EDITOR’S NOTE: St. George Tucker was one of the most influential legal scholars of the early American republic. His View of the Constitution of the United States was the first extended, systematic commentary on the Constitution after it had been ratified by the people of the several states and amended by the Bill of Rights. And his Blackstone’s Commentaries, from which the following excerpt originates, was the major treatise on American law in the early 19th century. Lawyers arguing before the Supreme Court of the United States would frequently cite to Tucker’s Blackstone – more often than any other commentator until 1827.
The twelfth article of the amendments to the constitution of the United States, declares, that the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
The powers absolutely prohibited to the states by the constitution, are, shortly, contained in article 1. section 10. viz.
1. No state shall enter into any treaty, alliance or confederation.
2. Nor grant letters of marque and reprisal.
3. Nor coin money.
4. Nor emit bills of credit.
5. Nor make any thing but gold and silver coin a tender in payment of debts.
6. Nor pass any bill of attainder.
7. Nor any expost facto law.
8. Nor any law impairing the obligation of contracts.
9. Nor grant any title of nobility. . . . Concerning all which, we shall make some few observations hereafter.
All other powers of government whatsoever, except these, and such as fall properly under the first or third heads above-mentioned, consistent with the fundamental laws, nature, and principle of a democratic state, are therefore reserved to the state governments.
From this view of the powers delegated to the federal government, it will clearly appear, that those exclusively granted to it have no relation to the domestic economy of the state. The right of property, with all it’s train of incidents, except in the case of authors, and inventors, seems to have been left exclusively to the state regulations; and the rights of persons appear to be no further subject to the control of the federal government, than may be necessary to support the dignity and faith of the nation in it’s federal or foreign engagements, and obligations; or it’s existence and unity as the depositary and administrator of the political councils and measures of the united republics. . . . Crimes and misdemeanors, if they affect not the existence of the federal government; or those objects to which it’s jurisdiction expressly extends, however heinous in a moral light, are not cognizable by the federal courts; unless committed within certain fixed and determinate territorial limits, to which the exclusive legislative power granted to congress, expressly extends. Their punishment, in all other cases, exclusively, belongs to the state jurisprudence.
The federal government then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to it’s operation is voluntary: it’s councils, it’s engagements, it’s authority are theirs, modified, and united. It’s sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of it’s functions, as such, in the most unlimited extent.