PROHIBITIONS ON THE STATES.
§ 1395. The next clause of the
constitution is, "No state shall, without the consent of congress,
lay any duty on tonnage; keep troops, or ships of war in time of peace;
enter into any agreement or compact with another state, or with a foreign
power, or engage in war, unless actually invaded, or in such imminent
danger, as will not admit of delay."
§ 1396. The first part of this clause,
respecting laying a duty on tonnage, has been already considered. The
remaining clauses have their origin in the same general policy and
reasoning, which forbid any state from entering into any treaty, alliance,
or confederations and from granting letters of marque and reprisal. In
regard to treaties, alliances, and confederations they are wholly
prohibited. But a state may, with the consent of congress, enter
into an agreement, or compact with another state, or with a foreign power.
What precise distinction is here intended to be taken between treaties,
and agreements, and compacts is nowhere explained; and has
never as yet been subjected to any exact judicial, or other examination. A
learned commentator, however, supposes, that the former ordinarily relate
to subjects of great national magnitude and, importance, and are often
perpetual, or for a great length of time; but that the latter relate to
transitory, or local concerns, or such, as cannot possibly affect any
other interests, but those of the parties. 1
But this is at best a very loose, and unsatisfactory exposition, leaving
the whole matter open to the most latitudinarian construction. What are
subjects of great national magnitude and importance? Why may not a
compact, or agreement between states, be perpetual? If it may not, what
shall be its duration? Are not treaties often made for short periods, and
upon questions of local interest, and for temporary objects?
§ 1397. Perhaps the language of the
former clause may be more plausibly interpreted from the terms used, "treaty,
alliance, or confederation," and upon the ground, that the sense of
each is best known by its association (noscitur a sociis) to apply
to treaties of a political character; such as treaties of alliance for
purposes of peace and war; and treaties of confederation, in which the
parties are leagued for mutual government, political co-operation, and the
exercise of political sovereignty; and treaties of cession of sovereignty,
or conferring internal political jurisdiction, or external political
dependence, or general commercial privileges. 3
The latter clause, "compacts and agreements," might then very
properly apply to such, as regarded what might be deemed mere private
rights of sovereignty; such as questions of boundary; interests in land,
situate in the territory of each other; and other internal regulations for
the mutual comfort, and convenience of states, bordering on each other.
Such compacts have been made since the adoption of the constitution. The
compact between Virginia and Kentucky, already alluded to, is of this
number. Compacts, settling the boundaries between states, are, or may be,
of the same character. In such cases, the consent of congress may be
properly required, in order to check any infringement of the rights of the
national government; and at the same time a total prohibition, to enter
into any compact or agreement, might be attended with permanent
inconvenience, or public mischief.
§ 1398. The other prohibitions in the
clause respect the power of making war, which is appropriately confided to
the national government. 4 The
setting on foot of an army, or navy, by a state in times of peace, might
be a cause of jealousy between neighbouring states, and provoke the
hostilities of foreign bordering nations. In other cases, as the
protection of the whole Union is confided to the national arm, and the
national power, it is not fit, that any state should possess military
means to overawe the Union, or to endanger the general safety. Still, a
state may be so situated, that it may become indispensable to possess
military forces, to resist an expected invasion, or insurrection. The
danger may be too imminent for delay; and under such circumstances, a
state will have a right to raise troops for its own safety, even without
the consent of congress. After war is once begun, there is no doubt, that
a state may, and indeed it ought to possess the power, to raise forces for
its own defence; and its co-operation with the national forces may often
be of great importance, to secure success and vigour in the operations of
war. The prohibition is, therefore, wisely guarded by exceptions
sufficient for the safety of the states, and not justly open to the
objection of being dangerous to the Union.
§ 1399. In what manner the consent of
congress is to be given to such acts of the state, is not positively
provided for. Where an express consent is given, no possible doubt can
arise. But the consent of congress may also be implied; and, indeed, is
always to be implied, when congress adopts the particular act by
sanctioning its objects, and aiding in enforcing them. Thus, where a state
is admitted into the Union, notoriously upon a compact made between it and
the state, of which it previously composed a part; there the act of
congress, admitting such state into the Union, is an implied consent to
the terms of the compact. This was true, as to the compact between
Virginia and Kentucky, upon the admission of the latter into the Union;
5 and the like rule will apply to
other states, such as Maine, more recently admitted into the Union.
§ 1400. We have thus passed through the
positive prohibitions introduced upon the powers of the states. It will be
observed, that they divide themselves into two classes; those, which are
political in their character, as an exercise of sovereignty; and those,
which more especially regard the private rights of individuals.
6 In the latter, the prohibition
is absolute and universal. In the former, it is sometimes absolute and
sometimes subjected to the consent of congress. It will, at once, be
perceived, how full of difficulty and delicacy the task was to reconcile
the jealous tenacity of the states over their own sovereignty, with the
permanent security of the national government, and the inviolability of
private rights, The task has been accomplished with eminent success. If
every thing has not been accomplished, which a wise forecast might have
deemed proper for the preservation of our national rights and liberties,
in all political events, much has been done to guard us against the most
obvious evils, and to secure a wholesome administration of private
justice. To have attempted more, would probably have endangered the whole
fabric; and thus have perpetuated the dominion of misrule and imbecility.
§ 1401. It has been already seen, and
it will hereafter more fully appear, that there are implied, as well as
express, prohibitions in the constitution upon the power of the states.
Among the former, one clearly is, that no state can control, or abridge,
or interfere with the exercise of any authority under the national
government. 7 And it may be added,
that state laws, as, for instance, state statutes of limitations, and
state insolvent laws, have no operation upon the rights or contracts of
the United States. 8
§ 1402. And here end our commentaries
upon the first article of the constitution, embracing the organization and
powers of the legislative department of the government, and the
prohibitions upon the state and national governments. If we here pause,
but for a moment, we cannot but be struck with the reflection, how
admirably this division and distribution of legislative powers between the
state and national governments is adapted to preserve the liberty, and
promote the happiness of the people of the United States. To the general
government are assigned all those powers, which relate to the common
interests of all the states, as comprising one confederated nation. While
to each state is reserved all those powers, which may affect, or promote
its own domestic interests, its peace, its prosperity, its policy, and its
local institutions. At the same time, such limitations and restraints are
imposed upon each government, as experience has demonstrated to be wise to
control any public functionaries, or as are indispensable to secure the
harmonious operations of the Union. 9
§ 1403. A clause was originally
proposed, and carried in the convention, to give the national legislature
a negative upon all laws passed by the states, contravening, in the
opinion of the national legislature, the articles of the Union, and
treaties subsisting under its authority. This proposition was, however,
afterwards negatived; and finally abandoned. 10
A more acceptable substitute was found in the article, (hereafter to be
examined,) which declares, that the constitution, laws, and treaties of
the United States shall be the supreme law of the land.
1. 1 Tucker's Black. Comm. App. 310.
2. The corresponding article of the
confederation did not present exactly the same embarrassments in its
construction. One clause was, "No state, without the consent of the
United States, in congress assembled, shall enter into any conference,
agreement, alliance, or treaty with any king, prince, or state"; and "No
two or more states shall enter into any treaty, confederation, or alliance
whatever between them, without the consent of the United States, &c.;
specifying accurately the purposes, for which the same is to be entered
into, and how long it shall continue." Taking both clauses, it is
manifest, that the former refers exclusively to foreign states, or
nations; and the latter to the states of the Union.
3. In this view, one might be almost
tempted to conjecture, that the original reading was "treaties of
alliance, or confederation," if the corresponding article of the
confederation (art. 6) did not repel it.
4. There were corresponding
prohibitions in the confederation, (art. 6,) which differ more in form,
than in substance, from these in the constitution. No state was at
liberty, in time of peace, to keep up vessels of war, or land forces,
without the consent of congress. Nor was any state at liberty to engage in
war without the consent of congress, unless invaded, or in imminent danger
5. Green v. Biddle, 8 Wheat.
R. 1, 85, 86, 87.
6. See Ogden v. Saunders, 12
Wheat. R. 334, 335.
7. 1 Kent's Comm. Lect. 19, p. 382.
8. United States v. Wilson,
8 Wheat. R. 253; United States v. Hoar, 2 Mason R. 311.
9. 1 Tuck. Black. Comm. App. 314.
10. Journal of Convention, 68, 86,
87, 104, 107, 136, 183, 283; North American Review, October, 1827, p. 264,
266; 2 Pitkin's History, 261. -- This seems to have been a favourite
opinion or Mr. Madison, as well as of some other distinguished statesmen.
North American Review, October, 1827, p. 264, 265, 266; 2 Pitkin's
History, 251, 259.