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CHAPTER III.

THE DIVISION OF POWERS BETWEEN THE UNITED STATES AND ITS MEMBER "STATES.

§ 29. Federal Powers.

The United States Constitution serves a double purpose. It operates as an instrument to delimit the several spheres of federal and state authority, and to provide for the organization of the Federal Government. In this chapter we shall be concerned with only the first of these two subjects. That quaestio vexata of the original purpose of the Constitution, whether intended to serve as an agreement between sovereign compacting States, or as the fundamental instrument of government of a single sovereign people, it is fortunately no longer necessary to discuss. For the purpose of a treatise on the constitutional law of the United States as it exists to-day it is sufficient to describe the Constitution as a legal instrument distributing the totality of governmental powers between the federal and state governments, according to the general principle that the powers granted the Federal Government are specified, expressly or by implication, and that the remainder of the possible governmental 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."1

It will have been noticed that in speaking of the powers possessed by the General Government, the term "delegated" is used, whereas, in speaking of the powers possessed by the States, the word "reserved" is employed. This exhibits the fundamental principle governing the division of powers between the General Government and the States according to which the former possesses only those powers that are by the Constitution granted to it, whereas the States are entitled to all powers except those ex

1 Tenth Amendment. As to certain of the powers granted to the Federal Government, as will presently appear, the fact that they may be exercised by that government does not, until they are so exercised, deprive the States of the authority to exercise them.

pressly or by implication denied to them by the Constitution. Thus the General Government is commonly spoken of as one of enumerated and the State governments as governments of unenumerated powers.

This distinction would in all probability have been recognized and adopted by the Supreme Court as a logical corollary from the general character of the Constitution, had there been no express direction in that instrument itself to such effect. Out of superabundant caution, however, the Tenth Amendment was adopted. The phrase "or to the people" covers these powers which, though constitutionally exercisable by the States, for aught the federal Constitution has to say, are by their own state constitutions denied to their respective governments. Thus the federal and the state constitutions differ in this important respect that the grants of the former operate to endow the General Government with powers that it would not otherwise possess, whereas the provisions of the latter in the main operate to deprive the governments which they create of powers they otherwise would

possess.

Except when expressly limited,— as, for instance, where the power which is given to levy taxes is restricted by the provisions that "all duties, imposts, and excises shall be uniform throughout the United States," that "no tax or duty shall be laid on articles exported from any State," and that "no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken," a power granted to Federal Government is construed to be absolute in character.

§ 30. Express and Implied Powers.

Though the Federal Government is one of enumerated powers, its powers are not described in detail, and from the very beginning it has been construed to possess not simply those powers that are specifically or expressly given it, but also those necessary and proper for the effective exercise of such express powers. After enumerating the various powers that Congress is to possess, the Constitution declares" "[The Congress shall have

2 Art. I, Sec. 8.

power] 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 officer thereof." Furthermore it will be noticed that in the Tenth Amendment, above quoted, the powers reserved to the States or to the people are not those expressly delegated to the United States, but simply those not delegated. This is significant in view of the fact that in the corresponding section in the Articles of Confederation the word "expressly" is carefully inserted.3

§ 31. Federal Powers to be Liberally Construed.

The Constitution is in terms and general character a grant of powers a grant from the people of the several States to the National Government, and, strictly speaking, as in all grants of power, the authority that may be exercised thereunder is to be limited to that specifically granted or impliedly given. But whereas, in general, grants of authority are strictly construed as against the grantee and in favor of the reserved rights of the grantor, in the case of the federal Constitution this principle has, it is seen, not been applied. The justification for this has been deduced from the general nature of the Constitution as an instrument of government, and from the character of the end which was sought to be obtained by its establishment. The Federal Governments exists not for the benefit of those who exercise its powers, but to subserve the national interests, political, industrial, and social, of the people who framed and adopted it. While, therefore, it is, in essential character, a grant of powers, and is to be construed as such, its terms are to be interpreted in the light of the fact that the people in adopting it desired the establishment and maintenance of an effective National Government, and therefore one endowed with powers commensurate with that end.*

3 Article II. "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled."

4" In construing a grant or surrender of powers by the people to a monarch, for his own benefit or use, it is not only natural, but just, to presume, as in

In the case of Gibbons v. Ogden Marshall took pains to assert that there is no good reason for holding that either the express or the implied powers of the National Government are to be strictly construed. His language is as follows: "This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means of carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not therefore think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construcall other cases of grants, that the parties had not in view any large sense of the terms, because the objects were a derogation presumably from their rights and interests. But in construing a constitution of government, framed by the people for their own benefit and protection, for the preservation of their rights, and property, and liberty; where the delegated powers are not, and cannot be used for the benefit of their rulers, who are but their temporary servants and agents; but are intended solely for the benefit of the people, no such presumption of an intention to use the words in the most restricted sense necessarily arises. The powers given by the people to the General Government are not necessarily carved out of the powers already confided to the state governments. They may be such as they originally reserved to themselves. And, if they are not, the authority of the people in their sovereign capacity, to withdraw power from their state functionaries, and to confide it to the functionaries of the General Government, cannot be doubted or denied. If they withdraw the power from the state functionaries, it must be presumed to be, because they deem it more useful for themselves, more for the common benefit and common protec tion, than to leave it where it has been hitherto deposited. . . . The state governments have no right to assume that the power is more safe or more useful with them, than with the General Government; that they have a higher capacity and a more honest desire to preserve the rights and liberties of the people than the General Government." Story Commentaries, §§ 413-416. 59 Wh. 1; 6 L. ed. 23.

tion which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government and render it unequal to the objects for which it was declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas 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. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. 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."

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