building up of American constitutional law, have been free from error in their construction of the tenth amendment to the Federal constitution, the adoption of that amendment was an attempt to do this impossible thing; and the attempt has resulted in repeated violations of the constitution, as construed by them, by the assumption by Congress of powers, which were not expressly delegated nor fairly implied. The Louisiana purchase and the Legal Tender Cases, already referred to, furnish sufficient illustration of the truth of the statement. Cases of the same character will surely arise from time to time, and each repetition will diminish the popular reverence for the written constitution; an evil which every earnest jurist would like to prevent. The difficulty lies in the interpretation and construction of the tenth amendment.

According to the prevailing interpretation of that amendment, in order that the United States may by treaty make a purchase of foreign territory, or declare by act of Congress that the treasury notes shall be legal tender in payment of all public and private debts, the power must be granted by the constitution. It is clear that the State governments cannot exercise these powers, for the exercise of them is expressly prohibited to the States. But if it can be shown that this interpretation of the tenth amendment is erroneous, unless the common law maxim, communis error facit jus is recognized as binding in this case,it must be conceded that the United States may exercise these and other like powers, although they are not expressly or impliedly granted.1 There is no reason why the real meaning of that amendment should not be given effect, in construing the constitutionality of such acts. For no rule

1 It must not be understood from what is said that the writer recognizes in the national government the power to make its treasury notes legal tender. On the contrary, the power is denied to both State and Federal government on the ground that the Federal constitution expressly prohibits to both the exercise of the power. See ante, § 90.

of construction is binding upon the courts and other departments of the government, which does not rest for its authority upon some provision of the written constitution. The tenth amendment reads as follows: "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." It is clear that, if a given power is not prohibited to the States, the general government cannot exercise it, unless there is an express delegation of the power. The amendment declares that such powers are reserved to the States or to the people. But if a given power is prohibited to the States, but not delegated to the United States (the right to make purchase of foreign territory, for example), can it be said that under this amendment the exercise of this power is reserved to the States? The very prohibition to the States in the Federal constitution forbids such a construction. It may be claimed that in such a case the power would be reserved to the people." But that claim cannot be sustained. The reservation of the powers (referred to in this amendment), in the alternative, "to the States respectively or to the people," evidently involves a consideration of the possibility that the State constitutions may prohibit to the States the exercise of the power that is reserved, and in that case the power would be reserved to the people. What powers are reserved to the States respectively, or to the people?" The answer is, those powers which are not (neither) delegated by the constitution to the United States, nor prohibited by it to the States." These

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1 "As men whose intentions require no concealment generally employ the words which most directly and aptly express the idea 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. * 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." Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1.

two clauses, which contain the exceptions to the operation of the amendment, are not in the alternative. In order that it may be claimed under this amendment that a power is "reserved to the States respectively or to the people," it must avoid both exceptions, i. e., it must be a power which is neither delegated to the United States, nor prohibited to the States. It cannot be successfully claimed that a power is reserved under this provision, which is prohibited by the Federal constitution to the States, for the reason that it is not delegated to the United States. The conclusion, therefore, is that the United States government is one of enumerated powers, so far that it cannot exercise any power which is not prohibited by the constitution to the States, unless it is expressely or impliedly delegated to the United States. But those powers, which are prohibited to the States, and which fall legitimately within the scope of governmental authority, may be exercised by the United States, unless they are also prohibited to the United States. There need not be any express or implied grant of such powers to the national government.

It is not pretended or claimed that the construction of the tenth amendment here advocated conforms more nearly to the intentions of the framers of the constitution than that which has generally been accepted by writers upon the constitutional law of the country. Indeed, the early history of the United States reveals forces of disintegration in the politics of that day, equal or almost equal to the forces of consolidation, which would incline one to suppose that the intentions of the law-makers in the formation of the constitution were embodied in that construction of constitutional provisions which would most effectually hamper and curtail the powers of the national government. The great struggle of the wise men of those days was to secure for the Federal government the delegation of sufficient power to establish an independent government, and it may be said with truth that the Federal constitution was wrested from an unwilling

people. It would, therefore, be impossible to show that the construction of the tenth amendment here advocated was in conformity with the intentions and expectations of those whore votes enacted the amendment. It is freely admitted that the prevailing construction is without doubt what the framers of the amendment intended. But the intentions of our ancestors can not be permitted to control the present activity of the government, where they have not been embodied in the written word of the constitution. Where the written word is equally susceptible of two constructions, one of which reflects more accurately the intention of the writer, the preference is given to that construction. But when this construction is discovered by the practical experience of a century to be pernicious to the stability of the government and in violation of the soundest principles of constitutional law; when the alternative construction is grammatically the only possible one, and relieves the constitutional law of the country of a serious embarrassment, it is but reasonable that the latter construction should be adopted, and its adoption would not violate any known rule of constitutional construction.

§201. Police power generally resides in the States. — But this discussion concerning the true construction of the tenth amendment of the United States constitution only affects the location of those phases of police power, which are denied by the constitution to the States, and which are neither granted nor prohibited to the United States, as in the case of making anything else besides gold and silver legal tender in the payment of private and public debts, or in the purchase of foreign territory, and the like; and the question in such cases is not, whether the power to do these things resides in the Federal or State government, but whether the power can be exercised at all. In all ordinary cases of police powers, the meaning and legal effect of the tenth amendment is clear, viz.: that unless the exercise of

a particular police power is granted by the United States government, expressly or by necessary implication, the power resides in the State government, and may be exercised by it, unless the State constitution prohibits its exercise. It may, therefore, be stated, as a general proposition that with the few exceptions, which are mentioned in the succeeding sections, the police power in the United States is located in the States. The State is intrusted with the duty of enacting and maintaining all those internal regulations which are necessary for the preservation and the prevention of injury to the rights of others. The United States government cannot exercise this power, except in those cases in which the power of regulation is granted to the general government, expressly or by necessary implication. For example, it was held unconstitutional for Congress to declare it to be a misdemeanor for any one to mix naptha and illuminating oils, and offer the adulterated article for sale, or to prohibit the sale of petroleum that is inflammable at a less than the given temperature. This was a police regulation that could only be established by the States.1 So, also, it has been held to be unconstitutional for Congress to undertake to regulate the equal rights of citizens to make use of the public conveyances, hotels and places of amusement. In order to give full effect to the fourteenth amendment, which prohibited the States from passing or enforcing any law, which denied to any person within its jurisdiction the equal protection of the laws, Congress passed an act which declared that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land and water, theaters and other places of public amusement, subject only to the conditions and limitations established by law, and applica

1 United States v. De Witt, 9 Wall. 41; Patterson v. Commonwealth, 11 Bush, 311; s. c. 97 U. S. 501.