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§ 215.: The United States government one of enumerated powers.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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The United States government one of enumerated powers.—
Very frequently, during the first century of our national existence, the government of the United States has assumed powers, which were highly essential to the promotion of the general welfare, but which were not expressly delegated to the Federal government. The exercise of such powers has always met with the vehement objection of the party in opposition (although each of the great national parties has in turn exercised such questionable powers, whenever public necessities or party interest seemed to require it); the objection being that the constitution did not authorize the exercise of the power, since there was no delegation of it by the constitution. Popular opinion, concerning the fundamental character of the Federal government, was formulated in the adoption of the tenth amendment to the constitution, which provides that “the powers, not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Relying upon this amendment as the authority for it, it has become the universally recognized rule of constitutional construction that, adopting the language of an eminent writer on constitutional law, “the government of the United States is one of enumerated powers, the national constitution being the instrument which specifies, and in which the authority should be found for the exercise of, any power which the national government assumes to possess. In this respect it differs from the constitutions of the several States, which are not grants of powers to the States, but which apportion and impose restrictions upon the powers which the States inherently possess.”1
The so-called “strict constructionists” have maintained that the United States can exercise no power but what is expressly granted by the constitution. But this rule was at times applied so rigidly by the party in opposition, whenever it was desirable to prevent the enactment of an obnoxious law, that the right was denied to the United States to exercise even those powers which, although not expressly delegated, were so necessary to the effectuation of the express powers, that it cannot be supposed that the framers of the constitution did not intend to grant them. In numerous instances, the question of constitutional construction has been brought for settlement before the Supreme Court of the United States; and it is now firmly settled, that the Federal government can exercise, not only the powers which are expressly granted, but also those powers, the grant of which can be fairly implied from the necessity of assuming them, in order to give effect to the express grant of powers. “The government of the United States can claim no powers which are not granted to it by the constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication.”1
This doctrine of implied powers gave to the Federal constitution that elasticity of application, without which the permanency of the Federal government would have been seriously endangered.2 But at the same time it produced the very evil, in a greater or less degree, the fear of which urged the strict constructionists to oppose its adoption, viz.: that it would open the way to the most strained construction of express grants of power, in order to justify the exercise of powers that could not be fairly implied from the express grants. Indeed, the country has often been presented with the spectacle of United States judges and legislators, engaged in justifying questionable but necessary assumptions of power by the general government, by laboriously twisting, turning and straining the plain literal meaning of the constitutional provisions, seeking to bring the powers in question within the operation of some express grant of power. For illustration I will refer only to two extreme cases, the Louisiana purchase, and the issue of treasury notes with the character of legal tender.
In the case of the Louisiana purchase, the exercise of the questionable power was so plainly beneficial to the whole country, that it was generally acquiesced in. But the claim of an express or implied power to make the purchase was so palpably untenable, that the transaction has been tacitly admitted to have been an actual but necessary violation of the constitution. Even Mr. Jefferson, to whom the credit of effecting the purchase of Louisiana was justly and chiefly due, was of the opinion that there was no warrant in the constitution for the exercise of such a power, and recommended the adoption of an amendment to the constitution, authorizing its purchase. In speaking of the objections that were urged against the project, Judge Story says: “The friends of the measure were driven to the adoption of the doctrine that the right to acquire territory was incident to national sovereignty; that it was a resulting power, growing necessarily out of the aggregate power confided by the Federal constitution, that the appropriation might justly be vindicated upon this ground, and also upon the ground that it was for the defense and general welfare.”1
The acquisition of Puerto Rico, Guam and the Philippine Islands, in pursuance of the treaty of peace with Spain in closing the war of 1898 with that country, has again raised the question of the undefined power of the United States to acquire foreign territory. But the present opponents of this policy of territorial expansion make a very different point against the acquisition of foreign territory. They concede the power to acquire foreign territory by purchase or conquest, but they deny that this government has any power to make out of such acquired territory colonial dependencies; i. e. permanent dependencies. They say that the purchase of the Louisiana territory was constitutional, because it was contiguous territory; and could be expected to be ultimately populated by people of our own or kindred nationalities; that the territorial governments which Congress had established in this and other territories, which had been heretofore purchased, were temporary governmental organizations, which were designed to prepare the new communities for ultimate admission into the sisterhood of States on terms of absolute political equality, in accordance with the provisions of the Federal constitution, when the territorial governments would be superseded by a semi-independent State government, formed by the people of the territory under a constitution of their own making. The so-called anti-imperialists claim that the present cases of acquisition of foreign territory are in violation of the fundamental principles of the American Declaration of Independence, in that it is proposed to deny in perpetuity to the inhabitants of those islands, the right of establishing an independent government of their own, as well as to ultimate participation and representation in our national government. Whatever truth there may be in the allegation, that the proposition to create colonial dependencies is in violation of the principles of the American Declaration of Independence, it is not a practical question of constitutional law, as, I think, the argument in the present section will demonstate.
An equally remarkable case of a strained construction of constitutional provisions is the exercise by Congress of the power to make the United States treasury notes legal tender in payment of all debts, public and private. The exercise of this power is not so plainly beneficial; on the contrary, it has been considered by many able publicists to be both an injurious and a wrongful interference with the private rights of the individual.1 For this reason, the assumption of the power by the national government has not met with a general acquiescence; and the constitutionality of the acts of Congress, which declared the treasury notes to be legal tender, has been questioned in numerous cases, most of which have found their way by appeal to the Supreme Court of the United States. In Hepburn v. Griswold,2 the acts of Congress of 1862 and 1863 were declared to be unconstitutional, so far as they make the treasury notes of the United States legal tender in the payment of pre-existing debts. In the Legal Tender Cases,3 the opinion of the court in Hepburn v. Griswold was overruled, and the acts of 1862 and 1863 were declared to be constitutional in making treasury notes legal tender, whether they applied to existing debts, or those which were created after the enactment of the statutes, the burden of the opinion being that Congress has the right, as a war measure, to give to these notes the character of legal tender. In 1878, Congress passed an act, providing for the reissue of the treasury notes, and declared them to be legal tender in payment of all debts. In a case, arising under the act of 1878, the Supreme Court has finally affirmed the opinion announced in 12 Wallace, and held further that, the power of the government to make the treasury notes legal tender, when the public exigencies required it, being admitted, it becomes a question of legislative discretion, when the public welfare demands the exercise of the power.4 A perusal of these cases will disclose the fact that the members of the court, and the attorneys in the causes, have not referred to the same constitutional provisions for the authority to make the treasury notes legal tender. Some have claimed it to be a power, implied from the power to levy and carry on war; some refer it to the power to borrow money, while others claim it may be implied from the grant of power to coin money and regulate the value of it. It will not be necessary for the present purpose to demonstrate that this power is not a fair implication from the express powers mentioned. A careful reading of all the opinions in the cases referred to will at least throw the matter into hopeless doubt and uncertainty, if it does not convince the reader that in assuming this position, violence has been done by the court to the plain literal meaning of the words. There are only too many cases, in which forced construction has been resorted to, in order to justify the exercise of powers which are deemed necessary by public opinion. No change in the rules of construction will prevent altogether the tendency to strain and force the literal meaning of the written constitution, in order to bring it into conformity with that unwritten constitution, which is the real constitution, and which is slowly but steadily changing under the pressure of popular opinion and public necessities, checked only by the popular reverence for the written word of the constitution. But all justification for this violent construction can be removed by correcting a most surprising error in constitutional construction, an error which has produced an anomaly in constitutional law.
A stable and enduring government can not be so constructed, that no branch of it can exercise a given power, unless it is granted by the constitution, expressly or by necessary implication. A government, as a totality, may properly be compared to a general agent, who does not require any specific delegation of power, in order to do any act, provided it falls within the scope of the agent’s general authority. A government, like a general agent, may have express restrictions or limitations imposed upon the general powers. But in the absence of a prohibition, the right to exercise a given power, which falls within the legitimate scope of governmental authority, must be vested in some branch of the government.
Referring to the Federal system, it is claimed, in the assertion of this principle, that either the general government or the several State governments may exercise such a power, unless its exercise is prohibited to both by the Federal constitution. I do not mean to say that constitutional conventions never attempt to lay down a different rule. On the contrary, if the great men, who have contributed to the building up of American constitutional law, have been free from error in their construction of the tenth amendment to the Federal constitution, the adoption of that amendment was an attempt to do this impossible thing; and the attempt has resulted in repeated violations of the constitution as construed by them, by the assumption by Congress of powers, which were not expressly delegated nor fairly implied. The Louisiana purchase and the Legal Tender Cases, already referred to, furnish sufficient illustration of the truth of the statement. Cases of the same character will surely arise from time to time, and each repetition will diminish the popular reverence for the written constitution; an evil which every earnest jurist would like to prevent. The difficulty lies in the interpretation and construction of the tenth amendment.
According to the prevailing interpretation of that amendment, in order that the United States may by treaty make a purchase of foreign territory, or declare by act of Congress that the treasury notes shall be legal tender in payment of all public and private debts, the power must be granted by the constitution. It is clear that the State governments cannot exercise these powers, for the exercise of them is expressly prohibited to the States. But if it can be shown that this interpretation of the tenth amendment is erroneous,—unless the common law maxim, communis error facit jus, is recognized as binding in this case,—it must be conceded that the United States may exercise these and other like powers, although they are not expressly or impliedly granted.1 There is no reason why the real meaning of that amendment should not be given effect, in construing the constitutionality of such acts. For no rule of construction is binding upon the courts and other departments of the government, which does not rest for its authority upon some provision of the written constitution.2
The tenth amendment reads as follows: “The powers, not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is clear that, if a given power is not prohibited to the States, the general government cannot exercise it, unless there is an express delegation of the power. The amendment declares that such powers are reserved to the States or to the people. But if a given power is prohibited to the States, but not delegated to the United States (the right to make purchase of foreign territory, for example), can it be said that under this amendment the exercise of this power is reserved to the States? The very prohibition to the States in the Federal constitution forbids such a construction. It may be claimed that in such a case the power would be reserved “to the people.” But that claim cannot be sustained. The reservation of the powers (referred to in this amendment), in the alternative, “to the States respectively or to the people,” evidently involves a consideration of the possibility that the State constitutions may prohibit to the States the exercise of the power that is reserved, and in that case the power would be reserved to the people.
What powers “are reserved to the States respectively, or to the people?” The answer is, those powers which are “not (neither) delegated by the constitution to the United States, nor prohibited by it to the States.” These two clauses, which contain the exceptions to the operation of the amendment, are not in the alternative. In order that it may be claimed under this amendment that a power is “reserved to the States respectively or to the people,” it must avoid both exceptions, i. e., it must be a power which is neither delegated to the United States, nor prohibited to the States. It cannot be successfully claimed that a power is reserved under this provision, which is prohibited by the Federal constitution to the States, for the reason that it is not delegated to the United States. The conclusion, therefore, is that the United States government is one of enumerated powers, so far that it cannot exercise any power which is not prohibited by the constitution to the States, unless it is expressly or impliedly delegated to the United States. But those powers, which are prohibited to the States, and which fall legitimately within the scope of governmental authority, may be exercised by the United States unless they are also prohibited to the United States. There need not be any express or implied grant of such powers to the national government.
It is not pretended or claimed that the construction of the tenth amendment here advocated conforms more nearly to the intentions of the framers of the constitution than that which has generally been accepted by writers upon the constitutional law of the country. Indeed, the early history of the United States reveals forces of disintegration in the politics of that day, equal or almost equal to the forces of consolidation, which would incline one to suppose that the intentions of the law-makers in the formation of the constitution were embodied in that construction of constitutional provisions which would most effectually hamper and curtail the powers of the national government. The great struggle of the wise men of those days was to secure for the Federal government the delegation of sufficient power to establish an independent government, and it may be said with truth that the Federal constitution was wrested from an unwilling people. It would, therefore, be impossible to show that the construction of the tenth amendment here advocated was in conformity with the intentions and expectations of those whose votes enacted the amendment. It is freely admitted that the prevailing construction is without doubt what the framers of the amendment intended. But the intentions of our ancestors can not be permitted to control the present activity of the government, where they have not been embodied in the written word of the constitution. Where the written word is equally susceptible of two constructions, one of which reflects more accurately the intention of the writer, the preference is given to that construction. But when this construction is discovered by the practical experience of a century to be pernicious to the stability of the government and in violation of the soundest principles of constitutional law; when the alternative construction is grammatically the only possible one, and relieves the constitutional law of the country of a serious embarrassment, it is but reasonable that the latter construction should be adopted, and its adoption would not violate any known rule of constitutional construction.
Cooley Const. Lim. 10, 11. See, also, to the same effect, Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 1; Story, J., in Martin v. Hunter’s Lessee, 1 Wheat. 304, 326; Waite, Ch. J., in United States v. Cruikshanks, 92 U. S. 542; Calder v. Bull, 3 Dall. 386; Trade-Mark Cases, 100 U. S. 82; Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 713; and numerous judicial utterances of the same import in the State reports.
Story, J., in Martin v. Hunter’s Lessee, 1 Wheat. 304, 326; Ch. J. Marshall in Gibbon v. Ogden, 9 Wheat. 1, 187, and other cases cited supra.
“While the principles of the constitution should be preserved with a most guarded caution, it is at once the dictate of wisdom and enlightened patriotism to avoid the narrowness of interpretation, which would dry up all its vital powers, or compel the government [as was done under the confederation], to break down all constitutional barriers, and trust for its vindication to the people, upon the dangerous political maxim, that the safety of the people is the supreme law (salus populi suprema lex); a maxim which might be used to justify the appointment of a dictator, or any other usurpation.” Story on Constitution, § 1292.
Story on Constitution, § 1286.
See ante, § 91, for a full discussion of the power of the United States Government to make its treasury notes legal tender in payment of debts.
8 Wall. 603.
12 Wall. 457.
Juillard v. Greenman, 110 U. S. 421.
It must not be understood from what is said that the writer recognizes in the national government the power to make its treasury notes legal tender. On the contrary, the power is denied to both State and Federal government on the ground that the Federal constitution expressly prohibits to both the exercise of the power. See ante, § 91.
“As men whose intentions require no concealment generally employ the words which most directly and aptly express the idea they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. * * * We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.” Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1.