Tucker's Blackstone

Volume 1 — Appendix
Note D

[Section 3 — Structure and organization of the federal government]

II. I shall now proceed to the second branch of our enquiry; namely; the structure and organization of the federal government of the United States, with its powers, jurisdiction, and rights, as established by the constitution of the United States, either independent of, or connected with, those of the state governments, respectively; together with the mutual relation which subsists between the federal and state governments in virtue of that instrument.

And, here, we may be permitted shortly to repeat some former observations: That, when the whole body of the people are possessed of the supreme power in the state, it is a democracy. That in such a government, the people are in some respects the sovereign, and in others, the subject. That, in the establishment of the constitution or fundamental law by which the state is to be governed, and in the appointment of magistrates, they are the sovereign: when the constitution of the state is fixed, the government organized, and the magistrates are appointed, every citizen is bound to obedience to the sovereign will thus expressed, and consequently becomes a subject.

That, in a democracy, the people ought to do, themselves, whatever they conveniently can; that, what they can not do of themselves, must be committed to the management of ministers chosen by themselves; that they are their trustees and agents; and that a government thus formed and organized, may be stiled a REPRESENTATIVE DEMOCRACY. That, the choice of ministers may be made, either, personally, by the whole body of the people; or by their deputies, chosen for that especial purpose, and in whom they can repose a proper confidence.

That, a number of independent states may unite themselves by one common bond or confederacy, for the purposes of common defence and safety, and for the more perfect preservation of amity between themselves, without any of them ceasing to be a perfect, independent, and sovereign state, retaining every power, jurisdiction and right, which it has not expressly agreed shall be exercised in common by the confederacy of the states; and not by any individual state of the confederacy.

In the commonwealth of Virginia, the constitution, which is the fundamental law of the republic, hath been shewn to be the act of the people 34. The establishment of this constitution was an immediate act of sovereignty by them. They declared, that all power is vested in, and consequently derived from the people. That magistrates are their trustees and servants, and at all times amenable to them. That government is instituted for the common benefit, protection, and security of the people. That no man or set of men are entitled to exclusive or separate emoluments or privileges but in consideration of public services. That the people have a right to uniform government; and, that no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by frequent recurrence to fundamental principles 35. This is the principle of democracy.

By the establishment of this constitution, without any dependence upon any foreign power, Virginia became an independent and sovereign state 36: her rights were naturally the same as any other state's. She might, therefore, perform every act, which any other sovereign state, however constituted, could perform: she was also equal to any other state, or nation, being sovereign and independent 37.

In becoming a member of the federal alliance established between the American states, by the articles of confederation, she expressly retained her sovereignty and independence 38. The constraints put upon the exercise of that sovereignty, by those articles, did not destroy its existence 39.

We have already shewn that this system was defective in not providing the means, for a certain and regular revenue and, that the inefficiency of the system, in that, and perhaps in some other respects, gave rise to the new constitution 40. Of the immediate causes, and the particular motives and reasons which may be supposed to have led to the adoption of this important measure, together with a short history of its origin, progress, and final consummation; as also, of the foundation, and general nature of the new instrument of union between the states, a short explanation has likewise been attempted 41; nevertheless, we shall not unfrequently have occasion to recur to, and perhaps to repeat, the same points, already touched upon; that the student may more perfectly understand, and bear in mind the reasons for the several provisions contained in the constitution, and the subsequent amendments to it, which have been proposed and ratified, and now form a part of it.

In the new instrument of union, there is no express reservation, as in the former, of the sovereignty of the several states; a subject of considerable alarm, and discussion, among those who were opposed to every thing that resembled, or might hazard, a consolidation of them. The advocates of the constitution answered, that "an entire consolidation of the states into one complete national sovereignty, would imply a complete subordination of all the parts; and whatever power might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union, the state governments will clearly retain all the rights of sovereignty, which they had before, and which are not by that act exclusively delegated to the United States. That this exclusive delegation, or rather this alienation of state sovereignty, would only exist in three cases; where the constitution in express terms grants an exclusive authority to the union; where it grants in one instance an authority to the union, and in another prohibits the states from exercising the like authority; and where it grants an authority to the union, to which a similar authority in the states, would be absolutely, and totally contradictory, and repugnant 42." The same writer elsewhere adds, "that it is not a mere possibility of inconvenience in the exercise of some powers, but an immediate and constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty." And further, that "the necessity of a concurrent jurisdiction in certain cases, results from the division of the sovereign power; and the rule that all authorities of which the states are not explicitly divested in favor of the union, remain with them in full vigour, is not only a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument 43." And this constitution, as we have already had occasion to remark, is now confirmed by the subsequent amendments to the constitution, Art. 12. The right of sovereignty, therefore, in all cases not expressly ceded to the United States by the constitution, or prohibited by it to the several states, remains inviolably, with the states; respectively. What powers are comprehended under this reservation, will form a part of our present enquiry.

The institutions of all well constructed governments, as we have before had occasion to remark, have regard to two distinct objects; their connections, intercourse, and commerce with other states, and nations; and, the administration of justice between individuals, the preservation of their own domestic peace, and that of their citizens, and the advancement and promotion of the general happiness and prosperity of all who put themselves under their protection. Where the form of government is national it is the duty of the body politic of the state to attend to all these objects. But where the government is not national, but federal, a division of power necessarily results from such a form of government; and the connections, intercourse and commerce of the confederate republic, with foreign states and nations; and with each other, as sovereign and independent states, naturally fall under the jurisdiction of the federal government, whilst the administration of all their other concerns, whatsoever, as naturally, remains with the states forming the confederacy.

This distinction may be considered as marking out the grand boundary between the limits of federal and of state jurisdiction; but a more intimate union between the states, in certain respects, being thought desirable, this grand boundary has not been strictly adhered to in the federal constitution, but in some few instances the authority of the federal government has been extended beyond it; a remarkable instance of which occurs in the power granted to congress to make uniform laws on the subject of bankruptcies, throughout the United States; a regulation in the strictest sense, municipal, and not federal. These instances are, however, few, and being in derogation of the municipal jurisdiction of the several states, ought for reasons already given to be strictly construed.

With regard to the principles of the organization, and structure of the federal government, whenever it departs from those of a confederate republic, it appears to conform to those of a representative democracy. The representatives in congress are chosen immediately by the people: the president may be chosen in a manner very nearly approaching a popular election, as in this state; though in some others, the election is farther removed from the people; or rather, may be considered as taken away from them by their own legislatures, as in some of the northern states. All officers of the government, including the president, are impeachable for misconduct in office, and on conviction may be removed, and otherwise punished. These are prominent features of a representative democracy. In the appointment of senators it's type is federal : in the mode of appointing the judges, it has been regarded as "squinting at monarchy 44".

The grand boundary which was noticed above, as marking the obvious limits between the federal and state jurisdictions, may be considered as allotting to the former, jurisdiction in all eases arising under the political laws of the confederacy, or such as relate to its general concerns with foreign nations, or to the several states, as members of the confederacy; and to the latter the cognizance of all matters of a civil nature, or such as properly belong to the head of municipal law; except in some few cases, where, by a special provision contained in the constitution, either concurrent, or exclusive, jurisdiction is granted to the federal government. Of this distribution we shall endeavor to take a nearer survey.

The objects of the political laws of a state as mentioned by eminent writer, are, first, to provide for the necessities of the nation.

To encourage labour and industry, to provide necessary workmen, to promote agriculture, to advance commerce, to establish an easy communication between the different parts of the state, to regulate the rates of money, are ranked among the first objects of a good government. To encourage education, the liberal arts, and sciences, justice and polity, and to fortify itself against attacks from without; to preserve peace, to support the dignity and equality of the nation, and to form advantageous connections, and a beneficial intercourse with other states and nations, may be considered as forming the aggregate of the political laws of a nation 45. I say nothing of the advancement of piety and religion; the present age seems to doubt of the necessity of any connection between church and state.

The powers delegated to congress by art. 1. sect. 8, of the new constitution; to the president and senate by art. 2. sect. 2. and 3. and to the judiciary by art. 3. sect. 2. may severally be arranged under one, or the other of these heads.

Of these powers some appear to be exclusively vested in congress, or some other department of the federal government; in others, the states certainly have concurrent, though perhaps subordinate, powers; in a third class it is not easy to determine, the limits of either the state, or federal authority. The administration of justice between the citizens of the same state, appears to be left without reserve, (except in a few instances which will be particularly noticed, in the sequel) to the jurisdiction and control of the state governments.

Thus have we endeavoured to trace the line of separation between the jurisdictions of the federal and the state governments, ....it is however a broad line, extending like the ecliptic, sometimes on one side, and sometimes on the other, of our political equator: but let us examine it more minutely.

All the powers delegated by the people of the United States to the government, whether the federal, or that of the state, must fall under one of the four following heads.

I. Those exclusively granted to the federal government.

II. Those in which the state has unquestionably concurrent, though perhaps subordinate powers with the federal government.

III. Those where the concurrent authority of the state government is questionable; or controlable by congress.

IV. Those reserved to the states, exclusively.

These powers are either legislative, executive, or judiciary: we shall examine them under their respective heads.

I. The powers exclusively granted to the federal government.
Of these,
1. The legislative: or those vested in congress; that body being empowered,
1. To borrow money on the credit of the United States.
2. To regulate commerce
1. With foreign nations;
2. Among the several states; and
3. With the Indian tribes. The commerce between the individuals of the same state, being reserved to the state governments.
3. To coin money, regulate the value thereof, and the value of foreign coin.
4. To fix the standard of weights and measures. These last powers seem to be a necessary appendage to that of regulating commerce.
5. To provide for the punishment of counterfeiting the securities and current coin of the United States.
6. To constitute tribunals, under the federal government, inferior to the supreme court
7. To define and punish,
1. Piracies;
2. Felonies on the high seas;
3. Offences against the law of nations.
8. And to declare the punishment of treason against the United States.
9. To declare war; grant letters of marque and reprisal; and make rules concerning captures on land and water.
10. To provide and maintain a navy, [in time of peace.]
11. To make rules for the regulation and government of the land and naval forces.
12. To raise and support armies, [in time of peace.]

It is at least doubtful whether any such power as that last mentioned, was intended to be entrusted to the government, except in case of eminent danger of hostility: at least beyond the necessary guards for forts, magazines, arsenals, &c. and even in these cases the constitution seems to have provided that the service should be performed by the militia of the United States.

13. To provide for calling forth the militia, when necessary to be employed in the service of the United States.
14. And for governing them when so employed.
15. To provide for organizing and disciplining the militia.
16. To exercise exclusive jurisdiction within the ten miles square, where the seat of government shall be permanently established; and in forts, magazines, arsenals, dock-yards, and other places ceded for the use of the federal government.
17. To prescribe the manner in which the public acts, records and judicial proceedings of the states shall be proved, in order to their obtaining faith and credit in other states, and the effect thereof.
18. To establish an uniform rule of naturalization.
19. And to make all laws necessary and proper for carrying the powers vested in the federal government into execution.
2. The powers vested in the executive department of the government of the United States, are all exclusive of the authority of the state government.
These are,
1. To make treaties.
2. To appoint ambassadors, ministers, and consuls.
3. Judges of the supreme courts, and all other officers of the United States, except such as are vested by congress in the president alone, in the courts of law of the United States, or, in the heads of departments.
3. The judicial power of the United States seems to be exclusively vested in the tribunals of the federal government.
1. In all cases affecting ambassadors, other public ministers and consuls.
2. In all cases, of admiralty and maritime jurisdiction.
3. In controversies between two or more states.
4. In controversies between a state, and any foreign state.
5. In all cases of impeachment against an officer of the federal government.
To which I shall add,
6. In controversies to which the United States are a party, and
7. In all trials for offences against the constitution, or law, of the federal government.

In which two last cases, I am inclined to suppose, that congress are not restrained from vesting the cognizance of any case, comprehended under those heads, in the state courts, should they find it advisable so to do, especially in fiscal proceedings 46, and lesser offences against the peace.

The preceding enumeration seems to comprehend all, the cases applicable to our first head: we shall now proceed to consider.

II. Those in which the state has unquestionably concurrent, though perhaps subordinate powers, with the federal government.
Of these,
1. The legislature hath unquestionable power.
1. To impose taxes, and duties;
2. Excises, for the support of its own domestic establishment.
3. Imposts, or duties on exports, if absolutely necessary for the purpose of executing its inspection laws.
4. To establish post-offices, and
5. Post roads, within its own precincts or territory, so that they do not contravene the establishments of the federal government.
6. To promote the progress of science, and useful arts by securing to the authors and inventors the exclusive right, within the state, to their respective writings and discoveries.
7. To provide for arming the militia of the state; and to call them forth when necessary for their internal defence.
8. To train and keep troops, [in time of war]E1 and
9. Ships of war [in time of war]E1.
10. And to engage in war, when actually invaded; or in such imminent danger as will not admit of delay.
11. And to propose amendments to the federal constitution.
To these we may add, that the judicial power of the state must be presumed to possess concurrent, though perhaps subordinate powers with the courts of the United States in the following cases:
1. In controversies between the state, and
1. The citizens of another state,
2. Foreign citizens, or subjects 47.
2. Between citizens of different states; if the defendant reside within the state claiming jurisdiction.
3. Between citizens of the same state claiming lands within the state, under grants from different states.

In all which cases, there are neither express words, nor any necessary implication that the states should be abridged of the powers in these respects, which as states they must have possessed.... we must therefore refer these powers to the twelfth article of the amendments to the constitution of the United States.

It is no less true, that the federal government possessing powers of deciding in these cases, the decision of the federal judiciary, is according to the principles and nature of our government, paramount to that of the state judiciary. Causes instituted in the state courts are therefore liable to re-examination in the federal courts; and, perhaps in all these cases to removal in the manner pointed out by the act of congress 48.

III. Let us now take a short view of those powers, where the concurrent authority of the state government, either is questionable; or subject to the control of congress.
1. Congress being authorized to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States, it may well be questioned how far the states can possess any concurrent authority, on these subjects.

If, however, a doubt should arise respecting the former, it might be presumed, that the rights intended to be conferred by this uniform rule of naturalization, should be, in general, confined to such as might be derived from the federal government, without infringing those rights which peculiarly appertain to the states. Thus a person naturalized pursuant to the laws of the United States, would undoubtedly acquire every right that any other citizen possesses, as a citizen of the United States, except such as the constitution expressly denies, or defers the enjoyment of; and such as the constitution or laws of the individual states require on the part of those who are candidates for office under the authority of the states. Five years residence, for example, is required by the laws of Virginia, before any naturalized foreigner is capable of being elected to any office under the state. It is presumable that his being naturalized under the laws of the United States would not supercede the necessity of this qualification.

In respect to bankruptcies it may be questioned whether the power of congress extends to cases arising between citizen and citizen of the same state, since their power does not extend to the internal or domestic commerce of the state, as we have already shewn. Yet, on the other hand it may with great strength of reasoning be insisted, that here is a special case in which the power of the federal government extends to internal as well as foreign commerce; and that a contrary construction would probably defeat the constitution, which could not prescribe an uniform rule, without comprehending such cases as well as others.

2. The following powers appear to be vested in the federal government, but may be also exercised by the states, with the consent of the congress, viz.
1. To lay imposts or duties on goods imported into any state, from a foreign state.
2. To lay any duty of tonnage.
3. To keep troops, or
4. Ships of war, in time of peace.
5. To enter into any compact or agreement with any other state, or,
6. With any foreign power.
7. To engage in war when not actually invaded, or in such imminent danger as will not admit of delay.

This finishes the actual enumeration of the powers granted to the federal government, except what relates to the ceded territory, and the erection of new states, and some of the provisions which do not seem necessary to be recapitulated here, though we shall have occasion to notice them hereafter. There remains only to mention,

IV. The powers reserved to the states exclusively 49.

The twelfth article of the amendments to the constitution of the United States, declares, that 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.

The powers absolutely prohibited to the states by the constitution, are, shortly, contained in article 1. section 10. viz.

1. No state shall enter into any treaty, alliance or confederation.
2. Nor grant letters of marque and reprisal.
3. Nor coin money.
4. Nor emit bills of credit.
5. Nor make any thing but gold and silver coin a tender in payment of debts.
6. Nor pass any bill of attainder.
7. Nor any ex post facto law.
8. Nor any law impairing the obligation of contracts.
9. Nor grant any title of nobility.... Concerning all which, we shall make some few observations hereafter.

All other powers of government whatsoever, except these, and such as fall properly under the first or third heads above mentioned, consistent with the fundamental laws, nature, and principle of a democratic state, are therefore reserved to the state governments 50.

From this view of the powers delegated to the federal government, it will clearly appear, that those exclusively granted to it have no relation to the domestic economy of the state. The right of property, with all it's train of incidents, except in the case of authors, and inventors, seems to have been left exclusively to the state regulations; and the rights of persons appear to be no further subject to the control of the federal government, than may he necessary to support the dignity and faith of the nation in it's federal or foreign engagements, and obligations; or it's existence and unity as the depositary and administrator of the political councils and measures of the united republics.... Crimes and misdemeanors, if they affect not the existence of the federal government; or those objects to which it's jurisdiction expressly extends, however heinous in a moral light, are not cognizable by the federal courts; unless committed within certain fixed and determinate territorial limits, to which the exclusive legislative power granted to congress, expressly extends 51. Their punishment, in all other cases, exclusively, belongs to the state jurisprudence.

The federal government then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to it's operation is voluntary: it's councils, it's engagements, it's authority are theirs, modified, and united. It's sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent 52, and still capable, should the occasion require, to resume the exercise of it's functions, as such, in the most unlimited extent.

But until the time shall arrive when the occasion requires a resumption of the rights of sovereignty by the several states (and far be that period removed when it shall happen) the exercise of the rights of sovereignty by the states individually, is wholly suspended, or discontinued, in the cases before mentioned: nor can that suspension ever be removed, so long as the present constitution remains unchanged, but by the dissolution of the bonds of union. An event which no good citizen can wish, and which no good, or wise administration will ever hazard.

34. See Note C. p. 79

35. Bill of Rights, Art. 15.

36. Vattel, B. 1. c. 1. §. 4.

37. Vattel. Introduction, §. 18. 19.

38. Confederation, §. 2.

39. Vattel, B. 1. c. 1. §. 10.

40. Ante. Note D page 140.

41. Ibidem, page 140.

42. Federalist, 1 Vol. p. 196. 197.

43. Ibidem, p. 199. 200.

44. Speech of the late Patrick Henry, Esq. in the Virginia Convention.

45. Vattel, passim.

46. The acts of the 3rd Congress ch. 49, and 65, give to the state courts, jurisdiction in certain cases of this nature.

47. But now by the 13th article of the amendments to the C. U. S. the states have exclusive jurisdiction in these causes.

48. 1. Congress, 1. session, chap. 20. sect. 12.

49. Federalist, vol. I. p.196.

50. The powers delegated by the proposed constitution of the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation and foreign commerce; with which last, the power of taxation will for the most part be connected. The powers reserved to the several states, will extend to all the objects, which in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state....
Federalist, vol. II. p. 82.

51. See the tract upon the common law of England, 4th part.

52. See Vattel, page 18.

E1. In the original text, these words appeared once, to the right of a tall brace that spanned both lines. In this rendering, such a typography is infeasible, so we repeat the words after each line.

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