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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 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, 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.
The account given here is based largely on Burgess, Political Science and Constitutional Law, Vol. II, chap. vii.
6 Below, chap. xvii.
"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.
authorizing officers or private parties to capture property and persons subject to a foreign power; and makes rules concerning captures on land and sea.
We are accustomed to think of Germany as a country in which the military power of the government is enormous, but the legislature of that empire enjoys no such authority as the Congress of the United States. The German constitution contains a multitude of detailed provisions as to the liability of the citizen to military service, which the legislature cannot touch; but our Congress can call every able-bodied man into the national service without regard to the state militia, and keep him there as long as it is physically possible. There also is no limit to the amount of money which can be appropriated for military purposes, or to the kind of military law which may be established. Moreover, the states are wholly at the mercy of the federal government, for they can keep no standing army or ships of war in time of peace without the consent of Congress. In answer to the charge that such an unlimited power might lead to despotism, the defenders of the Constitution, during its ratification, urged: "With what color of propriety could the force necessary for defence be limited by those who cannot limit the force of offence? If a federal constitution could chain the ambition, or set bounds to the exertions of all other nations, then, indeed, it might prudently chain the discretion of its own government and set bounds to the exertions for its own safety."
III. In respect to commerce and business, Congress may regulate commerce with foreign countries, among the several states, and with the Indian tribes; make uniform laws on the subject of bankruptcy throughout the United States; fix the standards of weights and measures; protect authors and inventors by a system of patents and copyrights; and establish postoffices and post-roads. Commerce not only includes the transportation of commodities; it embraces traffic and intercourse in all of its important branches, such as the transportation of passengers, the transmission of telegraph messages, and the carrying of oil through pipe lines.3 It is sometimes stated that the power of regulating interstate and foreign
1 The Federalist, No. XLI.
2 See below, chap. xix.
commerce is vested exclusively in Congress, but the difficulty of determining when a state law constitutes such a regulation is so great that the mere statement does not carry any very concise information. The power of Congress over bankruptcy is not exclusive; the states may legislate on the subject. The federal law, however, takes precedence in case of a conflict with the provisions of a commonwealth law, and Congress by an act of 1898 has covered the entire domain of bankruptcy.
With regard to weights and measures Congress could, if it saw fit, establish a uniform metric system throughout the United States, but it has only gone so far as to make the use of this system lawful, not obligatory. Meanwhile the regulations of the various states prevail, although the federal government aids in securing scientific exactness by maintaining in the Department of Commerce and Labor a bureau of standards, the functions of which are the custody of the standards, the comparison of the standards used in scientific investigations, engineering, manufacturing, commerce, and educational institutions, with the standards adopted or recognized by the government; the testing and calibration of standard measuring apparatus; the solution of problems arising in connection with standards; the determination of physical constants, and the properties of materials which are of particular importance in science and manufacture. To facilitate the spread of uniform systems throughout the United States, the bureau is authorized to assist not only the federal government, but also state and municipal governments, educational institutions, and private concerns engaged in manufacturing or other pursuits requiring the use of standards. The latter are charged a fee for services rendered.
The protection of authors and inventors by a system of copyrights and patents is intrusted to Congress; but it is contended by some publicists that this power is concurrent and may be exercised by any state so long as its laws do not contravene the express provision of the federal law. This point, however, has not been authoritatively adjudicated.3
For administrative purposes Congress has created a bureau of
1 Readings, p. 348.
2 Electric measures have been made uniform, however.
The power of Congress over trade-marks extends only so far as they are involved in interstate and foreign commerce.
patents in the Department of the Interior, headed by a commissioner, who administers the patent laws, issues patents for new inventions and improvements, and registers trade-marks, prints, labels, and the like. The working staff of the patent office is divided into a number of separate groups, each one of which has charge of some particular device or invention. Every application is recorded and referred to the appropriate group, which makes a search to see whether the claim is for a new invention and does not interfere with a prior patent. Nearly every inventor employs an attorney, although he is not required to do so, to assist him in prosecuting his claim. If an application is rejected, the applicant may appeal to the commissioner of patents and from his decision he may prosecute an appeal to the courts. If a patent is granted, it runs for a period of seventeen years, and extensions are sometimes made. Patents are promptly reissued, however, to remedy defects in the original specifications. The number of patents granted in 1800 was 41. The number of letters patent for the year ending June, 1908, was 34,902, exclusive of trade-marks, labels, etc.; in that year the number of applications for patents for inventions was 58,527.2
The copyright law has been steadily extended to new devices, until it now covers not only books, but also works of art, maps, charts, musical compositions, and the like. For more than a century Congress extended copyright protection only to citizens and residents of the United States, and during that time American publishers, with a few honorable exceptions, regularly "pirated" the works of foreign authors, that is, published them in the United States without paying any royalty or other compensation. Under the act of March 3, 1891, it was at last provided that the citizens of any foreign state which gives to citizens of the United States the benefit of copyright on practically the
1 The first patent law was passed in 1790; in 1836 the office of commissioner of patents was created; and in 1849 the patent bureau was transferred to the Departments of the Interior.
2 Reference: Report of the Commissioner of Palents (1908), an annual publication.
The term of a copyright is twenty-eight years with a possible renewal for twenty-eight years. Rights are secured not only to authors and inventors, but also to their heirs and assigns. New law of March 4, 1909.