Page images

ernment of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution. Words meant to be subsidiary to the execu tion of limited powers ought not to be so construed as to give unlimited powers, nor a part so to be taken as to destroy the whole residue of the instrument.'

Jefferson held that the very fact that some powers were specifically granted must be taken to mean that those not so specified were withheld, according to the old maxim: "As exceptions strengthen the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated."

Such was Jefferson's famous statement of the doctrine of the strict construction of the Constitution. It will be seen from the outcome, as we notice the conclusions of our history and the interpretations of the Supreme Court, that the doctrine is sound and unquestionable to the extent that it teaches that our National Government is limited and not sovereign and plenary in its powers, and that the Constitution and not its own discretion defines those limits.

Hamilton and Broad Construction:

But it was Hamilton's office to teach, by his doctrine of broad, or liberal, construction, that our Government is a government of implied powers; that our Constitution may be so construed as to give broader, larger, and more numerous powers Our Governthan Jefferson would permit. In the same controversy that brought out the expression from Jefferson, Hamilton said:

ment Is one of Implied Powers.

"There are express and implied powers, and the latter are as effectually delegated as the former. There is also another Constitution, supposed to sweep in all other necessary powers not delegated to Congress. It closes (is "subsidiary to") the list of powers conferred on Congress. Art. I., Sec. 8, of the Constitution.

'Jefferson's Kentucky Resolutions, Arts. I. and VII.

class of powers which may be called resulting powers-resulting from the whole mass of the power of the government and from the nature of political society rather than as a consequence of any especially enumerated power. For example, in the conquest of territory the United States would have sovereign jurisdiction of it. Thus a power not specifically enumerated may result from, or be implied in, some or all of the powers vested in the National Government. The only question, then, is this: Has the means to be employed any natural relation to any of the acknowledged, lawful ends of the government? The test of constitutionality lies in the end sought. Is the end included in the expressed powers? If it is so included the means requisite and fairly applicable are constitutional. It is an axiom inherent in the idea of government that a power vested includes by the force of the term the means requisite and fairly applicable to the end sought.

[ocr errors]

"The powers of the Federal Government are sovereign. This includes by force of the term the right to employ all means not precluded by the restrictions of the Constitution, or not immoral, or contrary to the essential ends of the political society. A Corporation may not be created by the United States for superintending the police of the city of Philadelphia, because the United States are not authorized to regulate the police of that city. But one may be erected in relation to the collection of taxes, or to the trade between the States, or with the Indian tribes; because it is the province of the Federal Government to regulate those objects, and because it is incident to a general sovereign, or legislative, power of regulating a thing, to employ all the means which relate to its regulation to the best, and greatest advantage. The degree in which a measure is necessary can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. The relation between the measure and the end,-between the nature of the means employed toward the execution of a power and the object of that power,―must be the criterion, not the more or less necessity or utility.'

[ocr errors]

'Hamilton's Works, vol. iii., pp. 181-189, Lodge ed.

These two constitutional doctrines, the one, emphasized by Jefferson, that our Government is one of limited powers, the other, emphasized by Hamilton, that it is a government of implied powers, are recognized and com bined by one of the notable decisions of the Supreme Court rendered by the great Chief Justice Marshall:



and Broad


"This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it is now universally admitted. But the question respecting the extent of the pow- Recognizes ers actually granted is perpetually arising and will both Limited probably continue to arise as long as our system shall exist. The powers of the Government are limited and its powers are not to be transcended. But the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in a 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, and which are not prohibited but are consistent with the letter and spirit of the Constitution, are constitutional.""

The doctrine of implied powers is now well established and needs no further illustration or explanation. The growth of power to the General Government by implication and interpretation is a well-known and distinguished part of our national history. But the limitations on power imposed by the National Constitution deserves further notice, since these limitations aid us the better to understand the relation between the States and the Federal Government.

It is quite a common error to suppose that the general

'Marshall in the case of McCulloch vs. Maryland, 1819.


of Powers:

tions of the

tions on the

restrictions of the United States Constitution apply to the several States, and that by these general restrictions and prohibitions the States are restrained in their governmental acts. The United States The Restric- Constitution says, for instance, that "no person Constitution shall be held to answer for a capital crime unAre Restric- less on indictment of a grand jury"; that "in General suits at common law the right of trial by jury Government shall be preserved"; that no one shall "be subject for the same offence to be twice put in jeopardy of life or limb." But it is not always understood that these and other provisions of the "Bill of Rights" apply only to the General Government; they do not limit or restrain the States. If a State, through its own constitution, should abolish the right of trial by jury, or deny the right of its citizens to claim just compensation for private property condemned for public uses, neither the National Constitution, nor the national law by the interpretation of its courts, would be brought to bear to prevent. Unless the States are specifically mentioned, the limitations imposed by the Specifically United States Constitution are imposed on the National Government only, not on the States. The United States were forbidden to deprive any person of any of the privileges guaranteed in the "Bill of Rights." The States might, in respect to their own inhabitants, infringe them all. If the States do not infringe upon expressed provisions of the Constitution especially addressed to them, or upon those implied in the whole scope of that instrument and in the grants of power to the General Government, they might regulate their own internal economy as seemed best to themselves. This is brought out in a notable decision by Chief Justice Marshall:

Unless the
States are


"The Constitution was ordained and established by the

Barron vs. Baltimore. The Supreme

Court Decides

that General


people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted for their situation, and best calculated to promote their interest. The powers to be conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by this instrument.


do not Limit

the States.

In this case Barron was pleading before the Court that the Fifth Amendment to the United States Constitution, forbidding the taking of private property for public use without compensation, ought to be so construed as to restrain the legislative power of a State as well as that of the United States; but the Court denied his plea.

This is a part of our Constitution so commonly misunderstood and of such importance that it needs to be further amplified. The Constitution of the United States was adopted in 1787 and 1788 to form a better government than that of the old Confederation. The government created by it was the National Government, not the State governments. The States were already provided with constitutions and governments of their own. These constitutions generally contained provisions securing to their people the rights guaranteed in the amend ments subsequently incorporated in the United States Constitution, and known as the "Bill of Rights." These amendments were incorporated in the United States Constitution as a guarantee that the new government would not infringe upon these rights that had already been 1 Barron vs. Baltimore, 1833, 7 Peters, 243.

« PreviousContinue »