CASE NOTES

In general.- "It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the State governments by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the tenth article of the amendments, namely: 'The powers not delegated to the United States are reserved to the States respectively, or, to the people.' The government of the United States, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. (The Collector v. Day, 11 Wall. 113, 124, Dec. Term, 1870.)

"By the second section of Article VI., the laws of Congress are made the supreme law of the land only when they are made in pursuance of the legislative power specified in the Constitution; and by the Xth amendment the powers not delegated to the United States nor prohibited by it to the States, are reserved to the States respectively or to the people. The reservation to the States respectively can only mean the reservation of the rights of sovereignty which they respectively possessed before the adoption of the Constitution of the United States, and which they had not parted from by that instrument. And any legislation by Congress beyond the limits of the power delegated, would be trespassing upon the rights of the States or the people, and would not be the supreme law of the land, but null and void; and it would be the duty of the courts to declare it so. (Gordon v. United States, 117 U.S. 697, 705, Dec. Term, 1864.

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"But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This amendment, which

was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: '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 argument of counsel ignores the principal factor in this article, to wit, 'the people. ' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted." (Kansas v. Colorado, 206 U.S. 46, 89-90, May 13, 1907.)

"The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extra-constitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment, '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." (A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528-529, May 27, 1935.

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"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. " (United States v. Butler, 297 U.S. 1, 68, Jan. 6, 1936.)

"The Tenth amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the

EDITORIAL NOTE

The Thirteenth Amendment was proposed by Congress on Jan. 31, 1865, when it passed the House (Cong. Globe (38th Cong., 2d sess.) 531), having previously passed the Senate on Apr. 8, 1864 (Id. (38th Cong., 1st sess.) 1490). It appears officially in 13 Stat. 567 under date of Feb. 1, 1865. Ratification was completed on Dec. 6, 1865, when the legislature of the twenty-seventh State (Georgia) approved the amendment, there being then thirty-six States in the Union. On Dec. 18, 1865, the Secretary of State certified that this amendment had become a part of the Constitution (13 Stat. 774).

CASE NOTES

Scope and operation of Thirteenth Amendment."It is clear that this amendment, besides abolishing forever slavery and involuntary servitude within the United States, gives power to Congress to protect all persons within the jurisdiction of the United States from being in any way subjected to slavery or involuntary servitude, except as punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure," (United States v. Harris, 106 U.S. 629, 640, Oct. Term, 1882.)

"The prohibition of slavery, in the Thirteenth Amendment, is well known to have been adopted with reference to a state of affairs which had existed in certain States of the Union since the foundation of the government, while the addition of the words 'involuntary servitude' were said in the Slaughterhouse cases, 16 Wall. 36, to have been intended to cover the system of Mexican peonage and the Chinese coolie trade, the practical operation of which might have been a revival of the institution of slavery under a different and less offensive name. It is clear, however, that the amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional; such as military and naval enlistments, or to disturb the right of parents and guardians to the custody of their minor children or wards. The amendment, however, makes no distinction between a public and a private service. To say that persons engaged in a public service are not within the amendment is to admit that there are exceptions to its general language, and the further question is at once presented, where shall the line be drawn? We know of no better answer to make than to say that services which have from time immemorial been treated as exceptional shall not be regarded as within its purview." (Robertson v. Baldwin, 165 U.S. 275, 282, Jan. 25, 1897.)

"This amendment denounces a status or condition, irrespective of the manner or authority by

which it is created. The prohibitions of the Fourteenth and Fifteenth Amendments are largely upon the acts of the States, but the Thirteenth Amendment names no party or authority, but simply forbids slavery and involuntary servitude, grants to Congress power to enforce this prohibition by appropriate legislation." (Clyatt v. United States, 197 U.S. 207, 216, Mar. 13, 1905.)

"The meaning of this amendment is as clear as language can make it. The things denounced are slavery and involuntary servitude, and Congress is given power to enforce that denunciation. All understand by these terms a condition of enforced compulsory service of one to another. While the inciting cause of the Amendment was the emancipation of the colored race, yet it is not an attempt to commit that race to the care of the Nation. It is the denunciation of a condition and not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the Nation it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much within its compass as slavery or involuntary servitude of the African." (Hodges v. United States, 203 U.S. 1, 16-17, May 28, 1906.)

"Utilizing the language of the Ordinance of 1787, the Thirteenth Amendment declares that neither slavery nor involuntary servitude shall exist. This amendment was adopted with reference to conditions existing since the foundation of our Government, and the term involuntary servitude was intended to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers." (Butler v. Ferry, 240 U.S. 328, 332-333, Feb. 21, 1916. See also Crews v. Lundguist, 197 N.E. 768, 772, June 14, 1935.)

The exaction by government from the citizen "of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people," is not the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment. (Selective Draft Law Cases, 245 U.S. 366, 390, Jan. 7, 1918.)

express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State." (The Slaughter-house Cases, 16 Wall. 36, 95, Dec. Term, 1872. See also: Selective Draft Law Cases, 245 U.S. 366, 389-390, Jan. 7, 1918; Colgate v. Harvey, 296 U.S. 404, 427-428, Dec. 16, 1935.)

But,

"There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment 'all persons born or naturalized in the United States and subject to the jurisdiction thereof' are expressly declared to be 'citizens of the United States and of the State wherein they reside. in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision." (Minor v. Happersett, 21 Wall. 162, 165, Oct. Term, 1874.)

"In the Constitution and laws of the United States the word 'citizen' is generally, if not always, used in a political sense to designate one who has the rights and privileges of a citizen of a state or of the United States. It is so used in section 1 of Article XIV of the amendments of the Constitution, which provides that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,' and that 'no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. But it is also sometimes used in 'popular language to indicate the same thing as resident, inhabitant, or person." (Baldwin v. Franks, 120 U.S. 678, 690, Mar. 7, 1887.)

"The Fourteenth Amendment did not radically change the whole theory of the relations of the state and Federal governments to each other, and of both governments to the people. The same person may be at the same time a citizen of the United States and a citizen of a State." (In re Kemmler, 136 U.S. 436, 448, May 23, 1890.)

"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, 'All persons born in the United States,' by the addition, 'and subject to the jurisdiction thereof,' would appear to have been to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases--children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State--both of which, as has already been shown, by the law of England, and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country." (United States v. Wong Kim Ark, 169 U.S. 649, 682, Mar. 28, 1898.)

"The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the Fourteenth Amendment of the Constitution, must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by

Chief Justice Marshall in the well known case of The Exchange; and as the equivalent of the words 'within the limits and under the jurisdiction of the United States,' and the converse of the words, 'out of the limits and jurisdiction of the United States,' as habitually used in the naturalization acts. This presumption is confirmed by the use of the word 'jurisdiction' in the last clause of the same section of the Fourteenth Amendment, which forbids any State to 'deny to any person within its jurisdiction the equal protection of the laws.' It is impossible to construe the words 'subject to the jurisdiction thereof, in the opening sentence, as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States.'" (United States v. Wong Kim Ark, supra, at 687.)

"The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States." (United States v. Wong Kim Ark, supra, at 693. See also: In re Look Tong Sing, 21 F. 905, Sept. 29, 1884; In re Wy Shing, 36 F. 553, Nov. 8, 1888; Perkins v. Elg, 307 U.S. 325, 328-329, May 29, 1934; File JAG: J:JL: ac, SO 81291, Aug. 22, 1942, C.M.O. 1-1942, p. 104.)

Rights and duties of citizens.- "Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the preemptory and explicit language of the Fourteenth Amendment, which declares and ordains that 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. '" (United States v. Wong Kim Ark, 169 U.S. 649, 694, Mar. 28, 1898.)

"The power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away. 'A naturalized citizen,' said Chief Justice Marshall, 'becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might gue. Osborn v. United States Bank, 9 Wheat. 738, Congress having no power to abridge the rights

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