The Constitution of the United States of America: Analysis and Interpretation

era

n the other, which division is governed by the rule that the former is "a government of enumerated powers" while the latter are governments of "residual powers"; (3) the direct operation, for the most part, of each of these centers of government, within its assigned sphere, upon all persons an

e laws of the union. This, indeed, was the system provided in the Articles of Confederation. The Convention of 1787 was well aware, of course, that if the inanities and futilities of the Confederation were to be avoided in the new system, the latter must incorporate "a coercive principle"; and as Ellsworth of Connecticut expressed it, the only question was wheth

Article VI, paragraph 2) of the Constitution, was the very keystone of Chief Justice Marshall's constitutional jurisprudence. It was Marshall's position that the supremacy clause was intended to be applied literally, so that if an unforced reading of the terms in which legislative power was granted to Congress confirmed its right to enact a par

tes by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In construing this provision the Court under Taney sometimes talked as if it regarded all th

organ of the National Government and of its supremacy. The Court under Taney regarded itself as standing outside of and above both the National Government and the States, and as vested with a quasi-arbitral function be

oachment upon their reserved rights by the general government.... So long ... as this Constitution shall endure, this tribunal must exist with it, deciding in the peaceful

neral constitutional issue between the Court and the Franklin D. Roosevelt program in such cases as Schechter Corp. v. United States and Carter v. Carter Coal Co.[13] was, whether Marshall's or Taney's brand of federalism should prevail. More precisely, the i

are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law, it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And

rce on other than certain prescribed terms. And in United States v. Darby[15] this Act was sustained by the Court, in all its sweeping provisions, on the basis of an opinion by Chief Justice Stone which in turn is based on Chief Justice Marshall's famous opinions in McCulloch v. Marylan

Marshall's death and the cases of the 1930's, the conception of the federal relationship which on the whole prevailed with the Court was a competitive conception, one which envisaged the National Government and the States as jealous rivals. To be sure, we occasionally get some striking statements of contrary ten

must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation ar

e of private immunity from taxation, so that, for example, neither government could tax as income the official salaries paid by the other government.[18] This doctrine traces immediately to Marshall's famous judgment in McCulloch v. Maryland,[19] and bespeaks a conception of the federal relati

nception on which the recent social and economic legislation professes to rest. It is the conception which the Court invokes throughout its decisions in sustaining the Social Security Act of 1935 and supplementary state legislation. It is the conception which underlies congressional legislation of recent years making certain

937, namely, that the States, competing as they do with one another to attract investors, have not been able to embark separately upon expensive programs of relief and social insurance. Another great objection to Cooperative Federalism is more difficult to meet. This is, that Cooperative Federalism invites further aggrandizement of national power. Unquestionably it does, fo

separately or in combination, may be thought to grant power adequate to such measures. In spite of such recent decisions as that in United States v. Darby, this time-honored doctrine still guides the authoritative interpreters of the Constitution in determining the validity of acts which are passed by Congress in presumed exerc

ided by the Supreme Court in 1795, certain counsel thought it

endence on a foreign power, is a sovereign state. In every society there must be a sovereignty. 1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. sec. 4.

ecessary to comment on this argument, which on

ourt itself frequently brought the same general outlook to questions affecting the National Government's powers in the field of foreign relations. Thus in the Chinese Exclusi

their relation to foreign countries and their subjects or citizens, are one nation, invested with the powers which belong to independent nat

t to deport alien residents at the option of Congress wa

poration, with World War I a still recent memory, took over bodily counsel's argument of 140 years

the Union.... It results that the investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude p

powers; it is an inherent power, one which is attributable to the National Government on the ground solely of its belonging to the American