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A commission to urge the
State for which he shall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no vote unless they be equally divided. The Senate shall choose their own officers and also a President pro tempore in the absence of the Vice-President or when he shall exercise the office of the President of the United States."
Sec. 3. A legislative commission is hereby created, to be composed of the governor and eight members, to be appointed by him, not more than four of whom shall belong to the same political party, to be known as the senatorial direct-election commission of the State of Oklahoma. It shall be the duty of said legislative commission to urge action by the legislatures of the several States and by the Congress of the United States to the end that a convention may be called as provided in section 1 hereof. The members of said commission shall receive no compensation.
Sec. 4. That the governor of the State of Oklahoma is hereby directed forthwith to transmit certified copies of this joint resolution and application to both Houses of the United States Congress, to the governor of each State in the Union, and to each of our Representatives and Senators in Congress.
27. Judicial Expansion of the Constitution *
There is perhaps no better example of the way in which the bare letter of the federal Constitution may be expanded by judicial reasoning than the famous opinion of Chief Justice Marshall in the case of McCulloch v. Maryland. In 1816 Congress
authorized the establishment of the Second United States Bank and two years later Maryland imposed a tax on the circulating notes of its branches in that state. Here was a knotty judicial problem; Congress was not expressly authorized to establish a Federal Bank, and Maryland was not expressly forbidden to impose the tax in question. The Supreme Court, however, decided that the Bank was constitutional and the Maryland tax was invalid.'
This government is acknowledged by all to be one of enumer- Powers enumerated, ated powers. The principle, that it can exercise only the powers but the granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist.
Among the enumerated powers, we do not find that of estab- The lishing a bank or creating a corporation. But there is no phrase does not in the instrument which, like the Articles of Confederation, ex- minutely cludes incidental or implied powers; and which requires that describe everything granted shall be expressly and minutely described. powers. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people;" thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited
1 In speaking of the constitutionality of the first Bank bill, Madison said: "It appeared on the whole that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution . . . condemned by the expositions of the friends of the Constitution whilst depending before the people; was condemned by the apparent intentions of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by the Congress themselves to the Constitution." For Jefferson's view, see below, p. 237.
2 See above, p. 25.
Petty restrictions should not hinder the use of the great powers.
The vast revenue
operations should be facilitated.
to the other, to depend on a fair construction of the whole instrument.
Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It may, with great reason, be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depend, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means.
Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the Constitution preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed.
We think the sound construction of the Constitution must allow Appropriate to the national legislature that discretion, with respect to the means be used for by which the powers it confers are to be carried into execution, legitimate which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. 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, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.
That a corporation must be considered as a means not less Reasons why the usual, not of higher dignity, not more requiring a particular Constitution specification than other means, has been sufficiently proved. did not If we look to the origin of corporations, to the manner in which they have been framed in that government from which we have derived most of our legal principles and ideas, or the uses to which they have been applied, we find no reason to suppose that a constitution, omitting, and wisely omitting, to enumerate all the means for carrying into execution the great powers vested in government, ought to have specified this. Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed only for the purpose of carrying into execution the given powers, there could be no motive for particularly mentioning it.
If a corporation may be employed indiscriminately with other A banking means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, used as if required for its fiscal operations. To use one, must be within well as the discretion of Congress, if it be an appropriate mode of execut- corporation. ing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly
objections constantly arise.
have they been felt, that statesmen of the first class, whose previous opinions against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, Congress justifying the measure by its necessity, transcended, perhaps, its powers to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of this measure. Were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.
28. The Congressional Expansion of the Constitution to Meet New Needs
Congress has never allowed constitutional quibbles to stand in the way of important legislation in behalf of national interests. The way in which it has brushed aside narrow interpretations is eloquently described by Mr. Jones in the following speech made in the House of Representatives in 1902, in favor of appropriations for irrigation:
We are met at the threshold of the discussion of this bill with the same objection that has met every other great question in the past; with the same obstacle that has been in the way of every upward and onward growth of our nation since its foundation; with the same reason that would dwarf, throttle and destroy our national life and progress it is unconstitutional. How often have we heard that cry! What great measure has ever been presented for our country's welfare that has not been met with this objection? The pathway of our national progress to glory and greatness is strewn with the fragments of constitutional objections.