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Preamble to the United States Constitution

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The Preamble to the United States Constitution is a brief introductory statement of the Constitution's fundamental purposes and guiding principles. It states in general terms, and courts have referred to it as reliable evidence of the Founding Fathers' intentions regarding the Constitution's meaning and what they hoped the Constitution would achieve.

Text

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[note 1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Drafting

The Preamble was placed in the Constitution during the last days of the Constitutional Convention by the Committee on Style, which wrote its final draft, with Gouverneur Morris leading the effort, it was not proposed or discussed on the floor of the convention beforehand. The initial wording of the preamble did not refer to the people of the United States, rather, it referred to people of the various states, which was the norm; in earlier documents, including the 1778 Treaty of Alliance with France, the Articles of Confederation, and the 1783 Treaty of Paris recognizing American independence, the word "people" was not used, and the phrase the United States was followed immediately by a listing of the states, from north to south.[1] The change was made out of necessity, as the Constitution provided that whenever the popularly elected ratifying conventions of nine states gave their approval, it would go into effect for those nine, irrespective of whether any of the remaining states ratified.[2]

Meaning and application

The Preamble serves solely as an introduction, and does not assign powers to the federal government,[3] nor does it provide specific limitations on government action. Due to the Preamble's limited nature, no court has ever used it as a decisive factor in case adjudication,[4] except as regards frivolous litigation.[5]

Judicial relevance

The courts have shown interest in any clues they can find in the Preamble regarding the Constitution's meaning.[6] Courts have developed several techniques for interpreting the meaning of statutes and these are also used to interpret the Constitution,[7] as a result, the courts have said that interpretive techniques that focus on the exact text of a document[8] should be used in interpreting the meaning of the Constitution. Balanced against these techniques are those that focus more attention on broader efforts to discern the meaning of the document from more than just the wording;[9] the Preamble is also useful for these efforts to identify the "spirit" of the Constitution.

Additionally, when interpreting a legal document, courts are usually interested in understanding the document as its authors did and their motivations for creating it;[10] as a result, the courts have cited the Preamble for evidence of the history, intent and meaning of the Constitution as it was understood by the Founders.[11] Although revolutionary in some ways, the Constitution maintained many common law concepts (such as habeas corpus, trial by jury, and sovereign immunity),[12] and courts deem that the Founders' perceptions of the legal system that the Constitution created (i.e., the interaction between what it changed and what it kept from the British legal system[13]) are uniquely important because of the authority "the People" invested them with to create it.[14] Along with evidence of the understandings of the men who debated and drafted the Constitution at the Constitutional Convention, the courts are also interested in the way that government officials have put into practice the Constitution's provisions, particularly early government officials,[15] although the courts reserve to themselves the final authority to determine the Constitution's meaning.[16] However, this focus on historical understandings of the Constitution is sometimes in tension with the changed circumstances of modern society from the late 18th century society that drafted the Constitution; courts have ruled that the Constitution must be interpreted in light of these changed circumstances.[17] All of these considerations of the political theory behind the Constitution have prompted the Supreme Court to articulate a variety of special rules of construction and principles for interpreting it,[18] for example, the Court's rendering of the purposes behind the Constitution have led it to express a preference for broad interpretations of individual freedoms.[19]

Examples

An example of the way courts utilize the Preamble is Ellis v. City of Grand Rapids.[20] Substantively, the case was about eminent domain, the City of Grand Rapids wanted to use eminent domain to force landowners to sell property in the city identified as "blighted", and convey the property to owners that would develop it in ostensibly beneficial ways: in this case, to St. Mary's Hospital, a Catholic organization, this area of substantive constitutional law is governed by the Fifth Amendment, which is understood to require that property acquired via eminent domain must be put to a "public use". In deciding whether the proposed project constituted a "public use", the court pointed to the Preamble's reference to "promot[ing] the general Welfare" as evidence that "[t]he health of the people was in the minds of our forefathers".[21] "[T]he concerted effort for renewal and expansion of hospital and medical care centers, as a part of our nation's system of hospitals, is as a public service and use within the highest meaning of such terms. Surely this is in accord with an objective of the United States Constitution: '* * * promote the general Welfare.'"[22]

On the other hand, courts will not interpret the Preamble to give the government powers that are not articulated elsewhere in the Constitution. United States v. Kinnebrew Motor Co.[23] is an example of this. In that case, the defendants were a car manufacturer and dealership indicted for a criminal violation of the National Industrial Recovery Act. The Congress passed the statute in order to cope with the Great Depression, and one of its provisions purported to give to the President authority to fix "the prices at which new cars may be sold",[24] the dealership, located in Oklahoma City, had sold an automobile to a customer (also from Oklahoma City) for less than the price for new cars fixed pursuant to the Act. Substantively, the case was about whether the transaction in question constituted "interstate commerce" that Congress could regulate pursuant to the Commerce Clause,[25] although the government argued that the scope of the Commerce Clause included this transaction, it also argued that the Preamble's statement that the Constitution was created to "promote the general Welfare" should be understood to permit Congress to regulate transactions such as the one in this case, particularly in the face of an obvious national emergency like the Great Depression. The court, however, dismissed this argument as erroneous[26] and insisted that the only relevant issue was whether the transaction that prompted the indictment actually constituted "interstate commerce" under the Supreme Court's precedents that interpreted the scope of the Commerce Clause.[27]

Interpretation

Aspects of national sovereignty

The Preamble's reference to the "United States of America" has been interpreted over the years to explain the nature of the governmental entity that the Constitution created (i.e., the federal government). In contemporary international law, the world consists of sovereign states (or "sovereign nations" in modern equivalent). A state is said to be "sovereign," if any of its ruling inhabitants are the supreme authority over it; the concept is distinct from mere land-title or "ownership."[28] While each state was originally recognized as sovereign unto itself, the Supreme Court held that the "United States of America" consists of only one sovereign nation with respect to foreign affairs and international relations; the individual states may not conduct foreign relations.[29] Although the Constitution expressly delegates to the federal government only some of the usual powers of sovereign governments (such as the powers to declare war and make treaties), all such powers inherently belong to the federal government as the country's representative in the international community.[30]

Domestically, the federal government's sovereignty means that it may perform acts such as entering into contracts or accepting bonds, which are typical of governmental entities but not expressly provided for in the Constitution or laws.[31] Similarly, the federal government, as an attribute of sovereignty, has the power to enforce those powers that are granted to it (e.g., the power to "establish Post Offices and Post Roads"[32] includes the power to punish those who interfere with the postal system so established).[33] The Court has recognized the federal government's supreme power[34] over those limited matters[35] entrusted to it. Thus, no state may interfere with the federal government's operations as though its sovereignty is superior to the federal government's (discussed more below); for example, states may not interfere with the federal government's near absolute discretion to sell its own real property, even when that real property is located in one or another state.[36] The federal government exercises its supreme power not as a unitary entity, but instead via the three coordinate branches of the government (legislative, executive, and judicial),[37] each of which has its own prescribed powers and limitations under the Constitution;[38] in addition, the doctrine of separation of powers functions as a limitation on each branch of the federal government's exercise of sovereign power.[39]

One aspect of the American system of government is that, while the rest of the world now views the United States as one country, domestically American constitutional law recognizes a federation of state governments separate from (and not subdivisions of) the federal government, each of which is sovereign over its own affairs.[40] Sometimes, the Supreme Court has even analogized the States to being foreign countries to each other to explain the American system of State sovereignty.[41] However, each state's sovereignty is limited by the U.S. Constitution, which is the supreme law of both the United States as a nation and each state;[42] in the event of a conflict, a valid federal law controls.[43] As a result, although the federal government is (as discussed above) recognized as sovereign and has supreme power over those matters within its control, the American constitutional system also recognizes the concept of "State sovereignty," where certain matters are susceptible to government regulation, but only at the State and not the federal level,[44] for example, although the federal government prosecutes crimes against the United States (such as treason, or interference with the postal system), the general administration of criminal justice is reserved to the States.[45] Notwithstanding sometimes broad statements by the Supreme Court regarding the "supreme" and "exclusive" powers the State and Federal governments exercise,[46] the Supreme Court and State courts have also recognized that much of their power is held and exercised concurrently.[47]

People of the United States

The phrase "People of the United States" has sometimes been understood to mean "citizens." This approach reasons that, if the political community speaking for itself in the Preamble ("We the People") includes only citizens, by negative implication it specifically excludes non-citizens in some fashion.[48] It has also been construed to mean something like "all under the sovereign jurisdiction and authority of the United States."[49] The phrase has been construed as affirming that the national government created by the Constitution derives its sovereignty from the people,[50] (whereas "United Colonies" had identified external monarchical sovereignty) as well as confirming that the government under the Constitution was intended to govern and protect "the people" directly, as one society, instead of governing only the states as political units.[51] The Court has also understood this language to mean that the sovereignty of the government under the U.S. Constitution is superior to that of the States.[52] Stated in negative terms, the Preamble has been interpreted as meaning that the Constitution was not the act of sovereign and independent states.[53]

The popular nature of the Constitution

The Constitution claims to be an act of "We the People." However, because it represents a general social contract, there are limits on the ability of individual citizens to pursue legal claims allegedly arising out of the Constitution. For example, if a law was enacted which violated the Constitution, not just anybody could challenge the statute's constitutionality in court; instead, only an individual who was negatively affected by the unconstitutional statute could bring such a challenge.[54] For example, a person claiming certain benefits that are created by a statute cannot then challenge, on constitutional grounds, the administrative mechanism that awards them,[55] these same principles apply to corporate entities,[56] and can implicate the doctrine of exhaustion of remedies.[57]

In this same vein, courts will not answer hypothetical questions about the constitutionality of a statute,[58] the judiciary does not have the authority to invalidate unconstitutional laws solely because they are unconstitutional, but may declare a law unconstitutional if its operation would injure a person's interests.[59] For example, creditors who lose some measure of what they are owed when a bankrupt’s debts are discharged cannot claim injury, because Congress’ power to enact bankruptcy laws is also in the Constitution and inherent in it is the ability to declare certain debts valueless.[60] Similarly, while a person may not generally challenge as unconstitutional a law that they are not accused of violating,[61] once charged, a person may challenge the law's validity, even if the challenge is unrelated to the circumstances of the crime.[62]

Where the Constitution is legally effective

The Preamble has been used to confirm that the Constitution was made for, and is binding only in, the United States of America,[63] for example, in Casement v. Squier,[64] a serviceman in China during World War II was convicted of murder in the United States Court for China. After being sent to prison in the State of Washington, he filed a writ of habeas corpus with the local federal court, claiming he had been unconstitutionally put on trial without a jury,[65] the court held that, since his trial was conducted by an American court and was, by American standards, basically fair, he was not entitled to the specific constitutional right of trial by jury while overseas.[66]

Since the Preamble declares the Constitution to have been created by the "People of the United States", "there may be places within the jurisdiction of the United States that are no part of the Union."[67] The following examples help demonstrate the meaning of this distinction:[68]

  • Geofroy v. Riggs, 133 U.S. 258 (1890): the Supreme Court held that a certain treaty between the United States and France which was applicable in "the States of the Union" was also applicable in Washington, D.C., even though it is not a state or a part of a state.
  • De Lima v. Bidwell, 182 U.S. 1 (1901): the Supreme Court ruled that a customs collector could not, under a statute providing for taxes on imported goods, collect taxes on goods coming from Puerto Rico after it had been ceded to the United States from Spain, reasoning that although it was not a State, it was under the jurisdiction of U.S. sovereignty, and thus the goods were not being imported from a foreign country. However, in Downes v. Bidwell, 182 U.S. 244 (1901), the Court held that the Congress could constitutionally enact a statute taxing goods sent from Puerto Rico to ports in the United States differently from other commerce, in spite of the constitutional requirement that "all Duties, Imposts and Excises shall be uniform throughout the United States,"[69] on the theory that although Puerto Rico could not be treated as a foreign country, it did not count as part of the "United States" and thus was not guaranteed "uniform" tax treatment by that clause of the Constitution. This was not the only constitutional clause held not to apply in Puerto Rico: later, a lower court went on to hold that goods brought from Puerto Rico into New York before the enactment of the tax statute held constitutional in Downes, could retroactively have the taxes applied to them notwithstanding the Constitution's ban on ex post facto laws, even if at the time they were brought into the United States no tax could be applied to the goods because Puerto Rico was not a foreign country.[70]
  • Ochoa v. Hernandez y Morales, 230 U.S. 139 (1913): the Fifth Amendment's requirement that "no person shall . . . be deprived of . . . property, without due process of law" was held, by the Supreme Court, to apply in Puerto Rico, even though it was not a State and thus not "part" of the United States.

To form a more perfect Union

The phrase "to form a more perfect Union" has been construed as referring to the shift to the Constitution from the Articles of Confederation;[71] in this transition, the "Union" was made "more perfect" by the creation of a federal government with enough power to act directly upon citizens, rather than a government with narrowly limited power that could act on citizens (e.g., by imposing taxes) only indirectly through the states.[72] Although the Preamble speaks of perfecting the "Union," and the country is called the "United States of America," the Supreme Court has interpreted the institution created as a government over the people, not an agreement between the States,[73] the phrase has also been interpreted to confirm that state nullification of any federal law,[74] dissolution of the Union,[75] or secession from it,[76] are not contemplated by the Constitution.

See also

Notes

  1. ^ In the handwritten engrossed copy of the Constitution maintained in the National Archives, the spelling "defence," now considered British, is used in the preamble; in addition the "d" is lower case, unlike the other use of "defence" in the Constitution (Article I, Section 8) and unlike most of the other nouns in the Preamble. (See the National Archives transcription and the Archives' image of the engrossed document. Retrieved both web pages on April 17, 2016.)

References

  1. ^ McDonald, Forrest. "Essay on the Preamble". The Heritage Foundation. Retrieved July 13, 2014. 
  2. ^ Schütze, Robert. European Constitutional Law, p. 50 (Cambridge University Press 2012).
  3. ^ See Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905) ("Although th[e] preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments."); see also United States v. Boyer, 85 F. 425, 430–31 (W.D. Mo. 1898) ("The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se, it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution, its true office is to expound the nature and extent and application of the powers actually conferred by the constitution, and not substantively to create them." (quoting 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 462 (1833)) (internal quotation marks omitted)).
  4. ^ It is difficult to prove a negative, but courts have at times acknowledged this apparent truism. See, e.g., Boyer, 85 F. at 430 ("I venture the opinion that no adjudicated case can be cited which traces to the preamble the power to enact any statute.").
  5. ^ In Jacobs v. Pataki, 68 F. App'x 222, 224 (2d Cir. 2003), the plaintiff made the bizarre argument that "the 'United States of America' that was granted Article III power in the Constitution is distinct from the 'United States' that currently exercises that power"; the court dismissed this contention with 3 words ("it is not") and cited a comparison of the Preamble's reference to the "United States of America" with Article III's vesting of the "judicial Power of the United States."
  6. ^ Legal Tender Cases, 79 U.S. (12 Wall.) 457, 531–32 (1871) ("[I]t [cannot] be questioned that, when investigating the nature and extent of the powers, conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is a universal rule of construction applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it; in no other way can the intent of the framers of the instrument be discovered. And there are more urgent reasons for looking to the ultimate purpose in examining the powers conferred by a constitution than there are in construing a statute, a will, or a contract. We do not expect to find in a constitution minute details, it is necessarily brief and comprehensive. It prescribes outlines, leaving the filling up to be deduced from the outlines."), abrogated on other grounds by Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922), as recognized in Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).
  7. ^ Cf. Badger v. Hoidale, 88 F.2d 208, 211 (8th Cir. 1937) ("Rules applicable to the construction of a statute are equally applicable to the construction of a Constitution." (citing Taylor v. Taylor, 10 Minn. 107 (1865))).
  8. ^ Examples include the "plain meaning rule," Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 619 (1895) ("The words of the Constitution are to be taken in their obvious sense, and to have a reasonable construction."), superseded on other grounds by U.S. CONST. amend. XVI, as recognized in Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916); McPherson v. Blacker, 146 U.S. 1, 27 (1892) ("The framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text . . . ."), and noscitur a sociis, Virginia v. Tennessee, 148 U.S. 503, 519 (1893) ("It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. Noscitur a sociis is a rule of construction applicable to all written instruments. Where any particular word is obscure or of doubtful meaning, taken by itself, its obscurity or doubt may be removed by reference to associated words. And the meaning of a term may be enlarged or restrained by reference to the object of the whole clause in which it is used.").
  9. ^ See, e.g., Hooven & Allison Co. v. Evatt, 324 U.S. 652, 663 (1945) ("[I]n determining the meaning and application of [a] constitutional provision, we are concerned with matters of substance, not of form."), overruled on other grounds by Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984); South Carolina v. United States, 199 U.S. 437, 451 (1905) ("[I]t is undoubtedly true that that which is implied is as much a part of the Constitution as that which is expressed."), overruled on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); Ex parte Yarbrough, 110 U.S. 651, 658 (1884) ("[I]n construing the Constitution of the United States, [courts use] the doctrine universally applied to all instruments of writing, that what is implied is as much a part of the instrument as what is expressed. This principle, in its application to the Constitution of the United States, more than to almost any other writing, is a necessity, by reason of the inherent inability to put into words all derivative powers . . . ."); Packet Co. v. Keokuk, 95 U.S. 80, 87 (1877) ("A mere adherence to the letter [of the Constitution], without reference to the spirit and purpose, may [sometimes] mislead.").
  10. ^ Missouri v. Illinois, 180 U.S. 208, 219 (1901) ("[W]hen called upon to construe and apply a provision of the Constitution of the United States, [courts] must look not merely to its language but to its historical origin, and to those decisions of this court in which its meaning and the scope of its operation have received deliberate consideration.").
  11. ^ United States v. S.-E. Underwriters Ass'n, 322 U.S. 533, 539 (1944) ("Ordinarily courts do not construe words used in the Constitution so as to give them a meaning more narrow than one which they had in the common parlance of the times in which the Constitution was written."), superseded on other grounds by statute, McCarran-Ferguson Act, ch. 20, 59 Stat. 33 (1945) (codified as amended at 15 U.S.C. §§ 1011–1015 (2006)), as recognized in U.S. Dep't of the Treasury v. Fabe, 508 U.S. 491 (1993); Ex parte Bain, 121 U.S. 1, 12 (1887) ("[I]n the construction of the language of the Constitution . . . , we are to place ourselves as nearly as possible in the condition of the men who framed that instrument."), overruled on other grounds by United States v. Miller, 471 U.S. 130 (1985), and United States v. Cotton, 535 U.S. 625 (2002).
  12. ^ United States v. Sanges, 144 U.S. 310, 311 (1892) ("[T]he Constitution . . . is to be read in the light of the common law, from which our system of jurisprudence is derived." (citations omitted)); Smith v. Alabama, 124 U.S. 465, 478 (1888) ("The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.").
  13. ^ United States v. Wood, 299 U.S. 123, 142 (1936) ("Whether a clause in the Constitution is to be restricted by a rule of the common law as it existed when the Constitution was adopted depends upon the terms or nature of the particular clause." (citing Cont'l Ill. Nat'l Bank & Trust Co. v. Chi., Rock Island & Pac. Ry. Co., 294 U.S. 648 (1935))); Mattox v. United States, 156 U.S. 237, 243 (1895) ("We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject -- such as his ancestors had inherited and defended since the days of Magna Charta.").
  14. ^ Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533, 542 (1869) ("We are obliged . . . to resort to historical evidence, and to seek the meaning of the words [in the Constitution] in the use and in the opinion of those whose relations to the government, and means of knowledge, warranted them in speaking with authority.").
  15. ^ McPherson v. Blacker, 146 U.S. 1, 27 (1892) ("[W]here there is ambiguity or doubt [in the meaning of constitutional language], or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight."); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 279–80 (1856) ("[A] legislative construction of the constitution, commencing so early in the government, when the first occasion for [a] manner of proceeding arose, continued throughout its existence, and repeatedly acted on by the judiciary and the executive, is entitled to no inconsiderable weight upon the question whether the proceeding adopted by it was 'due process of law.'" (citations omitted)).
  16. ^ Fairbank v. United States, 181 U.S. 283, 311 (1901) ("[A] practical construction [of the Constitution] is relied upon only in cases of doubt. . . . Where there was obviously a matter of doubt, we have yielded assent to the construction placed by those having actual charge of the execution of the statute, but where there was no doubt we have steadfastly declined to recognize any force in practical construction. Thus, before any appeal can be made to practical construction, it must appear that the true meaning is doubtful."); see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
  17. ^ In re Debs, 158 U.S. 564, 591 (1895) ("Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation."), overruled on other grounds by Bloom v. Illinois, 391 U.S. 194 (1968); R.R. Co. v. Peniston, 85 U.S. (18 Wall.) 5, 31 (1873) ("[T]he Federal Constitution must receive a practical construction. Its limitations and its implied prohibitions must not be extended so far as to destroy the necessary powers of the States, or prevent their efficient exercise."); In re Jackson, 13 F. Cas. 194, 196 (C.C.S.D.N.Y. 1877) (No. 7124) ("[I]n construing a grant of power in the constitution, it is to be construed according to the fair and reasonable import of its terms, and its construction is not necessarily to be controlled by a reference to what existed when the constitution was adopted.").
  18. ^ E.g., Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 77, 78 (1946) ("[T]o infer qualifications does not comport with the standards for expounding the Constitution. . . . We cannot, therefore, read the prohibition against 'any' tax on exports as containing an implied qualification."); Fairbank, 181 U.S. at 287 ("The words expressing the various grants [of power] in the Constitution are words of general import, and they are to be construed as such, and as granting to the full extent the powers named."); Shreveport v. Cole, 129 U.S. 36, 43 (1889) ("Constitutions . . . are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest beyond reasonable question.")
  19. ^ Boyd v. United States, 116 U.S. 616, 635 (1886) ("[C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance, it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."), recognized as abrogated on other grounds in Fisher v. United States, 425 U.S. 391 (1976).
  20. ^ 257 F. Supp. 564 (W.D. Mich. 1966).[1]
  21. ^ Id. at 572.
  22. ^ Id. at 574 (emphasis added).
  23. ^ 8 F. Supp. 535 (W.D. Okla. 1934).
  24. ^ Id. at 535.
  25. ^ U.S. CONST. art. I, § 8, cl. 3. ("The Congress shall have power . . . [t]o regulate commerce . . . among the several states . . . .").
  26. ^ Kinnebrew Motor Co., 8 F. Supp. at 539 ("Reference has been made in the government's brief to the ‘Welfare Clause‘ of the Constitution as if certain powers could be derived by Congress from said clause. It is not necessary to indulge in an extended argument on this question for the reason that there is no such thing as the ‘Welfare Clause‘ of the Constitution.").
  27. ^ Id. at 544 ("The only question which this court pretends to determine in this case is whether or not the sale of automobiles, in a strictly retail business in the vicinity of Oklahoma City, constitutes interstate commerce, and this court, without hesitation, finds that there is no interstate commerce connected with the transactions described in this indictment, and if there is no interstate commerce, Congress has no authority to regulate these transactions.")
  28. ^ See Shapleigh v. Mier, 299 U.S. 468, 470, 471 (1937) (when certain land passed from Mexico to the United States because of a shift in the Rio Grande's course, "[s]overeignty was thus transferred, but private ownership remained the same"; thus, a decree of a Mexican government official determining title to the land, "if lawful and effective under the Constitution and laws of Mexico, must be recognized as lawful and effective under the laws of the United States, the sovereignty of Mexico at the time of that decree being exclusive of any other")
  29. ^ Chae Chan Ping v. United States, 130 U.S. 581, 604, 606 (1889) ("[T]he United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. The powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the states, and admit subjects of other nations to citizenship are all sovereign powers, restricted in their exercise only by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations. . . . For local interests, the several states of the union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.").
  30. ^ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) ("[T]he 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 peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. . . . As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.").
  31. ^ United States v. Bradley, 35 U.S. (10 Pet.) 343, 359 (1836) ("[T]he United States being a body politic, as an incident to its general right of sovereignty, has a capacity to enter into contracts and take bonds in cases within the sphere of its constitutional powers and appropriate to the just exercise of those powers, . . . whenever such contracts or bonds are not prohibited by law, although the making of such contracts or taking such bonds may not have been prescribed by any preexisting legislative act."); United States v. Tingey, 30 U.S. (5 Pet.) 115, 128 (1831) ("[T]he United States has . . . [the] capacity to enter into contracts [or to take a bond in cases not previously provided for by some law]. It is in our opinion an incident to the general right of sovereignty, and the United States being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department to which those powers are confided, enter into contracts not prohibited by law and appropriate to the just exercise of those powers. . . . To adopt a different principle would be to deny the ordinary rights of sovereignty not merely to the general government, but even to the state governments within the proper sphere of their own powers, unless brought into operation by express legislation.")
  32. ^ U.S. CONST. art. I, § 8, cl. 7
  33. ^ In re Debs, 158 U.S. 564, 578, 582 (1895) ("While, under the dual system which prevails with us, the powers of government are distributed between the State and the Nation, and while the latter is properly styled a government of enumerated powers, yet within the limits of such enumeration, it has all the attributes of sovereignty, and, in the exercise of those enumerated powers, acts directly upon the citizen, and not through the intermediate agency of the State. . . . 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.")
  34. ^ In re Quarles, 158 U.S. 532, 535 (1895) ("The United States are a nation, whose powers of government, legislative, executive and judicial, within the sphere of action confided to it by the Constitution, are supreme and paramount. Every right, created by, arising under or dependent upon the Constitution, may be protected and enforced by such means, and in such manner, as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may in its discretion deem most eligible and best adapted to attain the object." (citing Logan v. United States, 144 U.S. 263, 293 (1892))); Dobbins v. Comm'rs of Erie Cnty., 41 U.S. (16 Pet.) 435, 447 (1842) ("The government of the United States is supreme within its sphere of action."), overruled on other grounds by Graves v. New York ex rel. O'Keefe, 306 U.S. 466 (1939), and superseded on other grounds by statute, Public Salary Tax Act of 1939, ch. 59, 53 Stat. 574 (codified as amended at 4 U.S.C. § 111 (2006)).
  35. ^ United States v. Butler, 297 U.S. 1, 68 (1936) ("From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted, the same proposition, otherwise stated, is that powers not granted are prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden." (footnote omitted)); Pac. Ins. Co. v. Soule, 74 U.S. (7 Wall.) 433, 444 (1869) ("The national government, though supreme within its own sphere, is one of limited jurisdiction and specific functions. It has no faculties but such as the Constitution has given it, either expressly or incidentally by necessary intendment. Whenever any act done under its authority is challenged, the proper sanction must be found in its charter, or the act is ultra vires and void."); Briscoe v. President of the Bank of Ky., 36 U.S. (11 Pet.) 257, 317 (1837) ("The federal government is one of delegated powers. All powers not delegated to it, or inhibited to the states, are reserved to the states, or to the people.")
  36. ^ See U.S. CONST. art. IV, § 3, cl. 2; United States v. Bd. of Com'rs, 145 F.2d 329, 330 (10th Cir. 1944) ("Congress is vested with the absolute right to designate the persons to whom real property belonging to the United States shall be transferred, and to prescribe the conditions and mode of the transfer; and a state has no power to interfere with that right or to embarrass the exercise of it. Property owned by the United States is immune from taxation by the state or any of its subdivisions.")
  37. ^ Dodge v. Woolsey, 59 U.S. (18 How.) 331, 347 (1885) ("The departments of the government are legislative, executive, and judicial. They are co ordinate in degree to the extent of the powers delegated to each of them. Each, in the exercise of its powers, is independent of the other, but all, rightfully done by either, is binding upon the others, the constitution is supreme over all of them, because the people who ratified it have made it so; consequently, anything which may be done unauthorized by it is unlawful.")
  38. ^ See Loan Ass'n v. Topeka, 87 U.S. (20 Wall.) 655, 663 (1875) ("The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers."); Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 611 (1870) ("[T]he Constitution is the fundamental law of the United States. By it the people have created a government, defined its powers, prescribed their limits, distributed them among the different departments, and directed in general the manner of their exercise. No department of the government has any other powers than those thus delegated to it by the people. All the legislative power granted by the Constitution belongs to Congress, but it has no legislative power which is not thus granted. And the same observation is equally true in its application to the executive and judicial powers granted respectively to the President and the courts. All these powers differ in kind, but not in source or in limitation, they all arise from the Constitution, and are limited by its terms.")
  39. ^ Humphrey's Ex'r v. United States, 295 U.S. 602, 629–30 (1935) ("The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others has often been stressed, and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution, and in the rule which recognizes their essential coequality."); e.g., Ainsworth v. Barn Ballroom Co., 157 F.2d 97, 100 (4th Cir. 1946) (judiciary has no power to review a military order barring servicemen from patronizing a certain dance hall due to separation of powers concerns because "the courts may not invade the executive departments to correct alleged mistakes arising out of abuse of discretion[;] . . . to do so would interfere with the performance of governmental functions and vitally affect the interests of the United States")
  40. ^ Tarble's Case, 80 U.S. (13 Wall.) 397, 406 (1872) ("There are within the territorial limits of each state two governments, restricted in their spheres of action but independent of each other and supreme within their respective spheres. Each has its separate departments, each has its distinct laws, and each has its own tribunals for their enforcement. Neither government can intrude within the jurisdiction, or authorize any interference therein by its judicial officers with the action of the other.")
  41. ^ Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 590 (1839) ("It has . . . been supposed that the rules of comity between foreign nations do not apply to the states of this Union, that they extend to one another no other rights than those which are given by the Constitution of the United States, and that the courts of the general government are not at liberty to presume . . . that a state has adopted the comity of nations towards the other states as a part of its jurisprudence or that it acknowledges any rights but those which are secured by the Constitution of the United States. The Court thinks otherwise, the intimate union of these states as members of the same great political family, the deep and vital interests which bind them so closely together, should lead us, in the absence of proof to the contrary, to presume a greater degree of comity and friendship and kindness towards one another than we should be authorized to presume between foreign nations. . . . They are sovereign states, and the history of the past and the events which are daily occurring furnish the strongest evidence that they have adopted towards each other the laws of comity in their fullest extent."); Bank of U.S. v. Daniel, 37 U.S. (12 Pet.) 32, 54 (1838) ("The respective states are sovereign within their own limits, and foreign to each other, regarding them as local governments."); Buckner v. Finley, 27 U.S. (2 Pet.) 586, 590 (1829) (" For all national purposes embraced by the federal Constitution, the states and the citizens thereof are one, united under the same sovereign authority and governed by the same laws. In all other respects, the states are necessarily foreign to and independent of each other, their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions.")
  42. ^ Angel v. Bullington, 330 U.S. 183, 188 (1947) ("The power of a state to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them is, of course, subject to the restrictions imposed by the Federal Constitution." (quoting McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 233 (1934)) (internal quotation marks omitted)); Ableman v. Booth, 62 U.S. (21 How.) 506, 516 (1856) ("[A]lthough the State[s] . . . [are] sovereign within [their] territorial limits to a certain extent, yet that sovereignty is limited and restricted by the Constitution of the United States.")
  43. ^ United Pub. Workers v. Mitchell, 330 U.S. 75, 95–96 (1947) ("The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."); Tarble's Case, 80 U.S. at 406 ("The two governments in each state stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments.").
  44. ^ Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 570 (1832) ("The powers given [to the federal government] are limited; and no powers, which are not expressly given, can be exercised by [it]: but, where given, they are supreme. Within the sphere allotted to them, the co- ordinate branches of the general government revolve, unobstructed by any legitimate exercise of power by the state governments, the powers exclusively given to the federal government are limitations upon the state authorities. But, with the exception of these limitations, the states are supreme; and their sovereignty can be no more invaded by the action of the general government, than the action of the state governments in arrest or obstruct the course of the national power."), recognized as abrogated on other grounds in New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).
  45. ^ Screws v. United States, 325 U.S. 91, 109 (1945) ("Our national government is one of delegated powers alone. Under our federal system, the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States.").
  46. ^ E.g., Kohl v. United States, 91 U.S. 367, 372 (1876) ("Th[e federal] government is as sovereign within its sphere as the states are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the states over the subjects to which their sovereignty extends."). Taken very literally, statements like this could be understood to suggest that there is no overlap between the State and Federal governments.
  47. ^ Ex parte McNiel, 80 U.S. (13 Wall.) 236, 240 (1872) ("In the complex system of polity which prevails in this country, the powers of government may be divided into four classes. [1] Those which belong exclusively to the states. [2] Those which belong exclusively to the national government. [3] Those which may be exercised concurrently and independently by both. [4] Those which may be exercised by the states, but only until Congress shall see fit to act upon the subject. The authority of the state then retires and lies in abeyance until the occasion for its exercise shall recur."); People ex rel. Woll v. Graber, 68 N.E.2d 750, 754 (Ill. 1946) ("The laws of the United States are laws in the several States, and just as binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States but is a concurrent, and, within its jurisdiction, a paramount authority."); Kersting v. Hargrove, 48 A.2d 309, 310 (N.J. Cir. Ct. 1946) ("The United States government is not a foreign sovereignty as respects the several states but is a concurrent, and within its jurisdiction, a superior sovereignty. Every citizen of New Jersey is subject to two distinct sovereignties; that of New Jersey and that of the United States. The two together form one system and the two jurisdictions are not foreign to each other.").
  48. ^ See, e.g., Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 410–11 (1857) ("The brief preamble sets forth by whom [the Constitution] was formed, for what purposes, and for whose benefit and protection. It declares that [the Constitution] [was] formed by the people of the United States; that is to say, by those who were members of the different political communities in the several States; and its great object is declared to be to secure the blessings of liberty to themselves and their posterity. It speaks in general terms of the people of the United States, and of citizens of the several States, when it is providing for the exercise of the powers granted or the privileges secured to the citizen, it does not define what description of persons are intended to be included under these terms, or who shall be regarded as a citizen and one of the people. It uses them as terms so well understood, that no further description or definition was necessary, but there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed." (emphasis added)), superseded by constitutional amendment, U.S. CONST. amend. XIV, § 1, as recognized in Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). But see Dredd Scott 60 U.S. 581–82 (Curtis, J., dissenting) (arguing that "the Constitution has recognized the general principle of public law, that allegiance and citizenship depend on the place of birth" and that the "necessary conclusion is, that those persons born within the several States, who, by force of their respective Constitutions and laws, are citizens of the State, are thereby citizens of the United States").
  49. ^ Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905) (using this particular phrasing).
  50. ^ Cf. Carter v. Carter Coal Co., 298 U.S. 238, 296 (1936) ("[T]he Constitution itself is in every real sense a law—the lawmakers being the people themselves, in whom under our system all political power and sovereignty primarily resides, and through whom such power and sovereignty primarily speaks. It is by that law, and not otherwise, that the legislative, executive, and judicial agencies which it created exercise such political authority as they have been permitted to possess, the Constitution speaks for itself in terms so plain that to misunderstand their import is not rationally possible. 'We the People of the United States,' it says, 'do ordain and establish this Constitution.' Ordain and establish! These are definite words of enactment, and without more would stamp what follows with the dignity and character of law."); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) ("Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts." (emphasis added)); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) ("That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. . . . The principles . . . so established are deemed fundamental. . . . This original and supreme will organizes the government, and assigns to different departments their respective powers." (emphases added)).
  51. ^ Cf. League v. De Young, 52 U.S. (11 How.) 184, 203 (1851) ("The Constitution of the United States was made by, and for the protection of, the people of the United States."); Barron v. Mayor of Balt., 32 U.S. (7 Pet.) 243, 247 (1833) ("The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. . . . The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests."), superseded on other grounds by constitutional amendment, U.S. CONST. amend. XIV, as recognized in Chi., Burlington & Quincy R.R. v. Chicago, 166 U.S. 226 (1897). While the Supreme Court did not specifically mention the Preamble in these cases, it seems apparent that it was expounding on the implications of what it understood reference to "the People" in the Preamble to mean.
  52. ^ Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793) (opinion of Jay, C.J.) ("[I]n establishing [the Constitution], the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, ‘We the people of the United States, do ordain and establish this Constitution.‘ Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner." (emphasis added)). abrogated by constitutional amendment, U.S. CONST. amend. XI, as recognized in Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), and abrogated by Hans v. Louisiana, 134 U.S. 1, 12 (1890); see also United States v. Cathcart, 25 F. Cas. 344, 348 (C.C.S.D. Ohio 1864) (No. 14,756) ("[The Supreme Court has] den[ied] the assumption that full and unqualified sovereignty still remains in the states or the people of a state, and affirm[ed], on the contrary, that, by express words of the constitution, solemnly ratified by the people of the United States, the national government is supreme within the range of the powers delegated to it; while the states are sovereign only in the sense that they have an indisputable claim to the exercise of all the rights and powers guarantied to them by the constitution of the United States, or which are expressly or by fair implication reserved to them.").
  53. ^ See White v. Hart, 80 U.S. (13 Wall.) 646, 650 (1872) ("The National Constitution was, as its preamble recites, ordained and established by the people of the United States. It created not a confederacy of States, but a government of individuals."); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324–25 (1816) ("The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but . . . , as the preamble of the constitution declares, by 'the people of the United States.' . . . The constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions . . . ."); cf. M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 402–03 (1819) (rejecting a construction of the Constitution that would interpret it "not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government . . . are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion;" instead, "the [Constitution] was submitted to the people. They acted upon it . . . by assembling in convention. . . . [It] d[id] not, on . . . account [of the ratifying conventions assembling in each state], cease to be the [action] of the people themselves, or become [an action] of the state governments.").
  54. ^ Ala. State Fed'n of Labor v. McAdory, 325 U.S. 450, 463 (1945) ("Only those to whom a statute applies and who are adversely affected by it can draw in question its constitutional validity in a declaratory judgment proceeding as in any other."); Premier-Pabst Sales Co. v. Grosscup, 298 U.S. 226, 227 (1936) ("One who would strike down a state statute as obnoxious to the Federal Constitution must show that the alleged unconstitutional feature injures him."); Buscaglia v. Fiddler, 157 F.2d 579, 581 (1st Cir. 1946) ("It is a settled principle of law that no court will consider the constitutionality of a statute unless the record before it affords an adequate factual basis for determining whether the challenged statute applies to and adversely affects the one who draws it in question."); Liberty Nat'l Bank v. Collins, 58 N.E.2d 610, 614 (Ill. 1944) ("The rule is universal that no one can raise a question as to the constitutionality of a statute unless he is injuriously affected by the alleged unconstitutional provisions. It is an established rule in this State that one may not complain of the invalidity of a statutory provision which does not affect him, this court will not determine the constitutionality of the provisions of an act which do not affect the parties to the cause under consideration, or where the party urging the invalidity of such provisions is not in any way aggrieved by their operation." (citation omitted)).
  55. ^ See, e.g., Ison v. W. Vegetable Distribs., 59 P.2d 649, 655 (Ariz. 1936) ("It is the general rule of law that when a party invokes the benefit of a statute, he may not, in one and the same breath, claim a right granted by it and reject the terms upon which the right is granted."); State ex rel. Sorensen v. S. Neb. Power Co., 268 N.W. 284, 285 (Neb. 1936) ("[In this case,] defendants . . . invoked the statute, . . . relied upon and t[ook] advantage of it, and are now estopped to assail the statute as unconstitutional."). It is important not to read these too broadly, for example, in In re Auditor Gen., 266 N.W. 464 (Mich. 1936), certain property had been foreclosed upon for delinquent payment of taxes. A statute changed the terms by which foreclosure sales had to be published and announced in the community, the Michigan Supreme Court held that it was not necessary to question the validity of the taxes whose nonpayment led to the foreclosure, to have standing to question the validity of the procedure by which the foreclosure sale was being conducted.
  56. ^ E.g., Am. Power & Light Co. v. SEC, 329 U.S. 90, 107 (1946) (a claim that the Public Utility Holding Company Act of 1935 "is void in the absence of an express provision for notice and opportunity for hearing as to security holders regarding proceedings under that section [is groundless]. The short answer is that such a contention can be raised properly only by a security holder who has suffered injury due to lack of notice or opportunity for hearing. No security holder of that type is now before us, the management[] of American . . . admittedly w[as] notified and participated in the hearings . . . and . . . possess[es] no standing to assert the invalidity of that section from the viewpoint of the security holders' constitutional rights to notice and hearing"); Virginian Ry. Co. v. Sys. Fed'n No. 40, Ry. Employees Dep't, 300 U.S. 515, 558 (1937) (under the Railway Labor Act, a "railroad can complain only of the infringement of its own constitutional immunity, not that of its employees" (citations omitted)).
  57. ^ E.g., Anniston Mfg. Co. v. Davis, 301 U.S. 337, 353 (1937) ("Constitutional questions are not to be decided hypothetically. When particular facts control the decision they must be shown. Petitioner's contention as to impossibility of proof is premature. . . . For the present purpose it is sufficient to hold, and we do hold, that the petitioner may constitutionally be required to present all the pertinent facts in the prescribed administrative proceeding and may there raise, and ultimately may present for judicial review, any legal question which may arise as the facts are developed." (citation omitted)).
  58. ^ United Pub. Workers v. Mitchell, 330 U.S. 75, 89–90 (1947) ("The power of courts, and ultimately of this Court, to pass upon the constitutionality of acts of Congress arises only when the interests of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough.").
  59. ^ Sparks v. Hart Coal Corp., 74 F.2d 697, 699 (6th Cir. 1934) ("It has long been settled that courts have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such act."); e.g., Manne v. Comm'r, 155 F.2d 304, 307 (8th Cir. 1946) ("A taxpayer alleging unconstitutionality of an act must show not only that the act is invalid, but that he has sustained some direct injury as the result of its enforcement." (citing Massachusetts v. Mellon, 262 U.S. 447 (1923)).
  60. ^ Kuehner v. Irving Trust Co., 299 U.S. 445, 452, 453 (1937) (“While, therefore, the Fifth Amendment forbids the destruction of a contract it does not prohibit bankruptcy legislation affecting the creditor's remedy for its enforcement against the debtor's assets, or the measure of the creditor's participation therein, if the statutory provisions are consonant with a fair, reasonable, and equitable distribution of those assets. The law under consideration recognizes the petitioners' claim and permits it to share in the consideration to be distributed in reorganization. . . . It is incorrect to say that Congress took away all remedy under the lease, on the contrary, it gave a new and more certain remedy for a limited amount, in lieu of an old remedy inefficient and uncertain in its result. This is certainly not the taking of the landlord's property without due process.”); In re 620 Church St. Bldg. Corp., 299 U.S. 24, 27 (1936) (“Here the controlling finding is not only that there was no equity in the property above the first mortgage but that petitioners' claims were appraised by the court as having ‘no value.’ There was no value to be protected. This finding . . . [renders] the constitutional argument [that petitioners were deprived of property without due process of law] unavailing as petitioners have not shown injury.”).
  61. ^ Mauk v. United States, 88 F.2d 557, 559 (9th Cir. 1937) ("Since appellant is not indicted under or accused of violating this provision, he has no interest or standing to question its validity. That question is not before us and will not be considered.").
  62. ^ Morgan v. Virginia, 328 U.S. 373, 376–77 (1946) (person arrested for violating laws segregating buses was "a proper person to challenge the validity of th[e] statute as a burden on commerce"; even though she was a mere passenger and not, for example, a bus operator concerned about burdens on interstate commerce, "[i]f it is an invalid burden, the conviction under it would fail. The statute affects appellant as well as the transportation company. Constitutional protection against burdens on commerce is for her benefit on a criminal trial for violation of the challenged statute").
  63. ^ Downes v. Bidwell, 182 U.S. 244, 251 (1901) ("The Constitution was created by the people of the United States, as a union of states, to be governed solely by representatives of the states."); In re Ross, 140 U.S. 453, 464 (1891) ("By the constitution a government is ordained and established ‘for the United States of America,’ and not for countries outside of their limits. The guaranties it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or temporary sojourners abroad.").
  64. ^ 46 F. Supp. 296 (W.D. Wash. 1942), aff'd, 138 F.2d 909 (9th Cir. 1943).
  65. ^ Id. at 296 ("Upon his arraignment the [trial] court appointed counsel for the petitioner who was without funds and was a member of the armed forces of the United States at Shanghai. The petitioner entered a plea of not guilty and demanded a trial before a jury of Americans, which motion was denied, and he was thereupon tried by the court, the petitioner contends that his constitutional rights were violated by his being denied a jury trial.").
  66. ^ Id. at 299 ("The petitioner does not claim that he was not afforded a fair trial aside from the denial of his demand for a jury. Inasmuch as unquestionably he obtained a trial more to his liking than he would have obtained in Shanghai in other than an American court sitting in Shanghai, and since the Supreme Court of this country has determined that the right of trial by jury does not obtain in an American court sitting in another country pursuant to treaty, it must be held that the allegations of petitioner's petition do not entitle him to release.").
  67. ^ Downes, 182 U.S. at 251 (emphases added). Compare, e.g., Dooley v. United States, 182 U.S. 222, 234 (1901) ("[A]fter the ratification of the treaty [with Spain] and the cession of the island to the United States[,] Porto Rico then ceased to be a foreign country . . . ."), and Municipality of Ponce v. Roman Catholic Apostolic Church, 210 U.S. 296, 310 (1908) ("[I]n case of cession to the United States; laws of the ceded country inconsistent with the Constitution and laws of the United States, so far as applicable, would cease to be of obligatory force; but otherwise the municipal laws of the acquired country continue." (quoting Ortega v. Lara, 202 U.S. 339, 342 (1906))), with Downes, 182 U.S. at 287 ("[T]he island of Porto Rico is a territory appurtenant and belonging to the United States, but not a part of the United States . . . .").
  68. ^ The fact that this discussion happens to talk mainly about Puerto Rico should not be understood to imply that the Supreme Court held that Puerto Rico was some sort of sui generis jurisdiction. For example, in Goetze v. United States, 182 U.S. 221 (1901), the Supreme Court held that this same reasoning (that a place could be under the jurisdiction of the United States, without being "part" of the United States) applied to Hawaii before it was admitted into the Union as a State.
  69. ^ U.S. CONST. art. I, § 8, cl. 1.
  70. ^ De Pass v. Bidwell, 124 F. 615 (C.C.S.D.N.Y. 1903).
  71. ^ See United States v. Cruikshank, 92 U.S. 542, 549–50 (1876) ("The separate governments of the separate States, bound together by the articles of confederation alone, were not sufficient for the promotion of the general welfare of the people in respect to foreign nations, or for their complete protection as citizens of the confederated States. For this reason, the people of the United States . . . ordained and established the government of the United States, and defined its powers by a constitution, which they adopted as its fundamental law . . . ." (emphasis added)); Texas v. White, 74 U.S. (7 Wall.) 700, 724–25 (1869) ("[The Union, which had existed since colonial times,] received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.'"), overruled on other grounds by Morgan v. United States, 113 U.S. 476 (1885); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 332 (1816) ("The constitution was for a new government, organized with new substantive powers, and not a mere supplementary charter to a government already existing.").
  72. ^ See Lane Cnty. v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869) ("The people, through [the Constitution], established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States.").
  73. ^ Legal Tender Cases, 79 U.S. (12 Wall.) 457, 545 (1871) ("The Constitution was intended to frame a government as distinguished from a league or compact, a government supreme in some particulars over States and people."); id. at 554–55 (Bradley, J., concurring) ("The Constitution of the United States established a government, and not a league, compact, or partnership. It was constituted by the people, it is called a government.").
  74. ^ See Bush v. Orleans Parish Sch. Bd., 188 F. Supp. 916, 922–23 (E.D. La. 1960) ("Interposition is . . . based on the proposition that the United States is a compact of states, any one of which may interpose its sovereignty against the enforcement within its borders of any decision of the Supreme Court or act of Congress, irrespective of the fact that the constitutionality of the act has been established by decision of the Supreme Court. . . . In essence, the doctrine denies the constitutional obligation of the states to respect those decisions of the Supreme Court with which they do not agree, the doctrine may have had some validity under the Articles of Confederation. On their failure, however, ‘in Order to form a more perfect Union,’ the people, not the states, of this country ordained and established the Constitution. Thus the keystone of the interposition thesis, that the United States is a compact of states, was disavowed in the Preamble to the Constitution." (emphasis added) (footnote omitted) (citation omitted)), aff'd mem., 365 U.S. 569 (1961). Although the State of Louisiana in Bush invoked a concept it called "interposition," it was sufficiently similar to the concept of "nullification" that the court used the latter, more familiar term in a fashion that clearly indicated it viewed the concepts as functionally interchangeable. See id. at 923 n.7 ("[E]ven the ‘compact theory’ [of the Constitution] does not justify interposition. Thus, Edward Livingston, . . . though an adherent of th[e 'compact] theory['], strongly denied the right of a state to nullify federal law or the decisions of the federal courts." (emphases added)). Compare Martin, 14 U.S. (1 Wheat.) at 332 ("The confederation was a compact between states; and its structure and powers were wholly unlike those of the national government."), with id. ("The constitution was an act of the people of the United States to supersede the confederation, and not to be ingrafted on it, as a stock through which it was to receive life and nourishment.").
  75. ^ White v. Hart, 80 U.S. (13 Wall.) 646, 650 (1871) ("[The Constitution] assumed that the government and the Union which it created, and the States which were incorporated into the Union, would be indestructible and perpetual; and as far as human means could accomplish such a work, it intended to make them so.")
  76. ^ Texas, 74 U.S. (7 Wall.) at 725–26 ("[W]hen the[] Articles [of Confederation] were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? . . . The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State, the act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final, 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 consent of the States."); United States v. Cathcart, 25 F. Cas. 344, 348 (C.C.S.D. Ohio 1864) (No. 14,756) ("The[ Supreme Court has] repudiate[d] emphatically the mischievous heresy that the union of the states under the constitution is a mere league or compact, from which a state, or any number of states, may withdraw at pleasure, not only without the consent of the other states, but against their will.").

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