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13 January, 2012
The New Star Chamber and Other Essays
Implied Powers and Imperialism
by Edgar Lee Masters
No "progressive development" of the constitution can ever obliterate its original character and meaning upon many of its important features, This is true because its authors employed language as a whole which is remarkably clear; and the proceedings of state conventions and the writings of contemporary statesmen furnish additional data for construction and exposition. Thus the federal principle of the United States government is one of the most conspicuous things in the constitution. The constitution was adopted by states, it was to be binding between states when nine had ratified it, and it was to be amended by states. The senators, first called ambassadors, were to represent states. The president was to be elected by electors from states. The federal courts were to decide controversies between citizens of different states, and controversies where conflicting claims of different states were involved. Though development may wipe out the practical effects of these principles of the constitution, history cannot be obscured. So long as writings exist the original nature of the government will be clear to any man who can read.
Nor can any ingenuity argue away the fact that the United States government was created as a government of special and limited powers. For the ninth amendment to the constitution reads: "The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people." This is a most pregnant provision. For it is equivalent to saying that the failure to deny a power in the general government shall not be construed to grant it. It means that the constitution is not a limitation upon power. Directly bearing upon the limited character of this government is the Tenth amendment which reads "the powers not delegated to the United States nor prohibited by it to the states are reserved to the states respectively or to the people." Human speech is not capable of more precise meanings than these clauses convey. How did they come to be inserted in the constitution?
A confederation of states comprising a population of some 3,000,000 people had repelled an army of subjugation, and had returned to the walks of civil life. This birth of freedom brought its reaction. The aristocracy never wanted war with England. After it was over the cynical and selfish elements of the people hastened the dying down of the patriotic fires. The war had interrupted business and now to return to practical questions since the country was cut loose from the parent government, treaties must be made, commerce must resume its offices, and the United States must take their place as an entity in the world. If that day could be reconstructed in imagination the people as a whole would be seen going their way in the usual routine of life as happy and contented as they have done since under the constitution. People and not charters are the realities of life. Little credit can be given by the philosophic historian to the claim that the people were drifting toward anarchy because the articles of confederation contained defects -- defects which did not break down the people during a period of war and revolution. But conceding that changes in the organic law were needful and important the convention-call expressed the purpose of "revising the articles of confederation." The commercial interests demanded the revision. In order that the States could act with unity in foreign relations it was necessary that the general government should have more direct powers; for in such things energy and celerity are prerequisites of safety.
The constitution created a form of government never known before. There had been successful confederacies before the American confederacy, and the latter was certainly successful. These confederacies fell through the decay of the particular sentiment which gave them birth. The American confederacy was unified, it was given the spirit by the impulse of liberty which had been enkindled by oppression. Once the revolution was over the spirit of liberty subsided to some extent from a national channel, through the removal of the cause that drew it there and returned to more local and more individual and therefore more practical channels. It is probably beyond the capacity of the human intellect to determine whether if no change had been made in the form of the government the legitimate development of the people would have been different from what it turned out to be. If the people could once unite in a confederacy and save themselves they could do so again so long as they kept the spirit of independence; and when that is gone neither institutions nor constitutions will forestall foreign rule.
The form of government created by the constitution is novel in this that it is both confederative and national. Out of confederated states rises a distinct entity concerned with functions which it has been empowered by the states to perform; and this entity is divided according to the principles of Montesquieu into the departments of legislative, executive and judicial, acting within their delegated powers as if a general government had been created which had obliterated every feature of the confederacy. In this creation a step was taken beyond any former attempt. It was an evolutionary development beyond the philosophy of all political thinkers who lived before that day.
The necessity for revising the old articles of confederation was felt on all hands; but at the same time the people feared that the benefits of the revolution might be lost through the creation of a centralized government. The sedate, the orderly, the conservative elements of society, the people who amass wealth and attain position and power through its influence, complained of the excesses of democracy. They took advantage of the disorder which follows a war, the embarrassment which accompanies interrupted commerce to argue in favor of a stronger government. And all the ills which afflicted the new republic attributable not to the form of government entirely but to events from which they logically flowed were charged to the weakness of the confederacy. Nevertheless the hostility against the creation of a central government in which local self-government would be engulfed was so great that out of sixty-five delegates selected to attend the constitutional convention sixteen failed to appear. Patrick Henry declined the appointment altogether; and ten refused to sign the constitution after it was formulated. Of the three delegates sent by New York two returned when they feared that the convention was proceeding not to revise the articles of confederation but to go much beyond that in the formation of a government unknown and probably of doubtful power. These facts demonstrate the feelings of the most thoughtful people of the time and their aversion to a government which could be tortured by construction or development into an engine of oppression.
But Mr. Madison in Article 44 of the Federalist insisted that the constitution invigorated the powers of the articles of confederacy, and added but a few new powers. These he said were the power to raise revenue by taxes directly levied upon the people; the power to make naturalization laws uniform throughout the United States, and like uniform laws of bankruptcy; the power to issue patents and copyrights and the power to regulate trade with foreign nations, and among the several states. New restraints upon the states prohibited them from emitting bills of credit or making anything but gold or silver legal tender in the payment of debts; prohibiting them from passing any bill of attainder or ex post facto law, or law impairing the obligation of contracts; or from laying any imposts or duties upon imports or granting any title of nobility. Under the constitution the states control their militia and Congress can only organize them, arm them and call them out for service. Under the articles of confederation Congress had the power to appoint all the officers of the state militia; while under the constitution Congress cannot appoint these officers, but their appointments rest with the states whether the militia be in service or not. Outside of these provisions the constitution is a replica of the Articles of Confederation in respect to the powers created in either. The federal judiciary was a new feature, but the constitution invested it with powers which Congress exercised under the articles of confederation.
But by the articles of confederation it was provided that "every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled" is retained by each state. The constitution did not contain such a provision. On the contrary after granting all the old powers except as noted Congress was empowered to make all laws "which shall be necessary and proper for carrying into execution the foregoing powers." This became known as the "sweeping clause" in the discussions upon the constitution when it went to the states for ratification.
The history of the "sweeping clause" is as follows: On the second working day of the convention, May 29, 1787, Charles Pinckney, delegate from South Carolina offered a draft of a constitution which almost in substance and largely in language was the instrument finally approved by the convention. William Patterson of New Jersey also offered a draft which was considered and debated upon. A committee appointed from the body was instructed to consider the Pinckney and Patterson plans, which consisted of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut and James Wilson of Pennsylvania. Of the five three were accomplished lawyers.
Pinckney's plan, after providing for power in Congress to declare war, provide for the common defense, and to do other things much as the grant stood in the constitution as adopted, invested Congress with power as follows:
"And make all laws for carrying the foregoing powers into execution."
The committee in question reported on August 6, 1787, after giving both plans thorough consideration and submitting each clause to rigid scrutiny. In the draft that they reported back to the convention they amended the clause just quoted so as to read:
"To make all laws that shall be necessary and proper for carrying into execution the foregoing powers," etc.
The committee had inserted the words "necessary and proper" and had improved the rhetoric of the Pinckney clause. In this form it went before the people for adoption.
In the Virginia state convention which ratified the constitution Edmund Randolph, who was a member of the committee which inserted the words "necessary and proper" hastened to assure the people that the clause was harmless. It was, he said, a safeguard against monopolies. "This fundamental clause," said he "does not in the least increase the powers of Congress. It is only inserted for greater caution. No sophistry will be permitted to explain away these powers, nor can they possibly assume any other power, but what is contained in the constitution without usurpation."
In the same convention Patrick Henry declared that "when men give power they know not what they give." And of those who argued that the exercise of power which he feared would never be resorted to, he asked "why give power so totally unnecessary that it is said it will never be used?"
Edmund Pendleton on June 14, 1788, also made a speech on the "sweeping clause." "I understand that clause as not going a single step beyond the delegated powers. What can it act upon? Some power given by the constitution. If they should be about to pass a law in consequence of this clause they must pursue some of the delegated powers, but can by no means depart from them, or arrogate any new powers for the plain language of the clause is to give them power to pass laws in order to give effect to the delegated powers."
George Mason wanted an amendment so as to make the point clear; but amendments to this clause which to many minds was already perspicuous beyond doubt seemed caution run mad; and as the whole convention was agreed upon an amendment declaring that powers not delegated were reserved the question seemed to be covered completely. Notwithstanding this George Nicholas wished an amendment to be introduced in order to remove all apprehensions. John Marshall who was present, and who by an almost dramatic irony of fate was to construe the clause in question as Chief Justice of the Supreme Court, lent his influence to quiet the panic: "The State governments," he said, "did not derive their powers from the general government, but each government derived its powers from the people, and each was to act according to the powers given it." Then adverting to "the sweeping clause" he said, "Does not a power remain until it is given away?"
Such were the deliberations of Marshall's own state, deliberations in which he joined, and deliberations to which he contributed the weight of his influence in persuading a cautious and reserved people, fresh from revolution, to have no fear of the new government.
James Wilson had insisted in the Pennsylvania Convention on November 24, 1787, that all power resided in the people, and that the words: "We, the people," meant a grant from the whole people for the purposes of a common government. And it followed as a necessary corollary from his premises that whatever power was not granted by the people was retained by the people, except as they may have surrendered it to the several states.
While the constitution was pending before the states Jay, Madison and Hamilton were publishing a series of articles in the New York papers in favor of the new constitution. On January 3, 1788, one of these, written by Hamilton, appeared in the Daily Advertiser, and in discussing the "sweeping clause" Hamilton said:
"It conducts us to this palpable truth that a power to lay and collect taxes must be a power to pass laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision do more than declare the same truth, to wit; that the national legislature to whom the power of laying and collecting taxes had been previously given, might in the execution of that power pass all laws necessary and proper to carry it into effect." * * * "The declaration itself, though it may be chargeable with tautology or redundancy is at least perfectly harmless."
If Hamilton were right in this and the people felt assured upon the subject they had no reason to fear that twenty years after Marshall would hold that the "necessary and proper" clause "purports to enlarge and not to diminish the powers vested in the government" and "purports to be an additional power and not a restriction."
In any deliberative assembly there is a compound of diverse prejudices and convictions. All minds do not perceive the fundamental, the essential. Some see the subsidiary, the accidental and couple with their imperfect perception energy to demand and eagerness to debate. Any organic law is the product of such warring minds. And besides a constitution cannot from its character contain much detail. If it descends to trifles, to ways and means; if it is overloaded with restrictions and exceptions and qualified by still others for greater certainty it becomes a prolix puzzle which only the very learned and the very patient can comprehend. But there is such a thing as mental integrity, which forbids construing an instrument of freedom into a charter of despotism. No constitution can be drawn by the wit of man which cannot be forged into a weapon of wrong and oppression by loquacious sophistry. Subtleties may confound the plainest truths and arguments be advanced to justify any pretension, however repugnant to justice. So that in the last analysis morality becomes the final arbiter of a people's fate. The most careful system will collapse under the assaults of intriguing and unscrupulous special privilege. It is left to us to infer that such general considerations as forbade the formation of a mere code, overcame the recommendations of the states on the subject of an amendment prohibiting commercial monopolies. If all powers not granted were reserved, the most prophetic insight could not have foreseen that the power to erect a "commercial monopoly" could be drawn from powers "necessary and proper" to the execution of enumerated powers. The amendments which were adopted at the instigation of the suspicious and reluctant states were of a character calculated to satisfy the most critical.
Again it was generally known that the power to create corporations had been expressly raised in the constitutional convention and rejected. And if in the language of Marshall in the Virginia convention a "power remains until it is given away" no power was given away which was expressly proposed and expressly denied. Marshall's dictum was true even if there had been silence on the subject; how much truer was it when the convention had spoken its negative to the grant of power to create corporations. This action of the convention was generally known; for many of its members returned to their respective states to become members of the state conventions for adoption, and brought with them intimate knowledge and quickened intelligence upon the constitution and its meaning.
In fact Mr. Madison on August 18, 1787, submitted to the convention to be referred to the committee on detail certain powers to be added to those of the general legislature among which was the following:
"To grant charters of incorporation in cases where the public good may require them and the authority of a single state may be incompetent."
On September 14, 1787, Dr. Franklin moved to add after the words: "Post roads" (Art. I, Sec. 8) a grant of power "to provide for cutting canals where deemed necessary."
Mr. Madison then added to Dr. Franklin's motion a power which he had submitted on August 18th, as already stated "to grant charters of incorporation where the interests of the United States might require and the legislative provisions of individual states may be incompetent."
"Mr. Randolph seconded the proposition."
"Mr. King thought the power unnecessary. The states will be prejudiced and divided into parties about it. In Philadelphia and New York it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies."
* * * * * * * * *
"The question being so modified as to admit a distinct question specifying and limited to the case of canals the vote was taken with the following result: Pennsylvania, Virginia and Georgia -- Aye, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina and South Carolina, No, 8. The whole matter fell." As seen two southern states and one northern state voted aye; five northern states and three southern states voted no.
The states were not satisfied with the argument that powers not given away are retained although historically and legally it was perfectly valid. The dread of mercantile monopolies and of banks, the fear that silence in the constitution might be used against the states for the creation of corporations in general by Congress led them to suggest amendments to the constitution which would prevent the exercise of such power. It was an act of caution characteristic of human nature, but logically was out of place. For as under the articles of confederation each state retained its sovereignty and every power not expressly granted, and as they had not in the constitution parted with their sovereignty but had only granted certain sovereign powers or incidents of sovereignty it could not be necessary to negative the grant of something which could not pass. The precautionary language in fact lent color to a specious claim that the new government was something different than it really was.
Massachusetts was one of the first states to ratify the constitution; and its action preceded that of South Carolina or Virginia by several months. And in its instrument of ratification it was declared that:
"It is the opinion of this convention that certain amendments and alterations in the said constitution would remove the fears and quiet the apprehensions of many of the good people of this commonwealth, and more effectually guard against an undue administration of the federal government."
And the convention recommended as amendments:
I. "That it be explicitly declared that all powers not expressly delegated by the aforesaid constitution are reserved to the several states to be by them exercised."
V. "That Congress erect no company of merchants with exclusive advantages of commerce."
New Hampshire ratified the constitution before Virginia and in its instrument of ratification it was set forth:
"As it is the opinion of the convention that certain amendments and alterations in the said constitution would remove the fears and quiet the apprehensions of many of the good people of this state and more effectually guard against an undue administration of the federal government."
It was recommended that the following amendments to the constitution be made:--
I. "That it be explicitly declared that all powers not expressly and particularly delegated by the aforesaid constitution are reserved to the several states to be by them exercised."
V. "That Congress shall erect no company of merchants with exclusive advantages of commerce."
John Marshall was a member of the Virginia state convention and participated in its debates. Virginia ratified the constitution on June 26, 1788, a month after South Carolina ratified it, and a month before New York ratified it and in its instrument of ratification the people of Virginia said:
"With these impressions" that "every power not granted thereby remains with them and at their will" and that nothing can be done by the house and senate or the president "except in those instances in which power is given for those purposes" they accepted the constitution.
South Carolina ratified the constitution on May 23, 1788, and its convention declared that:
"This convention doth also declare that no section or paragraph of said constitution warrants a construction that the states do not retain every power not expressly relinquished by them," etc.
New York ratified the constitution on July 26, 1788, and its convention incorporated in the instrument of ratification these words:
"That every power, jurisdiction and right which is not by the said constitution clearly delegated to the congress of the United States or the departments of the government thereof remains to the people of the several states."
* * * *
"Clauses which deny powers do not imply powers not so negatived, but are exceptions to specified powers or are inserted for greater caution."
And it was recommended as an amendment:
"That the Congress do not grant monopolies or erect any company with exclusive advantages of commerce."
Of the nine states which first adopted the constitution, nine being necessary to establish it, New Hampshire was last. Three of the original nine made recommendations as already noticed for specific amendments in order to preserve local powers and to limit the constitutional grant. Two of these were northern states and one was a southern state. Massachusetts, the home of Puritanism, led off as shown with declarations and amendments and New Hampshire followed her example using almost the same language of the Massachusetts ratification. New York, which was the eleventh state in point of time to ratify the constitution, proposed amendments as already appears and of the eleven states which had ratified the constitution by March 4, 1789, five had proposed amendments of limitation and of these three were northern states and two were southern states. Rhode Island, which adopted the constitution on May 29, 1790, declared in its instrument of ratification that:
"Every power, jurisdiction and right which is not by the said constitution clearly delegated to the congress of the United States," etc., "remains to the people," and the convention recommended an amendment providing:
"That Congress erect no company with exclusive privileges of commerce."
The revolutionary spirit, the consciousness of liberty dearly bought prompted these suggested amendments. They were inspired by jealousy, by an intuition of human nature with its passions for power. The courageous men who disregarded the ties of friendship, the amenities of conventional debate, and who impugned the judgment or good faith of their associates to secure these amendments can never be honored sufficiently by a grateful people. "Is a power not retained until it is given away?" asked Marshall. "Why not say so?" retorted Patrick Henry; "Is it because it will consume too much paper? * * * Nations who have trusted to logical deductions have lost their liberty. * * * I see the awful immensity of the dangers with which it (the constitution) is pregnant. I see it; I feel it!" A fearful storm broke as Mr. Henry was concluding, driving the convention into a panic. It was his last speech. Nevertheless the work had been done. The timorous, the trusting, the indifferent, the sophists, the monocrats were overridden. On March 4, 1789, the first day of the new government, Congress passed a resolution which among other things contained this language:
"The conventions of a number of the states having at the time of their adopting the constitution expressed a desire in order to prevent misconstruction and abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institutions," it was resolved that among others these two amendments be proposed to the legislatures of the states:
"The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people."
"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."
Thus the character of the government was not left to be ascertained by logical deduction. Its character was stamped in plain language upon the constitution of the government, and nothing could have changed it except willful violation of the instrument.
The subjects upon which the doctrine of implied powers was first invoked, namely, the protective tariff, and a United States bank, have been obscured by the graver questions of colonialism and militarism. But as the reasoning which was used to support the tariff and the bank is the same which was used to support colonialism and will be used to further revolutionize the form of the government, an examination of its futile sophistry cannot be out of place.
If the constitution as proposed had contained a clause empowering congress to grant charters of incorporation no question could ever have been raised to the bank except one of expediency. Madison, as shown, seemed to think it a proper power for congress to possess. Objections might have been made afterwards to the propriety of a banking corporation chartered by congress. Some might have thought state banks sufficient. But if the constitution enumerated the power its exercise would have been like that of the power to pass general bankruptcy laws, sometimes to be availed of and at other times to be relinquished to the states.
It is past all doubt, however, that the framers of the constitution were exceedingly apprehensive of corporations; and the danger suggested to their minds in the concrete was commercial monopolies, such as the East India Company, of England, which was to them what the trusts are to us to-day. Monopolies of one kind or another, but all relating to commerce, had always afflicted England, as well as other countries. And this they no doubt sought to forestall as to America. Besides they could see as clearly as we can now that national corporations would look to their creator for protection and redress; they would proceed from the general government, but would roam at will through the states. They might be even banking corporations and as shown anything in the constitution squinting towards a bank suggested defeat in its adoption by New York and Pennsylvania. They would have little, perhaps nothing, to ask from the states; at least the question was so doubtful that those who framed the constitution declined to incur any risk on the subject. Besides the abstract right of local control was a touchstone in determining every grant of power which the constitution contained. So much power as was necessary to accomplish national purposes was intended to be given away; and all in excess of that was to be retained. It was perfectly obvious also that a corporation involved some form of special privilege, either by way of exceptions to the person interested, or by way of centralized power for corporate purposes. What sort of bodies would emanate from the general government under such a constitutional power? They could foresee great trading companies and great banks. The right to charter carries with it the right to grant privileges and franchises. And what state could protect itself against such an incorporeal creature when no state could control the power which gave it existence? Hence, as already shown, congress was denied the power to charter companies.
As congress possesses definite powers expressed with rhetorical precision, the creation of a corporation not only must raise the question of the expediency and justice of the particular act; it must also lead men to inquire what limit can be set to congressional action. If the constitution can be broken down for a good purpose it can be broken down for a bad purpose. And whether the purpose be good or bad, the methods essential to employ in leveling the constitutional barriers are among the most corrupt as they are the most dangerous that ingenious lawlessness can devise. To say, for instance, that congress can constitutionally impose a protective tariff under the general power "to promote the general welfare" or that it may incorporate a bank under the general clause empowering congress "to lay and collect taxes," because a bank may by possibility through its functions of deposit and transmission facilitate the collection of taxes, is a form of illogic, the danger of which cannot be estimated. Joseph Story, in writing upon the protective tariff; had occasion to advert to the pernicious subtleties with which these arguments are clothed. "The violation," wrote he, "consists in using a power granted for one object to advance another, and that by a sacrifice of the original object. It is, in a word, a violent perversion, the most dangerous of all, because the most insidious and difficult to resist."
In August of 1790 congress called upon Hamilton as Secretary of the Treasury to report further provision for establishing the public credit. On December 13, 1790, Hamilton responded by furnishing to congress his first report on a national bank. This report need not engage our attention because it related to the expediency of such an institution and the details of its formation. In conformity with the report the legislative bill of creation was formulated in congress and provoked instant and bitter hostility.
We have already seen that Madison was not opposed to corporations of themselves, but on the contrary thought congress might have the power to charter them. But when the convention overruled him and the constitution went into force devoid of any such powers Madison evinced the courage and good faith to stand by the constitution as it was adopted. The congressional debates disclose that on February 2, 1791, Madison made a speech on the bank bill in opposition to it. "He then expressly denied the power of congress to establish banks. And this he said was not a novel opinion; he had long entertained it. All power, he said, had its limits; those of the general government were ceded from the mass of general power inherent in the people, and were consequently confined within the limits fixed by their act of cession."
Hamilton's elaborate argument contained in his report to congress in which he set out the constitutional provisions and deductions supposed to authorize the chartering of the bank is an adroit piece of fallacious reasoning. Thus his first proposition involves the fallacy of undistributed middle. It is this: that the United States are sovereign and as all sovereign nations can incorporate companies the United States as a sovereign nation can incorporate a bank. The major term here is: the United States are a sovereign nation; and the minor term is: a sovereign nation may incorporate a bank; and the conclusion is: the United States may incorporate a bank. But the minor premise which declares that a sovereign nation may incorporate a bank means a nation which is sovereign as to all subjects, while the major premise can only mean that the United States are sovereign with respect to some subjects, that is, it can exercise only a limited amount of sovereignty. Thus the fallacy consists in using the words "sovereign nation" and "United States" as equivalent terms. There is a play upon words using the terms first in one sense and then secondly in another. For the United States, while among the sovereign nations, e. g., exercising sovereign functions for the people -- and this is all the major premise means -- do not partake of all the attributes of sovereignty which those nations possess of which as a class the United States are a member; nor yet of those attributes by which banks may be chartered. Sovereignty may be limited or plenary. Russia is a sovereignty in which the Czar is the source of law bound by no limitation whatever; England is a sovereignty bound by a vague constitution known as the ethical law; Switzerland is a sovereignty bound by a written constitution of the utmost strictness. Therefore, although all are sovereign, some things can be predicated of Russia that cannot be predicated of England. Some things are possible to England which are impossible to Switzerland. As Mr. Lawrence points out in his essays: "All sovereign states are equal before the law, although some may be more powerful and influential than others." Any state is sovereign which is self-existent, which commands authority in civil society, which directs its citizens and moulds its institutions and which is a member of the family of nations. But it is a clear fallacy to use the term sovereignty in connection with those nations which have all power on all subjects and then use it in application to a nation which by its organic law has all power on a few subjects, and those to be constitutionally exercised, and no power whatever on a vast number of subjects.
Hamilton started out with this remarkable proposition that the definition of government, and the definition necessary to be used for the United States "essential to every step of its progress is that it is sovereign." Government may be an entity produced by compact; but that the definition of government is that it is sovereign is certainly novel. It would be just as scientific to say that the definition of government is that it is a democracy or an oligarchy. Sovereignty is an attribute or a quality, and does not comprehend the thing known as government. And if Hamilton meant to say that the United States were sovereign as much as any nation, he knew that the definition was untenable, because he knew that no government is sovereign in the sense in which he used the term which is limited in its operation by its charter of creation proceeding from its creators and enumerating its powers and limitations. While all nations possess sovereign powers, while all are on an equality with each other before the law of nations, they are sovereign in different degrees, in the same manner that all men possess strength, but are not all equally strong. And while Hamilton was reasoning from analogy it was necessary for him to keep in mind the principle that the United States might resemble all other nations in the quality of sovereignty without at all resembling them in the quantity of sovereignty. Analogy does not imply a resemblance of one thing to another, but only the resemblance of relations. Thus the Czar of Russia and the President of the United States are both executive officers, but it by no means follows that because they resemble each other in being executive officers that there is a resemblance between the things themselves. For instance, who would pretend that the president is an executive and can make a law because the Czar is an executive and can make a law?
Hence Hamilton's next premise that every power vested in every government is sovereign is a non sequitur, because it might be admitted without conceding that the United States are sovereign in the sense in which he used the term. In other words, the United States might have sovereign powers without the United States being a sovereign power in the sense that Russia is a sovereign power. Then as a conclusion he insisted that the term sovereign included a right to employ all the means requisite and fairly applicable to the attainments of the ends of such power. Given a sovereign power the designated means could be used to attain the ends of such power. To make his argument more concrete, the constitution empowers congress "to provide and maintain a navy." That being a sovereign power, not because the constitution vests the power, but because "every power vested in the government is sovereign," as he argued, any means "requisite and fairly applicable" might be used to attain it, while the constitution says that the means must be "necessary and proper." He simply ignored the language of the constitution and asserted that those means could be used which the constitution does not permit. It was incumbent upon Hamilton to prove that the United States had the particular power to incorporate a bank, whereas, his deduction based upon the premise that any sovereign nation could incorporate a bank contained a formal fallacy, because his terms were not distributed so as to make that capable of being affirmed of the United States which he affirmed of any sovereign nation.
To what point now does Hamilton's argument conduct us? First, that the definition of every government is that it is sovereign; second, every power vested in every government is sovereign; third, the term sovereign includes the right to employ all the means requisite and fairly applicable to the attainment of the ends of such power.
It would seem that if every government is sovereign it is mere tautology calculated to confuse the subject to say that every power vested in a sovereign government is sovereign. It is not necessary to predicate of a sovereign government that its powers are sovereign. If the government is sovereign it is either so with reference to a few subjects or as to all subjects. Which sort of sovereignty do the United States possess? If they have sovereignty only as to a few subjects, the particular legislation must come within the scope of the subjects; if they have sovereignty as to all subjects the argument is at once closed and elaborate metaphysics is unnecessary to establish that which every man of sound mind must perceive to be within the principle of inclusion. If congress is an English parliament, holding within itself all power because in theory all the people of the nation are in the chamber where it sits, the incorporation of a bank is but a trifling exercise of the plenary commission. If congress is a body representing the people only so far as the constitution defines and permits, the incorporation of a bank must be brought within the scope of the constitution. The sovereignty of the United States has nothing to do with the question, except in so far as sovereignty has been granted and that must include the power necessary to use.
But Hamilton's three terms did not exhaust his doubts and scruples. He conceded that all means requisite and fairly applicable could be used which
(a) Are not precluded by restrictions and exceptions specified in the constitution.
(b) Not immoral.
(c) Not contrary to the essential ends of political society.
Why make these exceptions? They convert the whole argument into a sophistical jumble. If he had adhered to his original terms and predicated sovereignty of the United States and then predicated of that sovereignty every attribute possessed by any nation he might have had a homogeneous argument. If, on the other hand, he wanted to make a constitutional argument, he was familiar enough with the subject from personal contact to have interpreted it along the line necessary to its perversion. But in welding the two arguments together he produced a result which dissolves under analysis.
His first qualification that any means may be used, not precluded by restrictions and exceptions in the constitution is a baseless assumption, which has been repudiated by every constitutional interpreter of any note. We have already shown that several of the states in their instruments of ratification requested an amendment in the constitution which should declare that all powers not delegated by the states or the people were reserved. Hamilton was a member of the New York convention and that state demanded the amendment. Marshall was a member of the Virginia convention and Virginia demanded the amendment. Massachusetts, New Hampshire, Rhode Island and South Carolina demanded the amendment. And the amendment was proposed by the first congress and afterwards adopted by all the states in which it was declared that "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."
This amendment covered in terms the doctrine of enumeration; for as Lord Bacon said enumeration weakens law in cases not enumerated. Under the Baconian rule, if a power was not mentioned among a list of powers enumerated, it was excluded as a matter of construction; which does not take into account the fact that the constitution proceeded from the people, and as Marshall said in the Virginia convention: "Does not a power remain until it is given away?"
Hamilton's dictum that all means could be used to an end not precluded by restrictions and exceptions was a statement of revolution and nothing less. It followed from that that congress was a British parliament, except where it was restrained by exceptions and restrictions. For, while the British parliament is the sole repository of power, the English constitution, consisting of the ethical law, operates as a restrictive influence upon legislative action. No one was ever bold enough to affirm this proposition since Hamilton's day until the author of the Insular decisions revamped it. But Hamilton further argued that in spite of sovereignty and sovereign powers, that no means could be used which were immoral. It is very difficult to understand why immoral means could not be used. The constitution permits "necessary and proper" means, and many means might be necessary to sovereign power which would be at the same time immoral. Sovereign nations habitually use the most immoral means for ends alleged to be necessary and moral, and for ends understood to be immoral. Mr. Story defined sovereignty to be "supreme, absolute, uncontrollable power, the jus summi imperii, the absolute right to govern." So that, if the right is based upon sovereignty its morality need not be urged. It is inconsequential and beside the point.
Let each man bring it home to himself acting as a champion for a commercial monopoly, and on the question of its lawful creation, imagine himself volunteering the question of its morality. It must be conceded that Hamilton's audacity was satanic. For in his report on the bank he had provided "No similar institution shall be established by any future act of the United States, during the continuance of the one hereby proposed to be established." This he knew; this he had written. And he knew the horror with which the people of the day regarded monopolies, and that his own state of New York in its convention of adoption of which he was a member, had recommended as an amendment to the constitution "that congress do not grant monopolies." The amendment was not proposed by congress because the tenth and eleventh amendments covered that point, and were understood to cover it.
But in spite of the sovereignty of the United States if congress could adopt no immoral means to an end, how could the bank be justified? It was a monopoly and intended by Hamilton to be such. A monopoly is essentially immoral. It strikes down equal rights; it grants special privileges; it destroys instead of preserving the "blessings of liberty;" it extorts tribute without any equivalent in return; it exacts servitude, and it breeds hatred and disorder in the state. Such has been the history of monopolies; while their evil influences have so menaced the absolutism of thrones that despots have been forced to control them and in some instances to eradicate them. Hamilton's exception based upon the morality of means, related as it was to the consideration of a commercial monopoly, was a piece of sardonic irony which entitles him to a place beside Richelieu and Lord Bacon.
Hamilton's third exception to the use of all means excludes all those which might be contrary to the essential ends of political society. He does not explain what are the essential ends of political society. But if a monopoly was not in his judgment contrary to those essential ends, it is possible that in his judgment many other institutions, such as nobility, mortmain or state religion might not be contrary to such ends. Whatever the ends of political society are in the abstract or in general, the ends of the political society known as the United States are set forth in the preamble of their constitution. The government was ordained "to establish justice," and if so not to deny it by the creation of monopolies: "to insure domestic tranquillity," and therefore not to foment hatred and discord among the people by the abuse of government in the enactment of partial and oppressive laws; "to promote the general welfare," and, therefore, not to promote the particular welfare of a few at the expense of the many; "to secure the blessings of liberty to ourselves and our posterity," and, therefore, not to detract from the rights of some to add to the advantages of others and thereby to invade the liberty declared to be an object of regard.
Hamilton then proceeded to other enunciations. If, he argued, the United States are not less sovereign, as to "proper objects," because the states are sovereign as to their "proper objects;" if laws made in "pursuance of the constitution," are the supreme law of the land -- then "the power which can create the supreme law of the land in any case, is doubtless sovereign as to such case." How does this follow? He has affirmed that the United States are sovereign as to their "proper objects;" then that laws made in "pursuance of the constitution" are the supreme law of the land. Then the ground is shifted. The succeeding proposition is that "the power" can create the supreme law "in any case," whether "in pursuance of the constitution" or not, whether as to "proper objects" or not. And therefore, the power which can create the supreme law in "any case" is obviously sovereign "as to such case." It is more; it is sovereign as to every case! And what is in fact proven with respect to the United States?
From so many postulates he deduced the following: "This general and indisputable principle (e. g., creating the supreme law of the land) puts at once an end to the abstract question whether the United States have power to erect a corporation." For "it is unquestionably incident to sovereign power to erect corporations and consequently to that of the United States in relation to the objects entrusted to the management of the government."
Creating the supreme law of the land in every case, or to be more specific, creating a corporation as incident to the power of creating the supreme law of the land, is a different thing from passing a law in pursuance of the constitution. For if it be not in pursuance of the constitution, it is not the supreme law of the land; it is not law at all. How, then, is the question of creating a corporation put at rest by asserting that laws passed in pursuance of the constitution are supreme? Here is a clear petitio principii. The main thing remains to be proven, namely, that a law chartering a bank is in pursuance of the constitution and therefore is a law, and as to all the sovereignties known as the States is supreme. Nor is the power to charter corporations an incident of sovereignty, except as the term sovereignty means supreme, absolute, uncontrollable power, which the United States were not alleged to possess. Such power would be an incident, that is to say, inhering in or attached to an uncontrollable, absolute power. But when uncontrollable, absolute power is denied by express constitutional provisions it is incumbent upon him who has the affirmative to prove that the particular incidents of sovereignty are attached to some sovereign agency or commission expressed in the constitution.
Hamilton's argument then reduces itself to these assertions:
(a) Every government is sovereign;
(b) Every power vested in a sovereign government is sovereign;
(c) A government to effectuate any sovereign power may use any means;
(1) Not precluded or excepted;
(2) Not immoral;
(3) Not contrary to the essential ends of political society;
(d) The United States are sovereign because the constitution and laws passed in pursuance thereof are supreme;
(e) Therefore the United States may charter corporations;
This is the lauded foundation upon which American absolutism rests, for it is absolutism and nothing else. It is a sheer waste of time to argue that a law is not necessary or proper, because if the republic was constructed to rest upon a question of etymology it was doomed from the day of the adoption of the constitution. The question of the bank was argued at length upon the definition of the word "necessary," and Hamilton, with labored logic, connected the necessity of the bank with the express power of borrowing money, raising revenue and equipping armies. The word necessary imports inevitability both in its radical and its popular significance. But the word has synonyms of lesser shades of meaning which Hamilton contended should be used in construing the "sweeping clause." On this branch of the question he sophisticated the constitution to empower congress to incorporate the bank. Not satisfied wholly with his own argument for this source of power, nor for the source of the power in the sovereignty of the United States, he dwelt upon the territorial clause wherein the congress is given power to make all needful rules and regulations for the territory or other property of the United States which he said included the power to erect municipal or public corporations. Therefore, he said, the power to erect a corporation of the highest nature was granted by the constitution; and a bank might be incorporated under the clause giving the congress power to make all needful rules and regulations respecting the territory or other property of the United States. Because, he argued, money is property and "therefore the money to be raised by taxes as well as any other personal property must be supposed to come within the meaning as they certainly do within the letter of authority to make all needful rules and regulations concerning the property of the United States." And hence the bank might be an institution connected with the property of the United States which they are empowered to control by all needful rules and regulations. This branch of the argument does not rise to the dignity of a question, nor ought serious discussion to be provoked by the claim that a money monopoly is necessary to the execution of any enumerated power of congress.
But because the argument upon the sovereignty of the United States is the real strength of imperialism and of the rapidly centralizing tendencies of the government the specious bubble should be exploded. That as an implication of sovereignty the United States may adopt colonialism and as a corollary maintain under the control of the president an army in distant islands or in any part of the world is one of the flimsiest political pretenses ever made. What is the meaning of the historic and settled principle that the federal constitution is a grant of power? Manifestly that a residue remains in the grantor and that the power not granted remains with the sovereignty which made the grant, namely, the states or the people through the states. Or what is meant by the correlative of this principle that the state constitutions are a limitation upon power? Manifestly that ultimate sovereignty or paramount and absolute power is with the people who are the source of all authority in this land. For power here proceeds from the people up, and not as in monarchies from the sovereign down. Now suppose neither the states nor the people want a policy pursued; yet what can prevent it if the United States are the sovereign power, the repository of sovereign power, of paramount power, and their officials construe the sovereign power to the support of the unwelcome policy? Is it any answer to say that the people at the polls can reject or confirm the policy? No man who loves or understands constitutional government will say so. Nor can it be maintained for a moment that sovereignty is in the United States. Chief Justice Marshall in the great case of Gibbons v. Ogden said: "It has been said that they (the states under the Confederacy) were sovereign, were completely independent and were connected with each other only by a league. This is true." Now when the constitution was framed they withdrew from the confederacy and formed "a more perfect union" under the constitution, as its preamble declares. But while they gave it into the hands of the general government to exercise great sovereign powers, they did not surrender their sovereignty, nor did the people back of the states surrender to any entity their paramount power. As laid down by Vattel nothing can be implied to increase the grant of power of the sovereign. The powers granted in the constitution to the United States are incidents of sovereignty, e. g., to declare war, coin money, lay taxes. But as the great constitutional lawyers of the past so often pointed out how absurd to specify and grant these incidents of sovereignty if sovereignty itself in its entirety was by the constitution transferred from the states and from the people, and at once by the ratification of the constitution vested in the general government with all the plenitude of its power. If the United States are sovereign, as the imperialists use the term, how is the constitution a grant of power; why were amendments to the constitution contemplated, and why should they be ratified by three-fourths of the several states? How can this monstrous sophistry of Hamilton, grown into imperialism itself, consist with the tenth amendment that "powers not delegated to the United States by the constitution nor prohibited by it (the constitution) to the states are reserved to the states respectively or to the people?" Powers of sovereignty the United States have had from the beginning, and should have had; but they never had sovereignty, because it was never granted to them, and at the time of the adoption of the constitution it was in the states or the people of the states, as we may choose to view the question.
The doctrine of implied powers being sophistical in itself conducts to still more startling fallacies. For instance, it is an incident of sovereignty to make war, but by implication do the United States possess in connection with that incident of sovereignty the power of a sovereign nation to annex distant territory and overwhelm the order and the liberty of the states which granted the incident of sovereignty to make war? If so constitutions are superfluous, because language is not exact enough to express the limitations intended to be imposed. They can be avoided and evaded and the whole sovereignty drawn over to the medium of sovereignty by the deductions of metaphysics. How nearly shall be realized the prophesy of George Mason contained in the objections to the constitution which he submitted to the Virginia legislature? In explaining his refusal to sign the constitution he said: "The judiciary of the United States is so constructed and extended as to absorb and destroy the judiciary of the several states, thereby rendering laws as tedious, intricate and expensive and justice as unattainable by a great part of the community as in England; and enabling the rich to oppress and ruin the poor.
* * *
This government will commence in a moderate aristocracy; it is at present impossible to see whether it will in its operations produce a monarchy or a corrupt, offensive aristocracy. It will most probably vibrate some years between the two and then terminate in the one or the other."
An army fighting for liberty at home, and an army fighting against liberty abroad is the measure of constitutional progression which gives truth to these words. The cautious ninth and tenth amendments have turned out to be of no binding consequence? For, as seen, although the constitution is a grant of power; although enumeration of powers shall not be construed to deny or disparage those retained by the people; although powers not delegated are retained by the people -- a system of legal sophistry, devised in large part by Hamilton and perfected by his followers, has sufficed to incorporate companies, confer special privileges and ingraft the very substance of monarchy upon the republic in the form of colonialism. What could the general government have done in addition if the people in the states had surrendered to it all power whatsoever? This denouement would be ridiculous if the ultimate scene already foreshadowed did not give promise of one of the most deplorable declines recorded in history.
This, then, is the foundation upon which rests the whole superstructure of that alleged sovereignty which never existed in the constitution. As it was cemented with a mixture of falsehood and fraud it is doomed to dissolve in the process of time which eats away all that is unreal; but when the foundation falls will not all that was good in our system perish with all of this created evil? What providence will reverse the universal rule?