it was the incorporation of a new member into the political body. The union between Texas and the other States was as complete, as perpetual and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through the consent of the States. Considered, therefore, as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union.'

In Knox v. Lee, 21 the court said, speaking through the mouth of Justice Bradley: "The doctrine so long contended for, that the Federal Union was a mere compact of States, and that the States, if they chose, might annul and disregard the acts of the national legislature, or might secede from the Union at their pleasure, and that the General Government had no power to coerce them into submission to the Constitution, should be regarded as definitely and forever overthrown. This has been finally effected by the national power, as it had often been before by overwhelming argument. The United States is not only a government, but it is a National Government, and the only government in this country that has the character of nationality."

Plenitude of Federal powers

The possession by the Federal Government of full

21 12 Wall. 457; 20 L. ed. 287.

power to protect any right and to enforce any law of its own, at any time, and at any place within its territorial limits, against the resistance of individuals, or State officials, acting with or without the authority of State law, has been uniformly asserted by the Supreme Court whenever such an assertion has been necessary. The attitude of the Federal Supreme Court in the case of Ableman v. Booth, decided in 1859, has already been mentioned. Again, after the Civil War, the court said, when confronted by the proposition that because the United States was without any general criminal jurisdiction it might not punish criminally individuals who had violated certain of its laws relating to congressional elections: "It is argued that the preservation of peace and good order in society is not within the powers confided to the government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and power of that government. We hold it to be an incontrovertible principle that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent."

Finally in the Debs case, 22 a case growing out of the great railroad strike in 1894, the plenitude of the Federal power was emphatically stated. Speaking of the right of the National Government to protect, by armed force if necessary, interstate commerce and the transportation of

22 In re Debs, 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092.

the mails, the court said: "If the inhabitants of a single State or a great body of them should combine to obstruct interstate commerce or the transportation of the mails, prosecution of such offenses had in such a community would be doomed in advance to failure. And if the certainty of such failure was known and the National Government had no other way to enforce the freedom of interstate commerce or the transportation of the mails than by prosecution and punishment for interference therewith, the whole interests of the Nation in these respects would be at the absolute mercy of a portion of the inhabitants of a single State. But there is no such incompetency in the National Government. The entire strength of the Nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation and all its militia are at the service of the Nation to compel obedience to its laws."

CHAPTER III

PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION-CIRCUMSTANCES UNDER WHICH THE COURTS WILL HOLD AN ACT OF CONGRESS VOID

Rules governing constitutionality of laws

Because an act of Congress is the declaration of a coordinate branch of the National Government, the courts have established for themselves certain more or less definite rules governing the conditions under which they will undertake to pass upon the constitutionality of Federal statutes. These rules are self-established, under a sense of propriety and expediency, and are not created by any constitutional necessity.

Courts of first instance will not hold an act unconstitutional except in clear cases, but will leave this to the final judgment of the higher courts. Inferior courts hold themselves bound by the prior decisions of superior courts as to the validity of an act, even though new reasons, pro or contra, are raised. The presumption is that all possible arguments were in fact considered by the superior courts. The Supreme Court has held that, ordinarily, it will not hold a law void except by a majority of the full bench.1

The courts will not pass upon the constitutionality of a law except in suits duly brought before them at the instance of parties whose material interests are involved.2

1 New York v. Miln, 8 Pet. 120; 8 L. ed. 888.

2 For a recent review of the doctrine see David Muskrat v. U. S., 219 U. S. 348; 31 Sup. Ct. Rep. 250; 55 L. ed. 246. The force of advisory opinions is discussed in Thayer's Cases on Constitutional Law, 175.

The Supreme Court will not pass adversely upon the validity of an act of Congress unless it is absolutely necessary for it to do so in order to decide the question at issue.3

When it is possible to do so without doing too great violence to the words actually used, the language of a statute will be so restricted as to render the measure constitutional. For the court will always presume that the legislature did not intend to exceed its constitutional powers. Where, however, the scope of the law is plainly expressed, and as such is unconstitutional, the court will not resort to a strained or arbitrary interpretation to bring the law within constitutional limits.5

The court will not permit the unconstitutionality of a particular provision of a law to invalidate the entire law if it is possible to separate the invalid provision from the other provisions without destroying or impairing their efficiency to attain the results evidently intended by the legislature that enacted them. Even when thus separable, however, the court will not hold the remainder of the law valid if there is a doubt whether, the realization of the whole of its will being rendered impossible, the legislature would have desired the execution of a part only."

With the motives of the legislators the courts will not

3 But see Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60, and Dred Scott v. Sandford, 19 How. 393; 15 L. ed. 691.

♦ Knights Templar Indemnity Co. v. Jarman, 187 U. S. 197; 23 Sup. Ct. Rep. 108; 47 L. ed. 139; U. S. v. D. & H. Ry. Co., 213 U. S. 366; 29 Sup. Ct. Rep. 527; 53 L. ed. 836.

5 Howard v. Ill. Cen. R. R. Co., 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. ed. 297; James v. Bowman, 190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979.

6 But see U. S. v. Reese, 92 U. S. 214; 23 L. ed. 563. See also Columbia Law Review, Feb., 1911, article "Partial Unconstitutionality with Special Reference to the Corporation Tax," by Alfred Hayes, Jr.