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CHAPTER V.

PROPOSED AMENDMENTS AFFECTING THE POWErs of THE GOVERNMENT.

79. DIVISION OF POWERS BETWEEN THE STATES AND THE GENERAL GOVERNMENT.

In the formation of the Government, one of the most difficult things proved to be the setting aside the powers of the General Government from those of the States. Historically, there were many powers which had been exercised by the colonies, and later by the States, in which the English Government and the Continental Congress and the Congress of the Confederation had never shared. The principle tacitly adopted was that the States should retain all not expressly delegated to the Union. Then it was agreed that the grant of power to the Federal Government should be expressed in a few broad phrases. No attempt was made to enumerate minutely, but generally principles requiring later interpretation were admitted. Hence disputes quickly arose, and parties championing either broad or strict construction were formed. During the one hundred years there have been successive controversies. Considerable difficulty has been experienced in the attempts to discriminate between the powers granted by the Constitution to the States and General Government, respectively. Especially was this true in questions concerning taxation and commerce. Naturally, attempts have been made to secure amendments, either to remedy defects or to establish some favorite principle. It is noteworthy that of the propositions early brought before the States for ratification two were simply in conformation of the principles adopted by the Convention.' The change in the relative powers and importance of the States and the Union is due to the growth of custom, and especially to the effect of the civil war.

80. RESERVATION OF NONDELEGATED POWERS TO THE STATES.

The Massachusetts convention was the first to adopt the plan of proposing amendments to the Constitution at the time they

1 The ninth and tenth amendments.

ratified it. One of the amendments which this convention most desired to have added to the Constitution was a clause distinctly reserving the nondelegated powers to the States, hence they placed first in the series which they recommended an article which stipulated "that it be explicitly declared that all powers not delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised." The plan thus suggested of proposing amendments was taken up by six of the other ratifying conventions. A favorite subject for their recommendation was a provision similar to one quoted above.2 In accordance with the desire so generally expressed, Mr. Madison included in the series of amendments proposed by him in the First Congress a provision similar to that recommended by the States. It was in these words: "The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively." Several unsuccessful attempts were made in both Houses to insert the word " pressly" before the word "delegated." The amendment finally passed Congress at the same time as the others of the series, with the addition of the words "or to the people" at the end of the article."

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81. EFFECT OF EXPRESSED PROHIBITIONS ON CONGRESS.

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Another phase of the same agitation grew out of the fear that the expressed inhibition on Congress against the exercise of certain powers might be construed into an assumption of powers not so prohibited. To meet this case the constitutional convention in Virginia also recommended an additional article as a guide in the interpretation of the Constitution and to prevent the extension of the power of Congress. It was in these words: "That those clauses which declare that Congress shall not exercise certain power be not interpreted, in any manner whatsoever, to extend the power of Congress; but that they be construed either as making exception to the specified power when this shall be the case, or otherwise, as inserted

App., No. 1.

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* Convention in New Hampshire, South Carolina, Virginia, and North Carolina also proposed a similar amendment. App., Nos. 11, 14, 26, 78.

3 App., Nos. 145, 190.

4 A similar provision in the constitutions of New Hampshire, Massachusetts, Indiana, and West Virginia.

5 App., Nos. 191, 192, 231, 232, 233, 265, 266.

6 App., No. 266.

The North Carolina convention incorporated this amendment in her series as well as several of the other propositions of the Virginia convention. App., No. 95.

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merely for greater caution." This might also have been considered an additional guaranty of the rights of the States, but Mr. Madison in his series had so changed this proposition that it had reference only to the rights reserved to the people. It read: "The exception here or elsewhere in the Constitution made in favor of particular rights shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution, but either as actual limitations of such powers, or as inserted merely for greater caution." The committee reported this amendment in the form in which it was adopted and as it now appears in the ninth amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."5

82. SUITS AGAINST STATES.

In only one case has the Constitution been so construed as to arouse a sufficient number of the States to secure its emendation. This was occasioned by the decision of the Supreme Court that they would entertain suits instituted by individuals against States."

After several preliminary attempts had been made, an amendment passed Congress September 5, 1794, forbidding the judicial power of the United States extending "to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State," and was declared to have been ratified in a message of the President to Congress, dated January 8, 1798. In general, the effect of this amendment has been salutary, and only one effort has been made to annul it.

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83. IMPLIED POWERS OF CONGRESS.

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In view of the increasing tendency to rely upon the doctrine of implied powers, in 1806, Mr. Clopton of Virginia presented an amendment providing that the necessary and proper

1 App., No. 42.

2 App., No. 139.

3 App., Nos. 177, 178.

4 App., No. 229.

In 1864 Mr. Davis proposed an amendment considerably expanding this article. App., No. 10390.

6 Considered more fully, ante, par. 76.

'App., No. 321.

8 App., No. 1573. Proposed in 1883. See ante, par. 76.

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clause of section 8, Article I, in regard to the powers granted to Congress, "shall be construed so as to comprehend only such laws as shall have a natural connection with and immediate relation to the powers enumerated in the said section, or to such other powers as are expressly vested by the Constitution in the Government of the United States, or in any depart ment or office thereof." No further attempt was made to amend the Constitution in regard to the division of powers until some twenty-three years later. In December, 1829, Mr. Hall of North Carolina introduced a resolution in the House calling for the appointment of a select committee to "inquire into the expediency of amending the Constitution so as to define more clearly the separation between the powers delegated to the Government of the United States and those retained by the people, or delegated to the State governments."2 The House refused to agree to the resolution. This was just previous to the nullification by South Carolina, but the proposition may have been prompted by a desire to settle the question of a protective tariff. On January 9, 1833, Congress received an application from the State of Georgia for the call of a constitutional convention to amend the Constitution.3 In the call some thirteen particulars were enumerated in which the resolutions declared the experiences of the past had clearly proved that the Constitution required amendment.

The first two of these were as follows: First, "That the powers delegated to the General Government, and the right reserved to the States or to the people may be more distinctly defined," and the second, "That the power of coercion by the General Government over the States, and the right of a State to resist an unconstitutional act of Congress may be determined." There is no occasion to look far to discover the events which suggested these propositions. Obviously they were, first the nullification of South Carolina, which was still

App., No. 377.

2 App., No. 599.

3 Alabama also made application, and South Carolina called for a convention of the States. See post, par. 177.

4 App., Nos. 613,614. The preamble declared that "there exist many controversies growing out of the cases in which Congress claims to act under construction or implied powers, out of the disposition of Congress to act under assumed powers, and out of the right of jurisdiction either claimed or exercised by the Supreme Court, all of which tend to diminish the affection of the people for their own Government," etc., to a dissolution of our happy Union, and a severance of the States into hostile communities, each regarding and acting toward each other with the bitterest enmity."

in its height, for the President's special message on the situa tion was not sent to Congress until a week later; and second, Georgia's own troubles with the Federal judiciary over the Indian land question. Nothing, however, came of the application; it was simply received and tabled. In 1864 Mr. Davis proposed, as one of the series of amendments to be submitted to a convention of the States, an article which provided that "in giving construction to the Constitution," in regard to "all rights, liberties, or privileges assured by it to the people, or powers reserved to the States, and all denial, restriction, or limitation of powers to the United States, the Federal Government, or any of its officers," this rule shall be inflexibly adhered to, namely, "that its particular or express language shall not be abrogated, impaired, or in any way affected by any of its general language or provision, or by any implications resulting from it."2

84. PERFORMANCE OF NATIONAL FUNCTIONS BY THE STATES.

The extreme jealousy with which the rights of the States were guarded can be seen by the character of an amendment proposed by the ratifying convention of South Carolina. This amendment declared that "Whereas it is essential to the preservation of the rights reserved to the several States, and the freedom of the people under the operation of a general government, that the right of prescribing the manner, time, and place of holding the election to the Federal Legislature should be forever inseparably annexed to the sovereignty of the sev eral States: This convention doth declare that the same ought to remain, to all posterity, a perpetual and fundamental right in the local government, exclusive of the interference of the General Government, except in cases where the legislature of the States shall refuse or neglect to perform and fulfill the same according to the terms of the said Constitution."3

It was not until 1860 that there was presented another amendment that can be properly classified under this head. Mr. Hindman of Arkansas included in the series of amend. ments introduced by him on the 12th of December, as a solu tion of the question of the hour, an article which stipulated that "all Federal officers exercising their functions within the

1 See ante, par. 77.

2 App., No. 1039p. For other articles of this series, see post, par. 103.
3App., No. 10.

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