually, as far as it depended on
words. It declares that all powers granted by the Constitution, are derived from the people of the United States; and may be resumed by them when perverted to their injury or oppression; and, that every power not granted, remains with them, and at their will; and that no right of any description can be canceled, abridged, restrained or modified by Congress, the Senate, the Ilouse of Representatives, the President, or any department, or officer of the United States. Language cannot be stronger. Il guards the reserved powers against the government as a whole, and against all its departments and ollicers; and in every mode by which they might be impaired; showing, clearly, that the intention was to place the reserved powers beyond the possible interference and control of the government of the United States." Works of Calhoun, pp. 249-250.
Since the powers reserved to the several states were protected not only by refusal to insert in the Constitution any provision which would give to the Federal Government a negative upon such powers, but also by express limitations upon the construction of enumerated powers, and the specific reservation to the states, respectively, or to the people, of all power not delegated to the United States by the Constitution, nor prohibited by it to the states, it is difficult to understand the logic of the contention which claims for the treatymaking power a negative upon the powers reserved to the several states. A part cannot be greater than the whole; the Federal Government in its entirety cannot be subject to the fundamental limitations arising out of its nature and the conditions of its organization, and to the express limitations written into the Constitution itself, and still, at the same time, the treaty-making power—which is only one of the enumerated powers—be absolute and unlimited. The treaty-making power has no supremacy apart from the Constitution, and can have no authority outside of and beyond the fundamental and express limitations of that instrument.