ment, and is therefore ipso jure void.[1] Those who disobey Federal authority on the ground of the commands of a State authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the State but against them as individual though combined wrongdoers. A State cannot secede and cannot rebel. Similarly, it cannot be coerced.
This view of the matter, which seems on the whole to be that taken by the Supreme court in the cases that arose after the Civil War, disposes, as has been well observed by Judge Hare,[2] of the difficulty which President Buchanan felt (see his message of 3d December 1860) as to the coercion of a State by the Union. He argued that because the Constitution did not provide for such coercion, a proposal in the Convention of 1787 to authorize it having been ultimately dropped, it was legally impossible. The best answer to this contention is that such a provision would have been superfluous, because a State cannot legally act against the Constitution. All that is needed is the power, unquestionably contained in the Constitution (Art. iii. § 3), to subdue and punish individuals guilty of treason against the Union.[3]
Except in the cases which have been already specified, the National government has no right whatever of interfering either with a State as a commonwealth or with the individual citizens thereof, and may be lawfully resisted should it attempt to do so.
"What then?" the European reader may ask. "Is the National government without the power and the duty of correcting the social and political evils which it may find to exist in a particular State, and which a vast majority of the nation may condemn? Suppose widespread brigandage to exist in one of
- ↑ It may, however, happen that a State law is unconstitutional in part only, perhaps in some trifling details, and in such cases that part only will be invalid, and the rest of the law will be upheld. For instance, a criminal statute might be framed so as to apply retrospectively as well as prospectively. So far as retrospective it would be bad, but good for all future cases. (See Const., Art. i § 10, par. 1.)
- ↑ American Constitutional Law, p. 61.
- ↑ Swiss practice allows the Federal government to coerce a disobedient canton. This is commonly done by quartering Federal troops in it at its expense till its government yields—a form of coercion which Swiss frugality dislikes—or by withholding its share of Federal grants.
