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life, liberty and property. All the valuable and interesting relations of the social state spring from them. They give validity to the marriage tie; they prescribe the limits of parental authority; they enforce filial duty and obedience; they limit the power of the master, and exact the proper duties of the servant. Their power pervades all the ranks of society, restraining the strong, protecting the weak, succoring the poor, and lifting up the fallen and helpless. They secure to all persons an impartial administration of public justice. In all the daily business of life, we act under the protection and guidance of the State governments. They regulate and secure our rights of property; they enforce our contracts and preside over the peace and safety of our firesides. There is nothing dear to our feelings or valuable in our social condition, for which we are not indebted to their protecting and benignant action. Take away the federal government altogether, and still we are free, our rights are still protected, our business is still regulated, and we still enjoy all the other advantages and blessings of established and well organized government. But if you take away the State governments, what have you left? A federal government, which can neither regulate your industry, secure your property, nor protect your person! Surely there can be no just reason for stealing, by liberal constructions and implications, from these beneficent State governments, any portion of their power, in order to confer it on another government, which, from its very organization, cannot possibly exert it for equally useful purposes. A strict construction of the Constitution will give to the federal government all the power which it can beneficially exert, all that it is necessary for it to possess, and all that its framers ever designed to confer on it.
To these views of the subject we may add, that there is a natural and necessary tendency in the federal government to encroach on the rights and powers of the States. As the representative of all the States, it affords, in its organization, an opportunity for those combinations by which a majority of the States may oppress the minority, against the spirit or even the letter of the Constitution. There is no *danger that the federal government will ever be too weak. Its
[ *98] means of aggrandizing itself are so numerous, and its tempta
tions to do so are so strong, that there is not the least necessity to imply any new power in its favor. The States, on the contrary, have no motive to encroach on the federal government, and no power to do so, even if they desired it. In order, therefore, to preserve the just balance between them, we should incline, in every doubtful case, in favor of the States; confident that the federal government has always the inclination, and always the means, to maintain itself in all its just powers.
The Constitution itself suggests that it should be strictly and not liberally construed. The tenth amendment provides, that “ the powers not delegated to the United States, nor prohibited to the States, by the Constitution, are reserved to the States or the people.” There was a corresponding provision in the articles of confederation, which doubtless suggested this amendment. It was considered necessary, in order to prevent that latitude of construction which was contended for by one of the great political parties of the country, and much dreaded and strenuously opposed by the other. In the articles of confederation all “ rights, jurisdictions and powers” are reserved, except only such as are expressly delegated; but in the Constitution, the word “expressly” is omitted. Our author infers from this fact, that it was the intention of the framers of the tenth amendment to leave “the question, whether the particular power which is the subject of contest has been delegated to one government or prohibited to the other, to depend upon a fair construction of the whole instrument;' doubtless intending by the word “fair,” a construction as liberal as would be applied to any other frame of government. This argument is much relied on, and is certainly not without plausibility, but it loses all its force, if the omission can be otherwise satisfactorily accounted for. The Constitution provides that congress shall have power to pass all laws which shall be necessary and proper for carrying into effect the various powers which it grants. If this clause confers no additional faculty of any sort, it is wholly useless and out of place; the fact that it is found in the Constitution is sufficient proof that some effect was intended to be given to it. It was contemplated that, in executing the powers expressly granted, it might be necessary to exert some power not enumerated, and as to which some doubt might, for that reason, be entertained.
For example, the power to provide a navy is not, in itself, the power to build a dry dock; but, as dry docks are necessary and proper means for providing a navy, congress shall have power to authorize the construction of them. But if *the word “expressly” had been used in the tenth amend. [ *99 ] ment, it would have created a very rational and strong doubt of this. There would have been, at least, an apparent repugnance between the two provisions of the Constitution; not a real one, I admit, but still sufficiently probable to give rise to embarrassing doubts and disputes. Hence the necessity of omitting the word “ expressly,” in the tenth amendment. It left free from doubt and unaffected the power of congress to provide the necessary and proper means of executing the granted powers, while it denied to the federal government every power which was not granted. The same result was doubtless expected from this amendment of the Constitution, which was expected from the corresponding provision in the articles of confederation; and the difference in the terms employed is but the necessary consequence of the difference in other provisions of the two systems.
Strictly speaking, then, the Constitution allows no implication in favor of the federal government, in any case whatever. Every power which it can properly exert is a granted power. All these are enumerated in the Constitution, and nothing can be constitutionally done, beyond that enumeration, unless it be done as a means of executing some one of the enumerated powers. These means are granted, not implied; they are given as the necessary incidents of the power itself, or, more properly speaking, as component parts of it, because the power would be imperfect, nugatory and useless, without them. It is true, that in regard to these incidental powers, some discretion must, of necessity, be left with the government. But there is at the same time, a peculiar necessity that a strict construction should be applied to them; because that is the precise point at which the government is most apt to encroach. Without some strict, definite and fixed rules upon the subject, it would be left under no restraint, except what is imposed by its own wisdom, integrity and good faith. In proportion as a power is liable to be abused, should we increase and strengthen the checks upon it. And this brings us to the enquiry, what are these incidental
powers, and by what rules are they to be ascertained and defined ?
The only source from which these incidental powers are derived is that clause of the Constitution which confers on congress the power “to make all laws which are 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." The true character of this clause cannot be better given than in the
words of the author himself: “It neither *enlarges [*100]
any power specifically granted, nor is it a grant of any new power to congress. But it is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.' His general reasoning upon the subject is very lucid, and, to a certain extent, correct and convincing. He contends that the word “necessary" is not to be taken in its restricted sense, as importing absolute and indispensable necessity, but is to be understood in the sense of “convenient," " useful,” “requisite;" as being such that, without them, “ the grant would be nugatory.” The dangerous latitude implied by this construction, he thinks sufficiently restrained by the additional word “proper,” which implies that the means shall be " constitutional and bona fide appropriate to the end.” In all this he is undoubtedly correct; but the conclusion which he draws from it, cannot be so readily admitted. “If,” says he, “there be any general principle which is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, it is that every power vested in the 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 end of such power, unless they are excepted in the Constitution, or are immoral, or are contrary to the essential objects of political society.” This is by no means a legitimate conclusion from his own fair and forcible reasoning. The doctrine here is, in effect, that the federal government is absolutely unrestricted in the selection and use of the means of executing its own powers, except only so far as those means are excepted in the Constitu
tion. Whether or not they are requisite," "fairly applicable to the attainment of the end of such power,” “immoral or contrary to the essential objects of political society,” all these are questions which the government alone can decide, and, of course, as their own judgment and discretion are their only rule, they are under no sort of limitation or control in these respects. The standards of political morality, of public convenience and necessity, and of conformity to the essential objects of society, are quite too fluctuating and indeterminate to be relied on, by a free people, as checks upon the power of their rulers. The only real restriction, then, which the author proposes in the above passage, is that which may be found in the fact, that the proposed means are “excepted” in the Constitution; and this is directly contrary to the letter and spirit of that instrument. The federal government possesses no power which is not “delegated ; " " the powers not delegated to the United States by the Constitution, nor prohibited by *it to the States, are reserved to the States respectively,
[*101] or to the people.” The author's idea is, that every thing is granted which is not excepted; whereas, the language of the tenth amendment is express, that every thing is excepted which is not granted. If the word “excepted” is to be understood in this sense, the author's idea is correct; but this does not accord with the general scope of his opinions and reasoning. He approaches much nearer to the true rule in the following passage. “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 the end, and which are not prohibited, but are consistent with the letter and spirit of the instrument, are constitutional.” The words in italics, are all important in the matter, and give to the passage a meaning wholly different from that of the passage first quoted.
The author's error is equally great, and far more dangerous, in supposing that the means of executing its powers are conferred on the government. The general proposition is true, as he has stated it; but it is not true in the application which he has made of it to our government. He regards the tenth amendment as altogether unnecessary, and tells us, in express terms, that the powers of the government would be exactly the