The use of the phrase "We, the People of the United States as indicating the ordainers and establishers of the Union, is, however, of significance in determining the nature of the Union that was intended to be created when taken in connection with the provision of Article VII that the Constitution is to be ratified, not by the state legislatures, but in conventions, for it indicates that the Union was one that the state legislatures were not competent to create; that, in other words, it was to be not a mere league or confederacy, such as the existing state governments might enter into, but a fundamental Union resulting in the creation of a new National State which, according to the political philosophy of that date, only the people acting in their original sovereign capacity were able to create.

§ 21. "Constitution."

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The fact that the instrument of 1789 is termed a Constitu tion" has by some been taken to indicate that a National State, and not a confederacy of States was intended to be created. Thus Webster in his reply to Hayne said: "They [the people of the United States] undertook to form a general government which should stand on a new basis; not a confederacy, not a league, not a compact between States, but a Constitution." And in his reply to Calhoun, he declared: "Sir, I must say to the honorable gentleman that, in our American political grammar, Constitution is a noun substantive; it imparts a distinct and clear idea of itself; and it is not to be turned into a poor, ambiguous, senseless, unmeaning adjective, for the purpose of accommodating any new set of political notions. By the Constitution we mean, not a constitutional compact,' but simply and directly the Constitution, the fundamental law; and if there be one word in the language which the people of the it is that word." And later he says: pact? Certainly not. Does it call itself or subsisting treaty between the States? declares itself a Constitution."

United States understand, "Does it call itself a coma league, a confederacy, Certainly not. But it

By members of the school of Webster weight is also given to

the fact that it is declared that the people of the United States UNdi? "do ordain and establish" and not that they "do contract" or "enter into a treaty."

The writer of this treatise is not disposed to ascribe much value to this argument of Webster based upon the use of the word "Constitution." At most it can only have a corroborating value. In the first place, it is by no means certain that the term had, in 1789, the definite technical meaning which Webster ascribes to it. And, in the second place, and more significantly, the nature of the Union provided for by the Constitution is properly to be determined by the distribution of powers actually provided for by it, and not by the title that may have been given to it.

The description of the new federation in the Preamble as "a more perfect Union," has occasionally been referred to as an argument of the complete sovereignty of the United States. For example, in Texas v. White,41 Chief Justice Chase, after referring to the fact that the Articles of Confederation had provided for a perpetual Union, says: "And when these articles were found to be inadequate to the exigencies of the country, the Constitution was ordained to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be more indissoluble if a perpetual Union, made more perfect, is not?"

§ 22. "Common Defense and General Welfare."

The declaration in the Preamble that the new Union is established for the common defense and general welfare, and the grant by Article I, Section 8, of the Constitution to Congress of the power "to levy and collect taxes, duties, imports, and excises, to pay the debts and provide for the common defense and general welfare of the United States," has at times been argued to be equivalent to a grant to the General Government of all powers, the exercise of which may in any way contribute to the effectuation of either of these ends.

41 7 Wall. 700; 19 L. ed. 227.

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Especially by those who desire to magnify the powers of the Federal Government it has been argued that instead of construing Section 8 of Article I as simply the grant of an authority to raise revenue in order to pay the debts and provide for the common defense and general welfare of the United States, it should be interpreted as conferring upon Congress two distinct powers; namely: (1) the power of taxation; and (2) the power to provide for the common defense and general welfare. And, under the latter of these two grants, it has been argued that the Congress has the authority to exercise any power that it may think necessary or expedient for advancing the common defense or the general welfare of the United States. It scarcely needs be said that this interpretation has not been accepted by the courts. Were this view to be accepted the government of the United States would at once cease to be one of the enumerated powers, for it would then be possible to justify the exercise of any authority whatsoever upon the ground that the general welfare would

thereby be advanced. NOT NECESSANTY

$ 23. The Constitution is to be Construed as a Whole.

Though the terms of the Constitution may not be varied, or its grants of authority limited by abstract doctrines of private rights and of political justice and expediency, the words of each clause are to be interpreted in the light of the other provisions of the Constitution. The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and indeed imperative, to construe one part in the light of the provisions of all the other parts.42

This principle has been of dominant force in the construction of the Constitution.

The principle that the Constitution is to be interpreted in the light of the general purpose for the attainment of which it was

42" In construing the Constitution of the United States we are, in the first instance, to consider what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts." Story, Commentaries, § 405.

adopted, coupled with the fact that many of its terms are general in character, has made possible and legitimate two schools of constructionists-the Loose or Nationalistic school, and the Strict or States' Rights school-each dependent upon a belief held as to the general end which the framers of the Constitution had in mind when that instrument was drafted. The Strict or States' Rights constructionist has not always been one who woulddeny sovereignty or efficiency to the National Government. Thus, Taney, a leader of the strict constructionists, never for a moment doubted the sovereignty of the General Government, or, as he showed in his decision in Ableman v. Booth, the supremacy of its laws and of its agents over the laws and agents of the States. He did believe, however, that the sovereign national laws should be kept within as limited a space as possible. This he showed from the first year of his chief-justiceship.

From the general nature and intent of the Constitution have been deduced, not to mention other doctrines, the denial of the right of secession, the power of the courts to hold void state or federal laws contrary to the Constitution, the jurisdiction of the federal courts to entertain appeals from the highest state courts in cases in which a federal right, privilege, or immunity has been set up and denied, the immunity of federal governmental agencies from interference on the part of the States by taxation or other- wise, the immunity of state agencies from federal taxation, the exclusive federal jurisdiction in matters of naturalization, and the liberal construction of "implied" powers generally. X

§ 24. So-called "Natural" or "Unwritten Constitutional" Laws Have no Constructive Force.

The so-called "natural" or unwritten laws defining the natural, inalienable, inherent rights of the citizen, which, it is sometimes claimed, spring from the very nature of free government, have no force either to restrict or to extend the written provisions of the Constitution. The utmost that can be said for them is that where the language of the Constitution admits of doubt, it is to be presumed that authority is not given for the violation of acknowledged principles of justice and liberty.

In not a few instances, especially during early years, the binding force of natural laws is declared, but a careful examination of these cases shows that, practically without exception, the doctrine was used not as the real ratio decidendi, but to support, upon grounds of justice and expediency, a decision founded upon the written constitutional law.

Prior to the separation from England, the colonial courts were naturally inclined to minimize the power of the English Parliament, and, therefore, to uphold Coke's dictum in the famous Bonham case that an act of Parliament contrary to natural rights and justice is void. And in the political controversies which preceded the Revolution the doctrine of natural rights was relied upon. It would appear, however, that, though often asserted by the courts, no legislative act was held void solely because it was conceived to exceed the proper limits of all legislative power."

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When American independence came, it was to be expected that the Americans would apply the doctrine of natural rights and justice in limitation of the law-making powers of their own legislatures, and thus, as said, we do find the principle not infrequently stated, during the early years of the Constitution. Even Chief Justice Marshall lent it, upon occasion, a qualified sanction. "It may well be doubted," he observes in Fletcher v. Peck whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where they are to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the [state] legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection.” 47

43 For instance by Otis in his arguments against writs of assistance. 44 As to whether the South Carolina case of Bowman v. Middleton, 1 Bay, 252, was such a case, see Thayer, Cases on Const. Law, I, 53, note 2. 45 Cf. Stimson, Handbook of American Labor Law, p. 4, note. 46 6 Cr. 87; 3 L. ed. 162.

47 One of the clearest statements of the doctrine, though given obiter, is that of Justice Chase in Calder v. Bull (3 Dall. 386; 1 L. ed. 648). He says: "I cannot subscribe to the omnipotence of a state legislature, or that it should