Other powers are of such a character that they may be exercised by either of two Governments, but not by both. The grant of such a power to the National Government makes it exclusive. Of necessity, many of the powers granted to Congress are not exclusive. In such matters, States may exercise power also, pro vided State action does not conflict with the superior powers of the National Government in the same field. Congress has com plete power to regulate bankruptcies, but during a good part of the time since 1789 there has not been a Federal bankruptcy law, and the matter has been left to the States. Congress has only in small part exercised its power to fix the standard of weights and measures, and there is valid State legislation upon this subject in all the States.
The Constitution itself expressly provides for concurrent authority over the militia.
Under a general grant of power to regulate interstate corn merce, Congress has full power, but the states may legislate in regard to local needs and circumstances, unless Congress other wise directs.
Although all powers of the National Government must be found within the terms of a written document, this by no means implies that all powers must be expressly granted by that docu ment. The Constitution of the United States grants a number of important powers in broad terms to Congress and to the other departments of the National Government. It further empowers Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Throughout the earlier decades of Government under this Constitution, political and legal contests centred about the mean ing of the words "necessary and proper," one party emphasizing the word "necessary" as narrowing the powers conferred and the other the word "proper" as broadening them. The rule of broad and liberal construction announced by Chief Justice Marshall in 1819 has prevailed: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, and which are not prohibited, but consistent with the letter and spirit of the Constitution, are con stitutional." Substantially all powers not National belong to the States, and such powers must be determined in large part by a process of subtraction. Naturally no precise result can be obtained when the powers to be subtracted are based on broad implications and are not definitely determined. The important national powers with respect to interstate commerce, taxation, treaties, post offices and post roads, and maritime jurisdiction, have been construed broadly, almost without exception.
For more than a century the United States Supreme Court has been engaged in determining the line between National and State power. This is a continuing duty. It is impossible to draw any definite or permanent line between National and State functions. The steamboat and the railroad, the telephone and the telegraph, the aeroplane and the radio have been the potent factors in the development of National power. Railroad regulation began with the States, but has tended to come almost completely under National control. Rapid progress in this direction has been made since the creation of the Interstate Commerce Commission in 1887. The so-called anti-trust movement began with the states, but restrictive commercial practices have largely come under National supervision with the Sherman Anti-Trust Act of 1890 and the creation of the Federal Trade Commission in 1914. Where a
problem is national in character its solution will by some means fall to the National Government. The broad and flexible powers of that Government are capable of further expansion as new needs develop with economic, social and engineering changes.
Along with the increase in National powers and in the activities of the National Government has come also a similar increase in the functions performed by the State Government. State Govern ments today do more than ever before and cost more in propor tion.
Powers of State Governments are broad and comprehensive. Subject only to the condition that the Government shall be Re publican in form, the States organize their own Central and Local Governments and provide revenues for the support of these Governments. The State Courts administer the great body of law affecting the rights of individuals, and for the suppression of crime. Education, though aided by the National Government, is under the control of the States and of the Local Governments created by them. The same statement applies to the construction and maintenance of highways, and to the great mass of govern mental details with which the citizen comes in daily contact. Indeed, the American of today is still in much the position de scribed by James Bryce fifty years ago: "The State, or local authority constituted by State statutes, registers his birth, appoints his guardian, pays for his schooling, gives him a share in the estate of his father deceased, licenses him when he enters a trade (if it be one needing a license), marries him, divorces him, entertains civil actions against him, declares him a bankrupt, hangs him for murder. The police that guard his house, the local boards which look after the poor, control high ways, impose water rates, manage schools—all these derive their legal powers from his State alone." But attention should be called to the fact that developments since 1933 greatly increase the importance of the National Gov ernment, not only in the functions which it performs but also in its dominance over State Governments. Unemployment compen sation and old age pensions are theoretically under State control, but in fact, Federal control over State action is maintained through conditional Federal subsidies and through a Federal tax subject to 90% credit upon State compliance with Federal re quirements. Through a broad construction of Federal power to regulate "commerce among the several States" there has come a Federal control over labour disputes and over hours and wages of labour where a substantial part of the articles dealt with has passed from one State to another or is to be marketed across State lines, or where the transaction is associated with the means of in terstate traffic. Through the same power the National Govern ment is now determining the planting acreage of crops and the conditions and prices in the marketing of milk. Through the enormous funds spent on relief the National Government has also established a substantially complete dominance over the States. The States remain, and will remain, as instruments of Government but the doMinating control of the National Government will also remain. The functions enumerated by James Bryce will remain State functions, but the States will be largely dominated in the performance of these functions. The maintenance of State func tions must, however, depend (1) upon the more efficient conduct of State Governments and (2) upon the more effective co-opera tion with each other by the States as to problems which extend beyond the boundaries of a single State.