examined in any court of the United States than according to the rules of the common law. (j) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 5. The fifth class of powers, those prohibited to the States, may be briefly recited': 5. Powers Prohibited to the States. (a) No State shall make any treaty or alliance; nor coin money; nor make anything but gold and silver a legal tender; nor pass a law impairing the obligation of contracts. (6) No State shall, without the consent of Congress, lay duties on exports or imports; nor keep troops or ships of war in time of peace; nor engage in war unless actually invaded or in imminent danger. (c) No State shall deny credit to the records and judicial proceedings of the other States; nor deny the privileges and immunities of its citizens to the citizens of other States; nor establish any but a republican form of government; nor maintain slavery; nor abridge the privilege of any citizen of the United States or deny to him the right of voting on account of race, color, or previous condition of servitude; nor deprive any person of life, liberty, or property without due process of law, nor deny to any person the equal protection of the law. 6. Powers Prohibited both to the State and the Nation. 6. There are also certain powers that are prohibited both to the State and the National Government. Neither can grant a title of nobility, nor pass an ex post facto law or a bill of attainder; nor deprive any person of life, liberty, or property without due process of law. The people have forbidden any governmental agency in America the right to do these things. As Mr. Bryce expresses it, "There are things in America which there exists no organized and permanent I See the Constitution, Art. I., Sec. 10. 'Fourteenth Amendment. This was adopted since the decision in the case of Barron vs. Baltimore, referred to on p. 79. The student should refer in this connection to the passages on pp. 356 et seq. authority capable of legally doing; not a State, because it is expressly forbidden; not the National Government, because it either has not received the competence or has been expressly forbidden."" But this passage from Mr. Bryce, and the conception that our Government is one of enumerated powers only, and that it can do only what it has "received competence" to do by a grant of powers that are expressed or implied in an enumerated list,-this description does not fully explain the character of our National Government. It is true that so far as express prohibitions are concerned, the people have reserved certain powers to themselves to be exercised only through subsequent grants of power by amendments. But it has been found impracticable, if not impossible, to confine the National Govern- . ment to a list of recited and implied powers. The written Constitution so intends and provides. But as a matter of fact the National Government is more than Government a government of delegated powers: it has asHas Original sumed power to do other than those things that have been enumerated. There is a sense in which the National Government must be regarded as one of original and inherent powers, -powers that come to it from the nature of government, from necessity and usage in government; and also from the law of the unwritten constitution. Hamilton called these The National and Inherent Powers for Resulting resulting powers. Implied powers are drawn from specific and express grants of power. Congress has power to coin money and to regulate commerce; therefore Congress may establish a mint, build lighthouses, and improve harbors. These powers are implied necessarily in those that are granted. But resulting powers come from the very character of the National Government itself and from the functions it has to perform, from the whole scope and nature of the Consti1 Bryce, vol. i., p. 315. tution. The National Government cannot be, under the Constitution, a government of unlimited powers; but every power essential to the life and processes of a nation must be conceded to it. It must be allowed to perform every national governmental function which any national sovereign government can perform, from which it is not restrained by the restrictions of the Constitution.' "For it would be impossible to construct a government no branch of which can exercise a necessary power unless it has been granted. . Whatever the written Constitution may provide on this question, the fact is that the United States Government does exercise powers which are not delegated to it by the written Constitution. The attempt [to interpret constitutional law as strictly limiting the National Government to enumerated powers] has resulted in the assumption by Congress of powers which were not expressly delegated nor fairly implied." " The extent to which such necessary and natural powers may be exercised by the National Government has been, as is well known, a subject of great discussion. The assumption of such powers has been resisted as unconstitutional usurpation; but, as a matter of fact, larger and larger powers of this kind have been established by usage, from time to time, and have come to be accepted as legal. From the point of view of constitutional government such employment of original and inherent powers is to be looked upon as the substitution of an unwritten for a written constitution, or as an advance, so far, in the development of our unwritten constitution by interpretation and usage.' 1 Even the expressed prohibitions of the Constitution do not restrain the National Government from the exercise of sovereign national powers, according to the late Insular decision. But it may be questioned whether this is accepted as permanent constitutional law. *Tiedeman, The Unwritten Constitution of the United States, p. 139. 'Professor Tiedeman mentions, as cases illustrating the employment of This distribution of powers and the limitations on the National Government will enable us to understand how, in comparing the British Parliament with the American original rather than delegated powers, the Louisiana Purchase and the Legal Tender laws. These laws were not delegated nor fairly implied. They were exercised and allowed because the National Government was a government, and, as such, it was in possession of sovereign and original powers touching these subjects. The late decision in the Insular Cases is a still more forcible illustration. (See p. 385.) The question here raised, as to the exercise by the National Government of original and unenumerated powers, is made clear in the following diagram from Professor Tiedeman : The whole circle represents the sum total of governmental powers; circle A, powers delegated to the United States; circle B, powers reserved to the States; segment C, concurrent powers; segment D, powers prohibited to both governments; segment E, powers prohibited to the States, but neither prohibited nor delegated to the United States. The question for discussion is whether the U. S. Government may exercise a power which is prohibited to the States, but which is neither prohibited nor delegated to the General Government, that is, the powers represented in E.-Tiedeman, The Unwritten Constitution, p. 138. and Constitu is Limited and Representative. Congress, the government of Parliament may be said to be sovereign and constituent while the government of Congress is not. In contradistinction, the gov- Parliament ernment of Congress is limited and representa- Is Sovereign tive. In law, Parliament is the nation. Its ent; Congress powers represent the sum total of governmental powers. There is no political power above it competent to restrain or overrule it; there is no sphere or field of government in which it may not operate, no act of government which it may not perform. Congressmen represent the people; but Parliament is the people. Congress is the agent; Parliament is the principal. Congressmen have constituents separate from and above them; but, in law, Parliament holds within itself the constituent parts of the nation. Since the constituent elements of the nation are in Parliament, whatever the nation can do in its sovereign capacity the Parliament can do. It is not restrained by a constitution, because its acts make up the Constitution, and the courts accept and act in harmony with any act passed by Parliament.' "Parliament is the British nation for every purpose. Congress is the American nation only for the purpose of exercising the powers delegated in the Constitution." For example, in 1716, the English Parliament, which had been elected for a term of three years, passed the Septennial Act, by which the members prolonged their own terms to seven years. This act was denounced as "unconstitutional"; but it was unconstitutional only in the sense of being unusual and unprecedented,-such a thing had never been done before. The Septennial Act, however, was perfectly valid; it was accepted by the courts and it has ever since held as law. Whatever Parliament does is constitutional. But imagine members of Congress, having been elected for the constitutional term of two years, attempting by their own act, a law of Congress, to extend their term to 'C. F. Randolph, Law and Policy of Annexation, p. 45. I See p. 95. |