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hibited 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 generally 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." I
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 proposed to prevent the enactment of a law which was obnoxious to them, that the right was denied to the United States Government to exercise even those rights
Cooley, Const. Lim., 10, II. 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, II Pet., 257 ; Gilman v. Philadelphia, 3 Wall., 713; and numerous judicial utterances of the same import in the State reports.
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 this 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 granted, or given by necessary implication." !
Although the United States Supreme Court has never, in its numerous decisions on constitutional construction, departed from the doctrine that the United States Government may exercise powers which are implied from the express grant of powers, it is worthy of note that for nineteen years one justice—Mr. Justice Daniel of Virginia—consistently dissented from every judgment of the court which was based upon the recognition of any implied
* Story, J., in Martin v. Hunter's Lessee, 1 Wheat., 304, 326 ; Marshall, Ch.-J., in Gibbons v. Ogden, 9 Wheat., I, 187, etc. See preceding note.
power. His persistent claim was that “the Constitution itself is nothing more than an enumeration of general abstract rules, promulged by the several States for the guidance or control of their creature or agent, the federal government, which for their exclusive benefit they were about to call into being. Apart from these abstract rules, the Federal Government can have no functions and no existence.'
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.' But at the same time it produced the very effect, 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
*Opinion of Justice Daniel in Marshall v. B. & O. R. R. Co., 16 How., 346.
3." 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 that 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, $ 1,292. See Chapter VII. on The Suspension of the Writ of Habeas Corpus during the Civil War.
has often been presented with the spectacle of United States, as well as State, judges and legisla. tors 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 powers. 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 ratifying that purchase. In speaking of the objections which 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 defence and general welfare.” 1
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. For this reason, the assumption of this 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 the way to the Supreme Court of the United States. In Hepburn v. Griswold,' 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.
Story on Constitution, § 1,286. I do not wish it to be inferred that I am unaware of the opinion of Chief Justice Marshall, that the power to purchase foreign territory is to be implied from the power to make treaties with foreign nations. See Am. Ins. Co. v. Canter, 1 Pet., 511, 542. But the claim is made that this is one of the cases in which the doctrine of implied powers has been improperly applied.
38 Wall., 603,