James Madison: "No axiom is more clearly established in law or in reason, than that wherever the end is required, the means are authorized. Whenever a general power to do a thing is given, every particular power necessary for doing it is included."

Alexander Hamilton: "It may be affirmed with perfect confidence that the Constitutional operation of the government would be precisely the same if these clauses [the one quoted above, and the second of Article VI.] were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constructing a federal government, and vesting it with certain powers."

"2

Thomas M. Cooley: "The clause is merely a declaration for the removal of all uncertainty that the means for carrying into execution those otherwise granted are included in the grant. . . Those who made the Constitution conferred upon the government of their creation sovereign powers. But there cannot be such a thing as a sovereign without a choice of the means by which to exercise sovereign powers. What may be suitable and proper means at one period, may be wholly unsuitable and ineffectual at another period."3

378. THIS THEORY CARRIED INTO PRACTICE.-From the first, Congress has legislated on the theory of implied powers. It has built light-houses, improved rivers and harbors, laid embargoes on commerce, established banks, given the people of cities free mail-delivery, provided money-order facilities, created mints and assay-offices, inspected steam boats, established a National board of health, constructed roads, promoted education, these and a thousand other things that are not mentioned in the Constitution.

379. THE TWO SCHOOLS OF CONSTRUCTION.-The powers of the National Government are the great constitutional question of the National history. It has called into existence two

1 The Federalist, No. 44.

2 Ibid No. 33.

The Principles of Constitutional Law, 92.

schools of interpretation; Strict-construction and Loose-construction. The founders of these schools were Thomas Jefferson and Alexander Hamilton. The first school clung to the enumerated powers; the second emphasized the implied powers. The first gave prominence to the States; the second sought to give to the Nation strength and dignity. The first laid stress on Amendment X.; the second on Clauses one and eighteen of Section 8. Clause one is sometimes called the "elastic clause," and the "general welfare clause." It is the great bulwark of the party founded by Hamilton.

379. THE LIMITATIONS OF THE TWO SCHOOLS.-It must not be supposed that Strict-constructionists, as a body, have denied that there are implied powers; or that Loose-constructionists, as a body, have denied that the States have rights. The question is a relative one, viz.: How far shall the doctrines of implied powers and of State rights be pushed? Each school has tended to exaggerate its chosen principle. The extremists of the one school have belittled the Nation; the extremists of the other have belittled the States. Either theory pushed to an extreme destroys the Constitution. Strict-construction thus pressed makes the Union a rope of sand; Loose-constrution makes the will of Congress the Supreme law of the land.

Statesmen and parties have sometimes shifted their principles of construction owing to political conditions. Strict-constructionists in possession of the government have strongly emphasized implied powers; Loose-constructionists in opposition have emphasized State rights as strongly. Still, the dividing line is distinctly traced in history.

381. QUESTIONS INVOLVING CONSTRUCTION.-A few of the many questions involving methods of construction may be particularized.

(1) THE UNITED STATES BANKS AND THE NATIONAL BANK Mr. Jefferson opposed the first United States Bank, on the ground

that the Constitution did not authorize such an institution. Hamilton defended it on the ground that it was necessary to create and maintain the public credit, to carry on the fiscal business of the government, and to promote the general welfare. In 1817 the party that Jefferson had founded charted the second Bank for substantially the same reasons that Hamilton had given in 1791. The Supreme Court in 1820 declared the Bank constitutional; but President Jackson, in 1832, vetoed a bill rechartering it, because he said it was unconstitutional. When the present system of National Banks was created in 1863, the Democractic party stood on Strict-construction ground, the Republican on Loose-construction ground. The Supreme Court having decided that Congress has jurisdiction over the subject, constitutional objections have practically ceased.

(2) INTERNAL IMPROVEMENTS.-In 1806 Congress made its first appropriation for the Cumberland Road, connecting the Sea-board with the Mississippi Valley; and this was the beginning of public improvements made at the expense of the National government. The question of constitutional power was raised; and from 1820 to 1860 internal improvements were a party question. Presidents of the Strict-construction school sometimes vetoed bills for such improvements; the Whig and Republican parties have always favored a liberal policy. At present it can hardly be called a constitutional question; the annual River and Harbor Bill is not now a party measure.

The constitutional argument in favor of these appropriations has assumed such forms as these: They promote the general welfare; they are necessary to carry out the expressly delegated powers; they contribute to the common defence; and Congress may establish post-roads and provide for the transportation of troops and munitions of war.

(3) PROTECTIVE TARIFF.-In organizing the revenue system of the government, Alexander Hamilton, the first Secretary of the Treasury, recommended that customs-duties be so levied as to afford incidental protection to American manufactures. This recommendation was embodied in laws, and from that time the protective principle has commonly been more or less recognized in revenue legislation. It has been denied that the Constitution gives Congress power to levy duties and other taxes save for

revenue purposes; to which it is replied that the general-welfare clause gives all the power that is needed.

These are but a few of the many questions that could be mentioned under this head. It has been denied that the census, as now organized, is constitutional, since the Constitution merely mentions an enumeration of the people. The Bureau of Education also has encountered constitutional objections.

386. THE MOVEMENT OF POLITICAL THOUGHT. This brief review shows that certain questions once discussed in the constitutional forum have been practically removed from that forum, and become simply questions of political expediency. It shows, also, that Loose-construction has made steady progress since the foundation of the government. In fact, the Constitution of 1891 is, in practice, quite a different instrument from the Constitution of 1791. Propositions that would then have been opposed as invasions of State rights, are now accepted, even by Strict-constructionists, as a matter of course. Among the causes of this movement of political thought, these may be mentioned:

Territorial growth and the formation of new States that were, in great degree, the creations of the Federal Government. When a Loose-construction party has obtained possession of the government, it has carried its ideas into practice, and the Strict-construction party succeeding it, finding that those views have become familiar to the people, have accepted some of them. The exercise of the unlimited war power, especially in the Civil War, has tended enormously to centralize power. Then the non-political decisions of the National Courts have uniformly tended strongly to Loose-construction principles. And finally, social, industrial, and commercial changes have compelled Congress to assume new powers. The Inter-State Commerce Law is wholly an outcome of such changes.

CHAPTER XI

383.

THE LIMITATIONS OF THE UNION.

ARTICLE I.

REASONS FOR SUCH LIMITATIONS.-The government of the United States is one of limited or delegated powers. The first limitation, and the greatest of all, is the States. Amendment IX. is in these words: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Amendment X. is in these words: "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," Implied powers are matters of opinion or judgment, in the very nature of the case. Hence Congress, in the use of its discretion, might exercise powers that the people did not intend to delegate. Public discussion and the elections would correct such abuses of power in ordinary cases; but there were some points so important, in the judgment of the Federal Convention, as to demand safe-guards in the form of positive prohibitions. Some of these powers are forbidden because they were deemed inexpedient or impolitic; others, because their exercise would lead to injustice and oppression.

Section 9, Clause 1.-The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.