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chapter 33: The Interpretation of the Constitution - Viscount James Bryce, The American Commonwealth, vol. 1 
The American Commonwealth, with an Introduction by Gary L. McDowell, 2 vols (Indianapolis: Liberty Fund, 1995).
Part of: The American Commonwealth, 2 vols.
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The Interpretation of the Constitution
The Constitution of England is contained in hundreds of volumes of statutes and reported cases; the Constitution of the United States (including the amendments) may be read through aloud in twenty-three minutes. It is about half as long as St. Paul’s first Epistle to the Corinthians, and only one-fortieth part as long as the Irish Land Act of 1881. History knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity. The Convention of 1787 were well advised in making their draft short, because it was essential that the people should comprehend it, because fresh differences of view would have emerged the further they had gone into details, and because the more one specifies, the more one has to specify and to attempt the impossible task of providing beforehand for all contingencies. These sages were therefore content to lay down a few general rules and principles, leaving some details to be filled in by congressional legislation, and foreseeing that for others it would be necessary to trust to interpretation.
It is plain that the shorter a law is, the more general must its language be, and the greater therefore the need for interpretation. So too the greater the range of a law, and the more numerous and serious the cases which it governs, the more frequently will its meaning be canvassed. There have been statutes dealing with private law, such as the Lex Aquilia at Rome and the Statute of Frauds in England, on which many volumes of commentaries have been written, and thousands of juristic and judicial constructions placed. Much more then must we expect to find great public and constitutional enactments subjected to the closest scrutiny in order to discover every shade of meaning which their words can be made to bear. Probably no writing except the New Testament, the Koran, the Pentateuch, and the Digest of the emperor Justinian has employed so much ingenuity and labour as the American Constitution, in sifting, weighing, comparing, illustrating, twisting, and torturing its text. It resembles theological writings in this, that both, while taken to be immutable guides, have to be adapted to a constantly changing world, the one to political conditions which vary from year to year and never return to their former state, the other to new phases of thought and emotion, new beliefs in the realms of physical and ethical philosophy. There must, therefore, be a development in constitutional formulas, just as there is in theological. It will come, it cannot be averted, for it comes in virtue of a law of nature: all that men can do is to shut their eyes to it, and conceal the reality of change under the continued use of time-honoured phrases, trying to persuade themselves that these phrases mean the same thing to their minds today as they meant generations or centuries ago. As a great living theologian says, “In a higher world it is otherwise; but here below to live is to change, and to be perfect is to have changed often.” 1
The Constitution of the United States is so concise and so general in its terms, that even had America been as slowly moving a country as China, many questions must have risen on the interpretation of the fundamental law which would have modified its aspect. But America has been the most swiftly expanding of all countries. Hence the questions that have presented themselves have often related to matters which the framers of the Constitution could not have contemplated. Wiser than Justinian before them or Napoleon after them, they foresaw that their work would need to be elucidated by judicial commentary. But they were far from conjecturing the enormous strain to which some of their expressions would be subjected in the effort to apply them to new facts.
I must not venture on any general account of the interpretation of the Constitution, nor attempt to set forth the rules of construction laid down by judges and commentators, for this is a vast matter and a matter for law books. All that this chapter has to do is to indicate, very generally, in what way and with what results the Constitution has been expanded, developed, modified, by interpretation; and with that view there are three points that chiefly need discussion: (1) the authorities entitled to interpret the Constitution, (2) the main principles followed in determining whether or not the Constitution has granted certain powers, (3) the checks on possible abuses of the interpreting power.
I. To whom does it belong to interpret the Constitution? Any question arising in a legal proceeding as to the meaning and application of this fundamental law will evidently be settled by the courts of law. Every court is equally bound to pronounce and competent to pronounce on such questions, a state court no less than a federal court;2 but as all the more important questions are carried by appeal to the Supreme Federal Court, it is practically that court whose opinion determines them.
Where the federal courts have declared the meaning of a law, everyone ought to accept and guide himself by their deliverance. But there are always questions of construction which have not been settled by the courts, some because they have not happened to arise in a lawsuit, others because they are such as cannot arise in a lawsuit. As regards such points, every authority, federal or state, as well as every citizen, must be guided by the best view he or they can form of the true intent and meaning of the Constitution, taking, of course, the risk that this view may turn out to be wrong.
There are also points of construction on which every court, following a well-established practice, will refuse to decide, because they are deemed to be of “a purely political nature,” a vague description, but one which could be made more specific only by an enumeration of the cases which have settled the practice. These points are accordingly left to the discretion of the executive and legislative powers, each of which forms its view as to the matters falling within its sphere, and in acting in that view is entitled to the obedience of the citizens and of the states also.
It is therefore an error to suppose that the judiciary is the only interpreter of the Constitution, for a large field is left open to the other authorities of the government, whose views need not coincide, so that a dispute between those authorities, although turning on the meaning of the Constitution, may be incapable of being settled by any legal proceeding. This causes no great confusion, because the decision, whether of the political or the judicial authority, is conclusive so far as regards the particular controversy or matter passed upon.
The above is the doctrine now generally accepted in America. But at one time the presidents claimed the much wider right of being, except in questions of pure private law, generally and prima facie entitled to interpret the Constitution for themselves, and to act on their own interpretation, even when it ran counter to that delivered by the Supreme Court. Thus Jefferson denounced the doctrine laid down in the famous judgment of Chief Justice Marshall in the case of Marbury v. Madison;3 thus Jackson insisted that the Supreme Court was mistaken in holding that Congress had power to charter the United States Bank, and that he, knowing better than the court did what the Constitution meant to permit, was entitled to attack the bank as an illegal institution, and to veto a bill proposing to recharter it.4 Majorities in Congress have more than once claimed for themselves the same independence. But of late years both the executive and the legislature have practically receded from the position which the language formerly used seemed to assert; while, on the other hand, the judiciary, by their tendency during the whole course of their history to support every exercise of power which they did not deem plainly unconstitutional, have left a wide field to those authorities. If the latter have not used this freedom to stretch the Constitution even more than they have done, it is not solely the courts of law, but also public opinion and their own professional associations (most presidents, ministers, and congressional leaders having been lawyers) that have checked them.
II. The Constitution has been expanded by construction in two ways. Powers have been exercised, sometimes by the president, more often by the legislature in passing statutes, and the question has arisen whether the powers so exercised were rightfully exercised, i.e., were really contained in the Constitution. When the question was resolved in the affirmative by the court, the power has been henceforth recognized as a part of the Constitution, although, of course, liable to be subsequently denied by a reversal of the decision which established it. This is one way. The other is where some piece of state legislation alleged to contravene the Constitution has been judicially decided to contravene it, and to be therefore invalid. The decision, in narrowing the limits of state authority, tends to widen the prohibitive authority of the Constitution, and confirms it in a range and scope of action which was previously doubtful.
Questions of the above kinds sometimes arise as questions of interpretation in the strict sense of the term, i.e., as questions of the meaning of a term or phrase which is so far ambiguous that it might be taken either to cover or not to cover a case apparently contemplated by the people when they enacted the Constitution. Sometimes they are rather questions to which we may apply the name of construction, i.e., the case that has arisen is one apparently not contemplated by the enacters of the Constitution, or one which, though possibly contemplated, has for brevity’s sake been omitted; but the Constitution has nevertheless to be applied to its solution. In the former case the enacting power has said something which bears, or is supposed to bear, on the matter, and the point to be determined is, What do the words mean? In the latter it has not directly referred to the matter, and the question is, Can anything be gathered from its language which covers the point that has arisen, which establishes a principle large enough to reach and include an unmentioned case, indicating what the enacting authority would have said had the matter been present to its mind, or had it thought fit to enter on an enumeration of specific instances?5 As the Constitution is not only a well-drafted instrument with few ambiguities but also a short instrument which speaks in very general terms, mere interpretation has been far less difficult than construction.6 It is through the latter chiefly that the Constitution has been, and still continues to be, developed and expanded. The nature of these expansions will appear from the nature of the federal government. It is a government of delegated and specified powers. The people have entrusted to it, not the plenitude of their own authority but certain enumerated functions, and its lawful action is limited to these functions. Hence, when the federal executive does an act, or the federal legislature passes a law, the question arises, Is the power to do this act or pass this law one of the powes which the people have by the Constitution delegated to their agents? The power may never have been exerted before. It may not be found expressed, in so many words, in the Constitution. Nevertheless it may, upon the true construction of that instrument, taking one clause with another, be held to be therein contained.
Now the doctrines laid down by Chief Justice Marshall, and on which the courts have constantly since proceeded, may be summed up in two propositions.
1. Every power alleged to be vested in the national government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power; on the contrary, the burden of proof lies on those who assert its existence, to point out something in the Constitution which, either expressly or by necessary implication, confers it. Just as an agent, claiming to act on behalf of his principal, must make out by positive evidence that his principal gave him the authority he relies on; so Congress, or those who rely on one of its statutes, are bound to show that the people have authorized the legislature to pass the statute. The search for the power will be conducted in a spirit of strict exactitude, and if there be found in the Constitution nothing which directly or impliedly conveys it, then whatever the executive or legislature of the national government, or both of them together, may have done in the persuasion of its existence, must be deemed null and void, like the act of any other unauthorized agent.7
2. When once the grant of a power by the people to the national government has been established, that power will be construed broadly. The strictness applied in determining its existence gives place to liberality in supporting its application. The people—so Marshall and his successors have argued—when they confer a power, must be deemed to confer a wide discretion as to the means whereby it is to be used in their service. For their main object is that it should be used vigorously and wisely, which it cannot be if the choice of methods is narrowly restricted; and while the people may well be chary in delegating powers to their agents, they must be presumed, when they do grant these powers, to grant them with confidence in the agents’ judgment, allowing all that freedom in using one means or another to attain the desired end which is needed to ensure success.8 This, which would in any case be the common-sense view, is fortified by the language of the Constitution, which authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof.” The sovereignty of the national government, therefore, “though limited to specified objects, is plenary as to those objects” 9 and supreme in its sphere. Congress, which cannot go one step beyond the circle of action which the Constitution has traced for it, may within that circle choose any means which it deems apt for executing its powers, and is in its choice of means subject to no review by the courts in their function of interpreters, because the people have made their representatives the sole and absolute judges of the mode in which the granted powers shall be employed. This doctrine of implied powers, and the interpretation of the words “necessary and proper,” were for many years a theme of bitter and incessant controversy among American lawyers and publicists.10 The history of the United States is in a large measure a history of the arguments which sought to enlarge or restrict its import. One school of statesmen urged that a lax construction would practically leave the states at the mercy of the national government, and remove those checks on the latter which the Constitution was designed to create; while the very fact that some powers were specifically granted must be taken to import that those not specified were withheld, according to the old maxim expressio unius exclusio alterius, which Lord Bacon concisely explains by saying, “as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.” It was replied by the opposite school that to limit the powers of the government to those expressly set forth in the Constitution would render that instrument unfit to serve the purposes of a growing and changing nation, and would, by leaving men no legal means of attaining necessary but originally uncontemplated aims, provoke revolution and work the destruction of the Constitution itself.11
This latter contention derived much support from the fact that there were certain powers that had not been mentioned in the Constitution, but which were so obviously incident to a national government that they must be deemed to be raised by implication.12 For instance, the only offences which Congress is expressly empowered to punish are treason, the counterfeiting of the coin or securities of the government, and piracies and other offences against the law of nations. But it was very early held that the power to declare other acts to be offences against the United States, and punish them as such, existed as a necessary appendage to various general powers. So the power to regulate commerce covered the power to punish offences obstructing commerce; the power to manage the post office included the right to fix penalties on the theft of letters; and, in fact, a whole mass of criminal law grew up as a sanction to the civil laws which Congress had been directed to pass.
The three lines along which this development of the implied powers of the government has chiefly progressed, have been those marked out by the three express powers of taxing and borrowing money, of regulating commerce, and of carrying on war. Each has produced a progeny of subsidiary powers, some of which have in their turn been surrounded by an unexpected offspring. Thus from the taxing and borrowing powers there sprang the powers to charter a national bank and exempt its branches and its notes from taxation by a state (a serious restriction on state authority), to create a system of customhouses and revenue cutters, to establish a tariff for the protection of native industry. Thus the regulation of commerce has been construed to include legislation regarding every kind of transportation of goods and passengers, whether from abroad or from one state to another, regarding navigation, maritime and internal pilotage, maritime contracts, etc., together with the control of all navigable waters not situate wholly within the limits of one state, the construction of all public works helpful to commerce between states or with foreign countries, the power to prohibit immigration, and finally a power to establish a railway commission and control all interstate traffic.13 The war power proved itself even more elastic. The executive and the majority in Congress found themselves during the War of Secession obliged to stretch this power to cover many acts trenching on the ordinary rights of the states and of individuals, till there ensued something approaching a suspension of constitutional guarantees in favour of the federal government.
The courts have occasionally gone even further afield, and have professed to deduce certain powers of the legislature from the sovereignty inherent in the national government. In its last decision on the legal tender question, a majority of the Supreme Court seems to have placed upon this ground, though with special reference to the section enabling Congress to borrow money, its affirmance of that competence of Congress to declare paper money a legal tender for debts, which the earlier decision of 1871 had referred to the war power. This position evoked a controversy of wide scope, for the question what sovereignty involves belongs as much to political as to legal science, and may be pushed to great lengths upon considerations with which law proper has little to do.
The above-mentioned instances of development have been worked out by the courts of law. But others are due to the action of the executive, or of the executive and Congress conjointly. Thus, in 1803, President Jefferson negotiated and completed the purchase of Louisiana, the whole vast possessions of France beyond the Mississippi. He believed himself to be exceeding any powers which the Constitution conferred; and desired to have an amendment to it passed, in order to validate his act. But Congress and the people did not share his scruples, and the approval of the legislature was deemed sufficient ratification for a step of transcendent importance, which no provision of the Constitution bore upon. In 1807 and 1808 Congress laid, by two statutes, an embargo on all shipping in United States ports, thereby practically destroying the lucrative carrying trade of the New England states. Some of these states declared the act unconstitutional, arguing that a power to regulate commerce was not a power to annihilate it, and their courts held it to be void. Congress, however, persisted for a year, and the act, on which the Supreme Court never formally pronounced, has been generally deemed within the Constitution, though Justice Story (who had warmly opposed it when he sat in Congress) remarks that it went to the extreme verge. More startling, and more far-reaching in their consequences, were the assumptions of federal authority made during the War of Secession by the executive and confirmed, some expressly, some tacitly, by Congress and the people.14 It was only a few of these that came before the courts, and the courts, in some instances, disapproved them. But the executive continued to exert this extraordinary authority. Appeals made to the letter of the Constitution by the minority were discredited by the fact that they were made by persons sympathizing with the Secessionists who were seeking to destroy it. So many extreme things were done under the pressure of necessity that something less than these extreme things came to be accepted as a reasonable and moderate compromise.15
The best way to give an adequate notion of the extent to which the outlines of the Constitution have been filled up by interpretation and construction, would be to take some of its more important sections and enumerate the decisions upon them and the doctrines established by those decisions. This process would, however, be irksome to any but a legal reader, and the legal reader may do it more agreeably for himself by consulting one of the annotated editions of the Constitution. He will there find that upon some provisions such as art. I, § 8 (powers of Congress), art. I, § 10 (powers denied to the states), art. III, § 2 (extent of judicial power), there has sprung up a perfect forest of judicial constructions, working out the meaning and application of the few and apparently simple words of the original document into a variety of unforeseen results. The same thing has more or less befallen nearly every section of the Constitution and of the seventeen amendments. The process shows no signs of stopping; nor can it, for the new conditions of economics and politics bring up new problems for solution. But the most important work was that done during the first half century, and especially by Chief Justice Marshall during his long tenure of the presidency of the Supreme Court (1801–35). It is scarcely an exaggeration to call him, as an eminent American jurist has done, a second maker of the Constitution. I will not borrow the phrase which said of Augustus that he found Rome of brick and left it of marble, because Marshall’s function was not to change but to develop. The Constitution was, except of course as regards the political scheme of national government, which was already well established, rather a ground plan than a city. It was, if I may pursue the metaphor, much what the site of Washington was at the beginning of this century, a symmetrical ground plan for a great city, but with only some tall edifices standing here and there among fields and woods. Marshall left it what Washington has now become, a splendid and commodious capital within whose ample bounds there are still some vacant spaces and some mean dwellings, but which, built up and beautified as it has been by the taste and wealth of its rapidly growing population, is worthy to be the centre of a mighty nation. Marshall was, of course, only one among seven judges, but his majestic intellect and the elevation of his character gave him such an ascendency, that he found himself only once in a minority on any constitutional question.16 His work of building up and working out the Constitution was accomplished not so much by the decisions he gave as by the judgments in which he expounded the principles of these decisions, judgments which for their philosophical breadth, the luminous exactness of their reasoning, and the fine political sense which pervades them, have never been surpassed and rarely equalled by the most famous jurists of modern Europe or of ancient Rome. Marshall did not forget the duty of a judge to decide nothing more than the suit before him requires, but he was wont to set forth the grounds of his decision in such a way as to show how they would fall to be applied in cases that had not yet arisen. He grasped with extraordinary force and clearness the cardinal idea that the creation of a national government implies the grant of all such subsidiary powers as are requisite to the effectuation of its main powers and purposes, but he developed and applied this idea with so much prudence and sobriety, never treading on purely political ground, never indulging the temptation to theorize, but content to follow out as a lawyer the consequences of legal principles, that the Constitution seemed not so much to rise under his hands to its full stature, as to be gradually unveiled by him till it stood revealed in the harmonious perfection of the form which its framers had designed. That admirable flexibility and capacity for growth which characterize it beyond all other rigid or supreme constitutions, is largely due to him, yet not more to his courage than to his caution.17
III. We now come to the third question: How is the interpreting authority restrained? If the American Constitution is capable of being so developed by this expansive interpretation, what security do its written terms offer to the people and to the states? What becomes of the special value claimed for rigid constitutions that they preserve the frame of government unimpaired in its essential merits, that they restrain the excesses of a transient majority, and (in federations) the aggressions of a central authority?
The answer is twofold. In the first place, the interpreting authority is, in questions not distinctly political, different from the legislature and from the executive, amenable to neither, and composed of lawyers imbued with professional habits. There is therefore a probability that it will disagree with either of them when they attempt to transgress the Constitution, and will decline to stretch the law so as to sanction encroachments those authorities may have attempted. In point of fact, there have been few cases, and those chiefly cases of urgency during the war, in which the judiciary has been even accused of lending itself to the designs of the other organs of government. The period when extensive interpretation was most active (1800–1835) was also the period when the party opposed to a strong central government commanded Congress and the executive, and so far from approving the course the court took, the dominant party then often complained of it.
In the second place, there stands above and behind the legislature, the executive, and the judiciary, another power, that of public opinion. The president, Congress, and the courts are all, the two former directly, the latter practically, amenable to the people, and anxious to be in harmony with the general current of its sentiment. If the people approve the way in which these authorities are interpreting and using the Constitution, they go on; if the people disapprove, they pause, or at least slacken their pace. Generally the people have approved of such action by the president or Congress as has seemed justified by the needs of the time, even though it may have gone beyond the letter of the Constitution. Generally they have approved the conduct of the courts whose legal interpretation has upheld such legislative or executive action. Public opinion sanctioned the purchase of Louisiana, and the still bolder action of the executive in the Secession War. It approved the Missouri Compromise of 1820, which the Supreme Court thirty-seven years afterwards declared to have been in excess of the powers of Congress. But it disapproved the Alien and Sedition laws of 1798, and although these statutes were never pronounced unconstitutional by the courts, this popular censure has prevented any similar legislation since that time.18 The people have, of course, much less exact notions of the Constitution than the legal profession or the courts. But while they generally desire to see the powers of the government so far expanded as to enable it to meet the exigencies of the moment, they are sufficiently attached to its general doctrines, they sufficiently prize the protection it affords them against their own impulses, to censure any interpretation which palpably departs from the old lines. And their censure is, of course, still more severe if the court seems to be acting at the bidding of a party.
A singular result of the importance of constitutional interpretation in the American government may be here referred to. It is this, that the United States legislature has been very largely—though less in recent years than formerly—occupied in purely legal discussions. When it is proposed to legislate on a subject which has been heretofore little dealt with, the opponents of a measure have two lines of defence. They may, as Englishmen would in a like case, argue that the measure is inexpedient. But they may also, which Englishmen cannot, argue that it is unconstitutional, i.e., illegal, because transcending the powers of Congress. This is a question fit to be raised in Congress, not only as regards matters with which, as being purely political, the courts of law will refuse to interfere, but as regards all other matters also, because since a decision on the constitutionality of a statute can never be obtained from the judges by anticipation, the legislature ought to consider whether they are acting within their competence. And it is a question on which a stronger case can often be made, and made with less exertion, than on the issue whether the measure be substantially expedient. Hence it was usually put in the forefront of the battle, and argued with great vigour and acumen by leaders who might be more ingenious as lawyers than farsighted as statesmen.
A further consequence of this habit is pointed out by one of the most thoughtful among American constitutional writers. Legal issues are apt to dwarf and obscure the more substantially important issues of principle and policy, distracting from these latter the attention of the nation as well as the skill of congressional debaters.
“The English legislature,” says Judge Hare, “is free to follow any course that will promote the welfare of the State, and the inquiry is not, ‘Has Parliament power to pass the Act?’ but, ‘Is it consistent with principle, and such as the circumstances demand?’ These are the material points, and if the public mind is satisfied as to them there is no further controversy. In the United States, on the other hand, the question primarily is one of power, and in the refined and subtle discussion which ensues, right is too often lost sight of or treated as if it were synonymous with might. It is taken for granted that what the Constitution permits it also approves, and that measures which are legal cannot be contrary to morals.”
The interpretation of the Constitution has at times become so momentous as to furnish a basis for the formation of political parties; and the existence of parties divided upon such questions has of course stimulated the interest with which points of legal interpretation have been watched and canvassed. Soon after the formation of the national government in 1789 two parties grew up, one advocating a strong central authority, the other championing the rights of the states. Of these parties the former naturally came to insist on a liberal, an expansive, perhaps a lax construction of the words of the Constitution, because the more wide is the meaning placed upon its grant of powers, so much the wider are those powers themselves. The latter party, on the other hand, was acting in protection both of the states and of the individual citizen against the central government, when it limited by a strict and narrow interpretation of the fundamental instrument the powers which that instrument conveyed. The distinction which began in those early days has never since vanished. There has always been a party professing itself disposed to favour the central government, and therefore a party of broad construction. There has always been a party claiming that it aimed at protecting the rights of the states, and therefore a party of strict construction. Some writers have gone so far as to deem these different views of interpretation to be the foundation of all the political parties that have divided America. This view, however, inverts the facts. It is not because men have differed in their reading of the Constitution that they have advocated or opposed an extension of federal powers; it is their attitude on this substantial issue that has determined their attitude on the verbal one. Moreover, the two great parties have several times changed sides on the very question of interpretation. The purchase of Louisiana and the Embargo acts were the work of the strict constructionists, while it was the loose constructionist party which potested against the latter measure, and which, at the Hartford Convention of 1814, advanced doctrines of state rights almost amounting to those subsequently asserted by South Carolina in 1832 and by the Secessionists of 1861. Parties in America, as in most countries, have followed their temporary interest; and if that interest happened to differ from some traditional party doctrine, they have explained the latter away. Whenever there has been a serious party conflict, it has been in reality a conflict over some living and practical issue, and only in form a debate upon canons of legal interpretation. What is remarkable, though natural enough in a country governed by a written instrument, is that every controversy has gotten involved with questions of constitutional construction. When it was proposed to exert some power of Congress, as for instance to charter a national bank, to grant money for internal improvements, to enact a protective tariff, the opponents of these schemes could plausibly argue, and therefore of course did argue, that they were unconstitutional. So any suggested interference with slavery in states or territories was immediately declared to violate the states’ rights which the Constitution guaranteed. Thus every serious question came to be fought as a constitutional question. But as regards most questions, and certainly as regards the great majority of the party combatants, men did not attack or defend a proposal because they held it legally unsound or sound on the true construction of the Constitution, but alleged it to be constitutionally wrong or right because they thought the welfare of the country, or at least their party interests, to be involved. Constitutional interpretation was a pretext rather than a cause, a matter of form rather than of substance.
The results were both good and evil. They were good in so far as they made both parties profess themselves defenders of the Constitution, zealous only that it should be interpreted aright; as they familiarized the people with its provisions, and made them vigilant critics of every legislative or executive act which could affect its working. They were evil in distracting public attention from real problems to the legal aspect of those problems, and in cultivating a habit of casuistry which threatened the integrity of the Constitution itself.
Since the Civil War there has been much less of this casuistry because there have been fewer occasions for it, the broad construction view of the Constitution having practically prevailed—prevailed so far that the Supreme Court now holds that the power of Congress to make paper money legal tender is incident to the sovereignty of the national government, and that a Democratic House of Representatives passes a bill giving a federal commission vast powers over all the railways which pass through more than one state. There is still a party inclined to strict construction, but the strictness which it upholds would have been deemed lax by the broad constructionists of the days before the Civil War. The interpretation which has thus stretched the Constitution to cover powers once undreamt of, may be deemed a dangerous resource. But it must be remembered that even the constitutions we call rigid must make their choice between being bent or being broken. The Americans have more than once bent their Constitution in order that they might not be forced to break it.
 Newman, Essay on Development, p. 39.
 See Chapter 24 ante.
 As the court dismissed upon another point in the case the proceedings against Mr. Secretary Madison, the question whether Marshall was right did not arise in a practical form.
 There was, however, nothing unconstitutional in the course which Jackson actually took in withdrawing the deposits from the United States Bank and in vetoing the bill for a recharter. It is still generally admitted that a president has the right in considering a measure coming to him from Congress to form his own judgment, not only as to its expediency but as to its conformability to the Constitution. Judge Cooley observes to me: “If Jackson sincerely believed that the Constitution had been violated in the first and second charter, he was certainly not bound, when a third was proposed, to surrender his opinion in obedience to precedent. The question of approving a new charter was political; and he was entirely within the line of duty in refusing it for any reasons which, to his own mind, seemed sufficient.”
 For example, the question whether an agreement carried out between a state and an individual by a legislative act of a state is a “contract” within the meaning of the prohibition against impairing the obligation of a contract, is a question of interpretation proper, for it turns on the determination of the meaning of the term “contract.” The question whether Congress had power to pass an act emancipating the slaves of persons aiding in a rebellion was a question of construction, because the case did not directly arise under any provision of the Constitution, and was apparently not contemplated by the framers thereof. It was a question which had to be solved by considering what the war powers contained in the Constitution might be taken to imply. The question whether the national government has power to issue treasury notes is also a question of construction, because, although this is a case which may possibly have been contemplated when the Constitution was enacted, it is to be determined by ascertaining whether the power “to borrow money” covers this particular method of borrowing. There is no ambiguity about the word “borrow”; the difficulty is to pronounce which out of various methods of borrowing, some of which probably were contemplated, can be properly deemed, on a review of the whole financial attributes and functions of the national government, to be included within the borrowing power.
As to the provision restraining states from passing laws impairing the obligation of a contract, see note at the end of this volume on the case of Dartmouth College v. Woodward.
 As the Constitution is deemed to proceed from the people who enacted it, not from the Convention who drafted it, it is regarded for the purposes of interpretation as being the work not of a group of lawyers but of the people themselves. For a useful summary of some of the general rules of constitutional interpretation, see Patterson’s Federal Restraints on State Action, pp. 215–17.
 For instance, several years ago a person summoned as a witness before a committee of the House of Representatives was imprisoned by order of the House for refusing to answer certain questions put to him. He sued the sergeant-at-arms for false imprisonment, and recovered damages, the Supreme Court holding that as the Constitution could not be shown to have conferred on either house of Congress any power to punish for contempt, that power (though frequently theretofore exercised) did not exist, and the order of the House therefore constituted no defence for the sergeant’s act (Kilbourn v. Thompson, 103 U.S., 168).
 For instance, Congress having power to declare war, has power to prosecute it by all means necessary for success, and to acquire territory either by conquest or treaty. Having power to borrow money, Congress may, if it thinks fit, issue treasury notes, and may make them legal tender.
 See Gibbons v. Ogden, 9 Wheat. 1 sqq., judgment of Marshall, C. J.
 “The powers of the government are limited, and its limits 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 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 consistent with the letter and spirit of the Constitution, are constitutional.” —Marshall, C. J., in M’Culloch v. Maryland (4 Wheat. 316). This is really a working-out of one of the points of Hamilton’s famous argument in favour of the constitutionality of a United States bank: “Every power vested in a government is in its nature sovereign, and includes by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution.” — Works (Lodge’s ed.), vol. iii, p. 181.
Judge Hare sums up the matter by saying, “Congress is sovereign as regards the objects and within the limits of the Constitution. It may use all proper and suitable means for carrying the powers conferred by the Constitution into effect. The means best suited at one time may be inadequate at another; hence the need for vesting a large discretion in Congress. . . . ‘Necessary and proper’ are therefore, as regards legislation, nearly if not quite synonymous, that being ‘necessary’ which is suited to the object and calculated to attain the end in view.” — American Constitutional Law, p. 107.
 See the philosophical remarks of Story, J., in Martin v. Hunter’s Lessee (1 Wheat. p. 304 sqq.)
 Stress was also laid on the fact that whereas the Articles of Confederation of 1781 contained (art. II) the expression, “Each State retains every power and jurisdiction and right not expressly delegated to the United States in Congress assembled,” the Constitution merely says (amend. X), “The powers not granted to the United States are reserved to the States respectively or to the people,” omitting the word “expressly.” See the text of the Articles in the Appendix to this volume.
 The case of Gibbons v. Ogden supplies an interesting illustration of the way in which this doctrine of implied powers works itself out. The state of New York had, in order to reward Fulton and Livingston for their services in introducing steamboats, passed a statute giving them an exclusive right of navigating the Hudson River with steamers. A case having arisen in which this statute was invoked, it was alleged that the statute was invalid, because inconsistent with an act passed by Congress. The question followed, Was Congress entitled to pass an act dealing with the navigation of the Hudson? And it was held that the power to regulate commerce granted to Congress by the Constitution implied a power to legislate for navigation on such rivers as the Hudson, and that Congress having exercised that power, the action of the states on the subject was necessarily excluded. By this decision a vast field of legislation was secured to Congress and closed to the states.
 See Judge Cooley’s History of Michigan, p. 353. The same eminent authority observes to me: “The President suspended the writ of habeas corpus. The courts held this action unconstitutional (it was subsequently confirmed by Congress), but he did not at once deem it safe to obey their judgment. Military commissioners, with the approval of the War Department and the President, condemned men to punishment for treason, but the courts released them, holding that the guaranties of liberty in the Constitution were as obligatory in war as in peace, and should be obeyed by all citizens, and all departments, and officers of government (Milligan’s case, 4 Wall. 1). The courts held closely to the Constitution, but as happens in every civil war, a great many wrongs were done in the exercise of the war power for which no redress, or none that was adequate, could possibly be had.” Inter arma silent leges must be always to some extent true, even under a Constitution like that of the United States.
 Such as the suspension of the writ of habeas corpus, the emancipation of the slaves of persons aiding in rebellion, the suspension of the statute of limitations, the practical extinction of state banks by increased taxation laid on them under the general taxing power.
 In that one case (Ogden v. Sanders) there was a bare majority against him, and professional opinion now approves the view which he took. When Marshall became chief justice only two decisions on constitutional law had been pronounced by the court. Between that time and his death fifty-one were given.
 Had the Supreme Court been in those days possessed by the same spirit of strictness and literality which the Judicial Committee of the British Privy Council has recently applied to the construction of the British North America Act of 1867 (the act which creates the constitution of the Canadian Federation), the United States Constitution would never have grown to be what it now is.
 So it disapproved strongly, in the Northern states, of the judgments delivered by the majority of the Supreme Court in the Dred Scott case.