One of the fundamental problems in a federal system is the problem who should have the deciding voice in the question of the division of power between the State and the Nation. This problem is twofold: First: Is this question to be decided by the component "states" or by the nation or confederacy as a whole? Second: What organ - legislative, executive, or judicial, - should be entitled to speak in the name of the deciding authority, whether that be "state" or "nation"? It is generally assumed that the United States Constitution has solved this problem by giving the United States Supreme Court final authority to decide all questions arising out of the distribution of power between State and Nation, just as it has given it the power to decide all questions arising out of the distribution of power in the Federal government itself between its legislative, executive, and judicial organs. Both branches of this assumption are, in my opinion, erroneous. In my Government by Judiciary I have endeavored to prove, by an examination of the history of the United States Constitution, and of the history of the United States under the Constitution, that our present system of government, which is virtually a Government by Judiciary, instead of a government by the people as is commonly supposed, was not authorized by the Constitution, and was not foreseen by its framers or early interpreters. That work has dealt, however, primarily, with the question of the distribution of power within the federal government itself, and within the states themselves as far as judicial control is concerned, and only touched incidentally upon the problem of distribution of power between State and Nation, - this problem being touched upon only insofar as it illustrates the main question of judicial control of the legislative and executive departments in our system of government. This led to some curious misunderstandings as to my position on the question of the proper method of determining the distribution of power between State and Nation. I am therefore grateful for the opportunity given me in this article of clarifying my position on this subject. It is the purpose of this article to treat this subject, as far as possible, without complicating it with the greater problem discussed in my Government by Judiciary. I must, therefore, refer my readers to that work for any phase of the subject which involves the major question of our constitutional system.
Louis B. Boudin,
State and Nation in a Federal System,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol41/iss1/2