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jurist. The difficulty in many of the cases lies in the accepted interpretation of the tenth amend

ment.

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 does not bring out the true grammatical meaning; that the tenth amendment does not apply to such cases, it must be conceded that the United States may exercise these and other like powers, although they are not expressly or impliedly granted.'

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. The intentions of the framers of the

1 It is claimed, however, by the author elsewhere, that the power to make treasury notes legal tender is prohibited by the Constitution to both the United States and the States.-See Tiedeman's "Limitations of Police Power," § 90.

Constitution are not at all binding upon the present generation, except so far as they have been embodied in the written word.'

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 purchase 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 forbids this 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 the amendment) in the alternative "to the States respectively or to the people," evidently involves a consideration of the possibility that the

1 "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."-Marshall, C.-J., in Gibbons v. Ogden, 9 Wheat., I.

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State constitutions may prohibit to the States the exercise of a power which is reserved to them under the Federal Constitution, 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 to the United States by the Constitution, 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, which is prohibited to the States, but which 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 Constitu tion 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.

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There need not be any express or implied grant of such powers to the United States.

It is not claimed or implied that the interpretation of the tenth amendment here advocated conforms more nearly to the intentions of the framers of the Constitution than that which has been generally accepted by writers upon the constitutional law of the country. Indeed, the revelation of the presence in the early history of the United States, of forces of disintegration in the politics of the country, equal or almost equal to the forces of consolidation, would incline one to suppose that the intentions of the law-makers in the formation of the Constitution were properly reflected in that construction of constitutional limitations which would most effectively 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 equal truth and force that the Federal Constitution was wrested from an unwilling people. It would therefore be impossible to show that this construction of the tenth amendment was in conformity with the intentions and expectations of those whose votes enacted it. It is freely admitted that the prevailing interpretation is without doubt what the framers of the amendment intended.

But the intentions of our ancestors cannot be permitted to control the present activity of the government, where they have not been embodied in the habits of thought of the people-we have seen that the interpretation has been practically ignored in the two illustrative cases-or in the written word of the Constitution. Where the written word is equally susceptible of two constructions, one of which reflects more accurately the intentions of the power that speaks through the word, that construction. must prevail. Now the living power, whose will is given expression in the written word, is not the men who framed or voted for the written word, but the present possessors of political power. The present popular will must indicate which shade of meaning must be given to the written word. And that interpretation becomes the only possible one, when it may be shown by the experience of a century, that the alternative construction, which reflects the intentions of the original enactors of the written word, is pernicious to the stability of the government, and in violation of the soundest principles of political science.

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