States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." It was, indeed, for a time strenuously argued by adherents of the States' Rights school that the right of final determination as to whether there is a conflict between State and Federal law was possessed by the State courts as well as by the Federal Supreme Court, in cases arising therein, but, the Federal supremacy being conceded the right to hold State laws invalid because contrary to the Federal Constitution and to the laws passed and treaties entered into in pursuance thereof is not a different power from that known to or exercised by all constitutional States, when dealing with the acts or ordinances of subordinate lawmaking bodies, as for example of colonial or local legislatures, or, indeed, of administrative agencies with reference to the rules and regulations issued by them. Here the general doctrine of principal and agent applies. When, however, we turn to the power of our Federal courts to hold void the acts of Congress, or of the State courts to refuse recognition to the acts of the legislatures of their respective States, the question is quite another one. Here we have the exercise by the judicial branch of a government of the right to place its interpretation of the power granted by a written Constitution above the interpretation which the legislative branch of that same government has given it. In all countries other than our own the legislative interpretation is recognized as decisive.

The general principle is that a law held void, because unconstitutional, is as though it had never been. It is declared never to have been a law, and hence that no legal rights can be claimed under it. If, however, by a later decision, the court reverses its former opinion, and upholds the law, it is considered as having been in force

and valid from the time of its enactment. In practice, as a matter of justice and of expediency, these principles have at times been departed from, but in general the rule is as stated.?

The expediency of giving this power to the courts is of course, open to discussion. That it is a tremendous power cannot be questioned. As said by Bishop Hoadly years before our Constitution was adopted, "whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first wrote or spoke them." It would seem clear that by training, by tenure of office, and by the character of the functions which they perform, the judges of the Federal Supreme Court and of the highest courts of the States, are less likely to be hurried on, under the pressure of passion or of temporary exigency, to such a violation of the spirit, or to such a strained construction of the language, of the Constitution as will deprive that instrument of its true restraining character. But, upon the other hand, there is the danger, which not a few persons think has in some instances become a reality, that the judges, not being in close touch with or responsible to public opinion, will assume an unnecessarily strict or biased attitude towards the constitutional powers of the legislature, and especially towards those relating to what is known as the police powers of the State. In general, however, it is to be said that the courts, have, by the rules which they have laid down for themselves with reference to the validity of legislative acts, kept their authority within just and expedient limits. These rules are considered in Chapter III.

7 Norton v. Shelby Co., 118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 178. But see Gelpcke v. Dubuque, 1 Wall. 175; 17 L. ed. 520; and exceptions coming under the doctrine of de facto officers and corporations acting under unconstitutional statutes.

CHAPTER II

THE SUPREMACY OF FEDERAL AUTHORITY

Federal supremacy

The supremacy of the Federal Government, when operating within its constitutional sphere, over all persons and bodies politic within its territorial limits, is no longer open to question. That the extent of this Federal constitutional sphere of action is to be determined in the last resort by the Federal Supreme Court, is equally well settled.

The maintenance of this supremacy unimpaired, while at the same time preserving to the States their proper autonomy and independence of action, has, however, been a difficult task; and, so long as the Federal form is retained, this task will continue to tax to the utmost the legal and political abilities of our courts and political bodies. With a quite proper motive those who have controlled the public actions of the States, and those who have guided the activities of the United States, have sought for their respective governments the greatest possible constitutional power and independence, and, therefore, have not hesitated to occupy debatable territory. Thus, without there being any denial of the supremacy of the Federal law, when operating within its proper field, or of the right of the Federal Supreme Court to determine, in final resort, the extent of that proper field, frequent conflicts have resulted. These conflicts in their many and varied forms furnish much of the material for the present treatise, and they will be severally considered in their proper places.

For the manner in which the Federal supremacy is in practice maintained, especial reference may, however, be made to the chapters and sections dealing with the immunity of Federal agencies from State taxation; the power of the Supreme Court to review decisions of State courts adverse to privileges, rights, and immunities claimed under the Federal Constitution, treaties or laws; the removal of cases from State to Federal courts; the issuance by Federal courts of writs of habeas corpus directed to State officials; and the independence of Federal courts from State interference or control. It will, however, be appropriate to refer here to certain cases in which the supremacy of the Federal authority has been broadly stated and under circumstances which have given especial weight and importance to the assertion.

In general it may be stated that in no instance has the Supreme Court failed to assert the supremacy of the Federal power when its authority has been attacked by the States. Only four years after the adoption of the Constitution the court upheld its right under the Constitution as it then stood, i. e., before the adoption of the Eleventh Amendment, to entertain a suit against the State of Georgia brought by a citizen of another State.1 The next year the court clearly intimated that it would disregard a State law in conflict with a Federal treaty. The supremacy of Federal law was again asserted the next year in Penhallow v. Doane,2 and in 1796 in Ware v. Hylton. In Calder v. Bull 4 the doctrine was definitely asserted, though its application was not found necessary, that a State law in conflict with the Federal Constitu

3

1 Chisholm v. Georgia, 2 Dall. 419; 1 L. ed. 440.

23 Dall. 54; 1 L. ed. 507.

3 3 Dall. 199; 1 L. ed. 568.

3 Dall. 386; 1 L. ed. 648.

tion would be disregarded. In 1809, in United States v. Peters this action became necessary and the doctrine was applied, Chief Justice Marshall, speaking for the unanimous court, saying: "The State of Pennsylvania can possess no constitutional right to resist the legal process. which may be directed in this cause." "It will be readily conceived," the great Chief Justice concludes, "that the order which this court is enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and, therefore, must be performed. A peremptory mandamus must be awarded."

In 1810 and 1812 State laws were again held void by the Supreme Court because in conflict with the Federal Constitution. Finally, in the great case of McCulloch v. Maryland,' decided in 1819, not only was a State law held void, but the general doctrine declared that the State cannot, in the exercise of its reserved powers, even of the highest of them, interfere with the operation of a Federal agency though that agency be one of convenience only and not of necessity to the United States. "The States have no power," it was declared, "by taxation or otherwise, to retard, impede, burden or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the Federal Government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared."

8

In Martin v. Hunter's Lessee, decided in 1816, and

55 Cr. 115; 3 L. ed. 53.

Fletcher v. Peck, 6 Cr. 87; 3 L. ed. 162; New Jersey v. Wilson, 7 Cr. 164; 3 L. ed. 303.

7 4 Wh. 316; 4 L. ed. 579.

81 Wh. 304; 4 L. ed. 97.