CHAPTER XIII THE POWERS OF CONGRESS In THE Congress of the United States is limited to the exercise of the powers enumerated in the Constitution and the use of the means necessary and proper to carry them into execution. this regard, it stands in sharp contrast to the English Parliament -King, Lords, and Commons. The power and jurisdiction of that great assembly, as Blackstone tersely puts it, “is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds. . . . It hath sovereign and uncontrolled authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding laws concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal. ... It can regulate or new model the succession to the crown, as was done in the reign of Henry VIII and William III. It can alter the established religion of the land, as was done in a variety of instances in the reigns of Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments themselves, as was done by the act of Union and the several statutes for triennial and septennial elections. It can in short do everything that is not naturally impossible, and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what Parliament doth, no authority upon earth can undo." Compared with this omnipotence, the powers conferred upon Congress by the Constitution seem few indeed; and, as a matter of fact, most of the great questions which have agitated Great Britain during the last century—the extension of the suffrage, the regulation of factories and labor, the provision of popular education, the establishment of old-age pensions do not come within the range of federal authority at all, but are consigned to state legislatures and constitutional conventions. Nevertheless, Congress enjoys no slight power, and the swiftly multiplying interstate relations, over which it has a wide authority, are rapidly extending its control to social and economic matters of the most fundamental character. This restriction of legislative power by written law has a profound influence on the debates and deliberations of Congress, because every important controverted measure before that body is sure to be declared unconstitutional by some one. A measure may be wise, expedient, and even necessary, but if it is clearly outside the powers of the legislature, it is useless to discuss it. If, however, there is any doubt as to the constitutionality of a measure, it is sure to be the subject of searching inquiry and exposition on the part of the skilled lawyers in Congress. Some of the greatest legislative discussions in our national history, including the celebrated Webster-Hayne debate on Foote's Resolution, have been over questions of constitutionality. It often happens that the original proposal itself is lost sight of in the tortuous windings of historico-legal speculations, as was indeed the case in the controversy just mentioned. The tendency to lengthy constitutional disquisition is especially marked in the Senate, where debate is less restricted, and there are more lawyers of distinction than in the House. These discussions are often of a high order and of undoubted value in expounding the terms of the Constitution, but they are also quite as often mere displays of black-letter lore or personal vanity. More than once the country has been impatient at these diffuse lucubrations, rightly suspecting that many opposing members had first come to their conclusions on the merits of the bill under consideration, and then sought constitutional objections to it. More than once, also, these debates have only added confusion to what seemed perfectly clear and simple. "If we must wait until the great constitutional lawyers agree upon any subject," exclaimed Mr. Bourke Cockran in the House, "it is plain that we would never take a step in any direction. We would stand paralyzed at the threshold of every legislative enterprise, amazed and bewildered-puzzled to distinguish amid the din of their vociferation how much of it is advice to us and how much of it is denunciation of each other. I defy any man to define Congress itself according to the constitutional lawyers, after he has read three of their speeches." 1 Reinsch, Readings, p. 256. Broadly speaking, there are three views of the Constitution which may be taken by any member of Congress in deciding upon a controverted constitutional question. The first of these is known as "strict construction," a view which would restrict the powers of Congress to the bare letter of the written instrument, and confine the means of carrying its powers into execution to those absolutely and imperatively necessary. This theory of interpretation was applied by Jefferson in his opinion on the constitutionality of a federal bank,' and was later used with great acumen by his party as the moral justification for their opposition to the Federalists. During the long controversy over slavery, it was the chief reliance of southern statesmen in resisting the northern pressure on Congress to use its powers as fully as possible in restricting the spread of slavery to the territories. With the disappearance of the old party antagonisms since the Civil War, there have not been many occasions to call the strict construction view into party services. The Democratic party, it is true, occasionally appears to oppose the encroachments of federal authority, but its concrete legislative proposals can hardly be regarded as consonant with a narrow conception of the Constitution. The second view of the powers of Congress, originally assumed by the Federalist party and taken on various occasions by all parties, as their interests have required, is that of "liberal construction." The adherents to this doctrine deny that there is any warrant in the Constitution for taking the narrow view, and they lay great stress on that clause of the Constitution which authorizes Congress to make all laws necessary and proper for carrying into execution the powers expressly enumerated. They accordingly take a generous view of the enumerated powers, and then interpret the words "necessary and proper" to mean "highly useful and expedient."3 Under this construction, a national bank was created, American industries have been protected, national highways built, paper money issued, and irrigation, reclamation, and other large schemes of public improvement undertaken. Only under this conception of the Constitution has the federal government been made in any way adequate to the exigencies of a national system of economy. 1 Readings, p. 237. 3 Ibid., p. 240. 2 Ibid., p. 93. Ibid., pp. 66 and 241. The third view of the proper attitude to be taken by Congress in considering the constitutionality of any legislative proposition, and one which has been quite generally taken, consciously or unconsciously, by the liberal constructionists, was thus stated by Mr. Bourke Cockran, during a debate in the House: "It seems to me that the duty of Congress is to examine closely the condition of the country and keep itself constantly informed of everything affecting the common welfare. Wherever a wrong is found to exist with which the nation can deal more effectively than a state, it is the business of Congress to suggest a remedy. . . . Our first step must be in the direction of legislation. The only way we can ascertain definitely whether a law which we believe will prove effective is constitutional or unconstitutional is not by abandoning ourselves to a maelstrom of speculations about what the Court may hold or has held on subjects more or less kindred, but to legislate, and thus take the judgment of the Court on that specific proposal. We can tell whether it is constitutional or unconstitutional when the Court pronounces upon it and not before. Even if the Court declares it unconstitutional, its decision will not reduce us to helplessness. When it drives us from establishing a remedy by legislation, it will, by that very act, direct us to propose a remedy by constitutional amendment. Having framed a suitable amendment and proposed it to the legislatures of the states, our duty will have been accomplished. The final step toward full redress will then be with the bodies most directly representative of the people affected by the wrong." Although the important functions of Congress will be treated more in detail in the chapters which follow, it seems desirable to give here, even at the risk of some repetition, a general survey of all the powers vested in our national legislature. Such a presentation does more than satisfy the theoretical requirements of an academic presentation of the subject. A general view of all the powers of Congress is simply indispensable to an understanding of current politics, for questions of constitutionality underlie all of our political controversies over the powers of the federal and state governments, over centralization and state rights, over national and local reforms. Such a survey is rendered especially necessary by the altogether too widespread confusion which 1 Reinsch, Readings, p. 256. exists among citizens as to the nature of the federal system. Every student of American government should have definitely and clearly fixed in mind the various powers conferred upon Congress not as mere rules of law, but as great principles of political practice controlling the national legislature in its manifold relations to the life of the people in every territory and commonwealth of the American empire. I. In relation to revenue and expenditures, Congress has the power to lay and collect taxes, duties, imposts, and excises, and to appropriate money, in order to pay the debts and provide for the common defence and general welfare of the United States.1 This power is not unlimited. Indirect taxes, duties, imposts, and excises must be uniform throughout the United States —that is, must be imposed at the same rate on the same article wherever found. Poll taxes, taxes on real and personal property, taxes on incomes from real and personal property, and other direct taxes,3 must be apportioned among the states according to population. Congress cannot tax exports from a state, and under an interpretation by the Supreme Court cannot tax the "necessary instrumentalities" of a state government, such as the salaries of state and local officers, and state and municipal bonds. Appropriations for the army cannot be made for a period of more than two years, but otherwise the power of Congress to spend money is only controlled by its discretion.* II. In respect to national defence, the powers of Congress are practically unlimited, except by the provision that the President shall be commander-in-chief and that military appropriations shall not be made for a greater period than two years. Congress can raise and support armies, create and maintain a navy, and provide for the organization and use of the state militia. Congress also declares war, grants letters of marque and reprisal 1 See below, chap. xviii. 2 Readings, p. 323. 3 Ibid., pp. 327, 328. 6 4 The account given here is based largely on Burgess, Political Science and Constitutional Law, Vol. II, chap. vii. 5 Below, chap. xvii. Į • "Privateering" (among the powers concerned) was abolished by the Declaration of Paris in 1856. While the United States did not sign that Declaration, it no longer grants letters of marque and reprisal. S |