HumanitiesWeb HumanitiesWeb
Sort By Author Sort By Title

Sort By Author
Sort By Title


Get Your Degree!

Find schools and get information on the program that’s right for you.

Powered by Campus Explorer

& etc

All Rights Reserved.

Site last updated
28 October, 2012
Real Time Analytics
A Constitutional History of the United States
Chapter XVI - Organization of the Government.
by McLaughlin, Andrew C.


To put the Constitution into effect and the government into operation, the old Congress named the first Wednesday in January for the appointment of presidential electors, the first Wednesday in February for the election of the president, and the first Wednesday in March, which was the fourth day of the month, for the establishment of the new government at New York, then the meeting-place of Congress. The new legislature met with the deliberation characteristic of those days. A quorum of the House was not in attendance until the first of April and of the Senate not until some days later. Washington was declared elected President and Adams Vice-President; the President took the oath of office April 30, 1789. Even before the inauguration of the President the House had gone to work upon a revenue bill, which was passed after some weeks of discussion, and after modification by the Senate the act became a law; the new government had means of getting revenue. At an early date provision was made for the organization of executive departments. Washington named to the important offices provided for by the congressional act, Thomas Jefferson, Secretary of State; Alexander Hamilton, Secretary of the Treasury; and Henry Knox, Secretary of War. The office of Attorney-General, not strictly an executive office, was given to Edmund Randolph.[1] Some months passed, however, before these offices were filled and the executive branch of the government was in working order.

The new government went into operation quietly. Those who had opposed the adoption of the Constitution were prepared to accept the results of the long discussion and not to prevent the peaceful inauguration of the system. There were, it is true, many who still retained certain fears and forebodings — fears lest under cover of the Constitution personal rights would be ignored or even a counter-revolution be brought to pass. Such opposition, if opposition it may be called, was, as we shall see, confined practically to a determination not to allow the Constitution to he maltreated by the men charged with the duty of making it operative. The Constitution marked the limits of governmental power; those limits must not be crossed. We need to bear in mind that the Constitution was actualized as a living fact by translation into tangible institutions. To comprehend now the importance of this early transmutation is not easy; but the fact is plain; every step taken, every principle announced or acted upon, was important in giving life to words; conduct was creative; practice and procedure soon became constitutional reality.

As we have seen, some of the states when ratifying the Constitution had advocated and proposed amendments. At the first session of the first Congress twelve amendments were proposed, ten of which were in the course of time ratified by the requisite number of states. These amendments are restrictions on the powers of the national government, not on the powers of the states.[2]

Finance was the crucial problem of the time. How were the debts of the country to be provided for? Any attempt to establish a thorough financial system, indeed anything likely to give effectiveness to the new government, was sure to meet with objection. In the autumn of 1789 Congress directed the Secretary of the Treasury to prepare a plan for the support of the public credit. Hamilton entered joyously upon the task and in January presented his report. The whole paper richly rewards reading, if anyone desires to know the principles for which Hamilton stood and the basis on which the financial system of the new government was made to rest. By what means, he asked, is the maintenance of public credit to be effected? "The ready answer to which question is, by good faith; by a punctual performance of contracts." The answer appears simple enough now, but its importance thus announced at the beginning, in days of poverty when at least partial repudiation was thinkable, was of great moment. It involved the establishment of the national character. The proper and honest handling of the debts meant more than financial stability or economic well-being in any narrow sense; there was a moral obligation. There was, the Secretary declared, a general belief that the credit of the United States would be established on "the firm foundation of an effectual provision for the existing debt." "... among ourselves," he said, "the most enlightened friends of good government are those whose expectations are the highest. To justify and preserve their confidence; to promote the increasing respectability of the American name; to answer the calls of justice; to restore landed property to its due value; to furnish new resources, both to agriculture and commerce; to cement more closely the union of the States; to add to their security against foreign attack; to establish public order on the basis of an upright and liberal policy; — these are the great and invaluable ends to be secured by a proper and adequate provision, at the present period, for the support of public credit."

He deprecated making any discrimination between the "original holders of the public securities, and present possessors, by purchase".[3] Against such a proposal he presented vigorous objections. In this connection he referred to the constitutional provision concerning the validity of the debt. The state debts, too, he believed should be assumed: "Indeed, a great part of the particular debts of the States has arisen from assumptions by them on account of the Union. And it is most equitable that there should be the same measure of retribution for all." The total foreign and domestic national debt, including arrears of interest, he placed at $54,124,464.56; the state debts he estimated to be about $25,000,000, making in the aggregate nearly $80,000,000.

The discussion in the House disclosed distrust and divergence of opinion. Concerning the debt owed to foreign governments, there was not much to be said; but the domestic debt was another matter. Why pay the present holders the face value of the certificates, when, as everyone knew, many of these certificates had been secured for a small fraction of their face value? Why put money in the pockets of the speculators and the money-changers? Some members probably wished a definite depreciation of the debt. Madison, not edified by the eagerness of the bondholders to reap their unexpected reward, proposed in the House to pay to the holders of the certificates the highest price which the certificates had up to that time reached in the market, and to pay the remainder to the original holders. Such a plan was of course impracticable, and is here mentioned only because it gives evidence of Madison's separation from Hamilton and his failure to identify himself with the elements that were gathering about the Secretary of the Treasury and applauding his plans. And all this is important for constitutional history because opposition based upon constitutional argument arose and conflicting theories of constitutional construction concerning the powers of the national government were put forth. The debates in the House were sufficiently earnest and excited to give warning of the struggle to come. Madison's proposal received only thirteen out of forty-nine votes.

The assumption of the state debts had a particularly hard road to travel. Over that matter the debate was heated, vehement. The root of the difficulty was that some of the states, and notably Virginia, had considerably reduced their debts, while others had not. The debt of Massachusetts was burdensome, as was that of South Carolina. The members from the states with large debts and all holders of state securities were naturally impressed with the wisdom of Hamilton's proposal for assumption; but it was at first not acceptable to Congress. Hamilton did not despair. Jefferson had recently appeared in New York to take up the duties of office, and partly through his assistance a bargain was struck whereby enough votes were obtained to secure assumption, and it was arranged that the seat of government should be for ten years at Philadelphia and thereafter on the Potomac. The bill for the funding of the debt, including the debts of the states at specified amounts, was passed in August, 1790. Jefferson later lamented that for "This game", as he called it, "... I was most ignorantly & innocently made to hold the candle." "... the more debt Hamilton could rake up, the more plunder for his mercenaries."

Hamilton's reasons for desiring assumption were fairly plain. By this as by other plans he doubtless desired to attract the interest of those "enlightened friends of good government" of whom he had spoken. Assumption would be of value to security-holders and would be approved by all or many who desired stability and good order in financial affairs. If such persons were drawn to support the new government, it would have real and substantial strength. Probably of great moment in his mind was the effect of having creditors look to the national government rather than to the states for payment of their claims.[4]

The question of assumption had arisen in the Constitutional Convention,[5] and Hamilton's plan therefore could have been no new and startling proposal to a good many members of Congress. Disintegration of the union was a real danger, to men like Hamilton, the greatest danger. If there should be but one debtor — the nation — the creditors would be deeply interested in the national stability. A creditor is always interested in the well-being of his debtor. Why the seat of government should be considered such a weighty matter is less easy to understand. Whatever the reason, it appeared to be a thing of vital importance. The site of the national government had been discussed before there was any government worthy of the name, and at a time when men might properly doubt whether there would be a nation; of course state pride and jealousy played their parts, and that very jealousy was fraught with peril. Though of trivial importance in comparison with Hamilton's wide and deeply-laid plans, it was one of those tangible questions which are wont to arouse men's combative local patriotism.[6]

Did Hamilton's assumption measure really help to strengthen the union? One cannot be sure. Doubtless anything making for financial and commercial stability and for strengthening the public credit helped to create national vitality and to develop national sentiment. But enmities were aroused, sectional differences appeared, and the agrarian opposition to the certificate-holders and speculators quickened suspicions and alarms. Hamilton's plans for developing political unity and strengthening the new government were not altogether promoted by assumption. Ere long Jefferson was bitterly hostile to all the devices which seemed calculated to enrich the speculators. The agrarian elements were not ready to balance financial stability and commercial prosperity over against the ready-made fortunes of the few; the whole funding process appeared to be begotten of evil.

Hamilton's plans included the levying of an excise tax on distilled liquors as well as an increase in customs duties. In the spring of 1791, the Excise Act was passed. There could be no reasonable objection to it on constitutional grounds, for the right to levy excises is explicitly mentioned in the Constitution, but it provoked indignant opposition. The objectors in the back-country, who had been accustomed to use this liquid currency for more than their own delectation, carried their opposition so far that it was necessary at a later time (1794) to call forth troops to suppress the "whisky rebellion" in western Pennsylvania. Men claimed the natural right to drink freely without having their simple joys disturbed, and they doubtless failed to see the humor in the suggestion that they might be drinking down the national debt.

Of most importance from the viewpoint of the constitutional historian was Hamilton's plan for a national bank. On that subject he made a separate report in December, 1790. To justify the measure the Secretary had to show the advantages of a bank and its service to the government. The principal advantages he declared were the augmentation of active or productive capital, the greater facility of the government in obtaining pecuniary aids, especially in emergencies, and lastly, the increased facility in the payment of taxes. A capital of ten million dollars was proposed, one-fourth payable in specie and the remainder in certificates of the public debt; one-fifth of the capital stock was to be subscribed for by the government, that sum to be borrowed of the bank.

The proposal was of course sharply attacked. A large portion of the American people have never felt affection for banks; in those days the mysteries of the banking business were to many persons as hateful as they were obscure. In Congress Madison furnished the arguments against the constitutionality of the measure, and as usual he spoke with ability and precision.[7] Doubtless he found himself in an awkward position. He had ardently desired the organization of a real union; more than any other man he could be credited with the honor of forming the system which was now going into effect. But was the document which he had so ably defended in Virginia against the blasts of Henry's eloquence to be distorted by clever interpretation? We may assume his dislike of seeing nationalism and governmental authority attained by indirection; and if we think he was over-precise, we need to remember also that in Hamilton's deft, but not too delicate hands, the Constitution might be transmuted into a document quite unlike that intended by its makers.[8] Madison's opposition to Hamilton's ideas and proposals, an opposition which soon grew in intensity, has often been commented upon. He was now plainly drawing away from his companion in the recent titanic struggle for the establishment of a national government and an efficient union. In him those elements of the people who dreaded the extension of the governmental power and saw no need for banks or bonds, and who looked with foreboding upon a huge national debt, found an able and conscientious leader.

In full sympathy with Madison was the Secretary of State, a man with a strange and exceptional capacity for popular leadership, and with a decided objection to overhead government. It used to be not uncommon to attribute Madison's retirement from active co÷peration with Hamilton to the machinations or the uncanny influence of Jefferson. How much we can fairly ascribe to such influence, no one can say. But it is not quite fair to assume that, because Madison favored a strong government during days of disorder when the union seemed to be in process of disintegration, he could not, unless he were converted by secret and selfish counsels, have taken a stand against what appeared to be an extravagant and unexpected interpretation of governmental authority. The government was established; that was the salient fact; it had gone into operation; and no one can now find cause for wonder in discovering differences of opinion concerning constitutional construction. Some men, anxious to keep faith, or fearing, as many did, the rise of a dominating and dictatorial government, were not ready at once to acquiesce silently in the exercise of every power which the acute Secretary of the Treasury thought advisable. Madison's opposition was not an entirely new attitude or based on unreasoning jealousy or foolish foreboding. The Constitutional Convention had refused to grant even a restricted and limited power to create a corporation.[9] It would have been strange indeed, had Madison openly advocated under the Constitution a power which he knew the Convention had refused to consign to the new government.

The bank bill passed both houses in the early days of 1791, and was approved by the President (February 25). But before signing, Washington asked for the opinion of others, and this request brought forth two able state papers which presented two conflicting principles of constitutional construction. Jefferson, finding the bill unconstitutional, laid down the doctrine of strict construction; Hamilton advocated broad or liberal construction. Each paper may properly be considered the classical exposition of the respective theories set forth. All the ingenuity of later days fell short of discovering more cogent or adroit argument.

Jefferson quoted the tenth amendment and declared that the incorporation of a bank was not one of the delegated powers; it was not one of those specially enumerated powers; nor was it within the "general phrases" of the Constitution wherein authority is granted to impose taxes to provide for the general welfare and to make all laws necessary and proper for carrying the enumerated powers into execution. He pointed out that the general welfare clause bestowed on Congress power, not to do anything it might please to provide for the general welfare, but only to lay taxes for that purpose.[10] The necessary and proper clause he interpreted by an emphasis on "necessary"; all the enumerated powers could be carried into execution without a bank, and it was therefore not necessary and consequently not authorized. Bank bills might be a more convenient vehicle for payment of taxes than treasury orders; but a little difference in the degree of convenience could not constitute the necessity which the Constitution mentioned. In this last statement we find the dangerously weak link in his whole argument; if a government cannot use means which it considers suitable for exercising its powers, and if it cannot be guided by considerations of convenience and of ease in the management of its undoubted authority, then it is almost hopelessly restricted. For the captious critic might without difficulty find that any or every proposed measure is unnecessary and hence unconstitutional because some other measure or proceeding might be used. No government strictly confined by such a doctrine could function.

Hamilton's argument was a masterly exposition of the theories of a broad and liberal interpretation of the Constitution. His general conclusions were those on which the government has acted from its foundation and which are still supposed to be effective. He did not dare to announce what appears in these latter days to be the opinion of no inconsiderable number of people: that the federal government can legally do anything and everything thought to be for the general welfare. He did not deny, of course, that the government is one of enumerated powers. At the outset, the astute young Secretary laid down the principle, which he declared to be inherent in the very definition of government, "That every power vested in a 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 ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society."

The critical question concerned the right to erect a corporation; Hamilton contended, as it is "unquestionably incident to sovereign power to erect corporations," it is consequently incident "to that of the United States, in relation to the objects intrusted to the management of the government." In this portion of the argument he was approaching dangerously near to the idea that, if other governments had the power to establish corporations, the United States government must be supposed to have it. But he did not pass over into that forbidden territory. He found in the Constitution implied as well as express powers, and for the sake of accuracy he declared there were also "resulting powers", which he defined as those resulting from the whole mass of the powers of government and from the nature of political society.[11] "... necessary", he maintained, "often means no more than needful, requisite, incidental, useful, or conducive to.... The degree in which a measure is necessary, can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency." He then propounded his doctrine of implied powers in words that needed no addition in the future, when men defended liberal construction. Speaking of the test of the constitutionality of an act, he said, "This criterion is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority." [12]

These two doctrines or principles of constitutional interpretation underlay many of the debates and controversies in the decades that followed their first pronouncement. It is sometimes said that they constituted the continuing foundations and principles of parties; that the line of cleavage between contesting parties was the line marking off the advocates of broad construction from the defenders of the outer ramparts of narrow construction. But obviously such a generalization is not tenable. Devotion to either one of these doctrines, even if it seems to occupy a particular shrine and be worshiped by the faithful of a party, must at best be of secondary, not primary, importance; for men do not swear fealty to a mode of constitutional interpretation for its own sake; they do not bow down to an abstraction of constitutional law. Jefferson, for example, was a strict constructionist (at least part of the time), not because he was a narrow-minded technician, but because he had definite ideas of social needs and because he had a social philosophy. Hamilton wanted to do things; he was not primarily burning candles before the altar of a disembodied principle of constitutional interpretation. Parties, furthermore, have the qualities of a chameleon; they easily change color; and when a party is in power, things which shocked its constitutional conscience when it was in opposition appear harmless and beneficial. It is so easy to transfer the lares and penates of daily worship from one niche to another. Almost from the very beginning of the government the Constitution was vigorously defended both by those who believed that granted power should be used freely and by those who feared lest constitutional limits be exceeded; no one seriously criticized it. Both groups, differing in their opinion as to the limits of constitutional authority, buckled on the armor of orthodox righteousness in defense of the Constitution itself. All this, of course, was of tremendous influence in conserving, and, on the whole, in stabilizing constitutional government. This "worship of the Constitution", this apotheosis of a sheet of parchment, has often aroused the curiosity and the wonder of the outside world; but man must, it seems, worship something, and the American man soon paid reverence to the document which symbolized to him union, the product of stress and storm, a noble achievement of which he was fully prepared to boast. Debates and quarrels about construction of the Constitution made for permanency by lifting the document itself beyond the reach of ordinary party evaluation and beyond the assaults of malignant malcontents.

At the very beginning of the government Congress took up the task of establishing the judicial system. The framers of the Constitution had left to Congress a large measure of discretion. The general principles are laid down in the Constitution but the details are not given. The extent of the judicial power is stated in broad and comprehensive terms; the power is "vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish";[13] but the Constitution does not state the number of judges and does not make it obligatory on Congress to establish inferior courts. The task lay with Congress to work out a system of courts and to establish the system by law. The duty was one of great importance, and especially important was the task of designating the relationship between the state courts and the federal courts, a subject on which there had been considerable discussion in the past. The Judiciary Act, which is attributed chiefly to the skill of Oliver Ellsworth, was passed in September, 1789. It remained for over a century without vital alteration, and the more general and critical principles are still in force.

The Supreme Court, as established by the act, consisted of one chief justice and five associate justices. Thirteen districts were established, in each of which there was to be a district court.[14] Three circuits were provided for; in each was to be held a court consisting of any two justices of the Supreme Court and the district judge. To the district courts was assigned cognizance of crimes of an inferior order and they were given exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.[15] The circuit courts were to have original jurisdiction, concurrent with the courts of the states, of all suits of a civil nature at common law or in equity, where the sum involved was more than five hundred dollars, and the suit was between a citizen of a state in which the suit was brought and a citizen of another state. To the circuit courts was assigned exclusive cognizance of crimes and offenses cognizable under the authority of the United States, except where the act otherwise provided, and also concurrent jurisdiction with the district courts of criminal cases which might be there instituted. Provision was made for removal of causes from a state court to a circuit court under certain conditions.[16] Appeals might be made, by writ of error, from a district to a circuit court, and by like process from a circuit court to the Supreme Court.[17]

Of paramount significance are the provisions of the act concerning review by the federal Supreme Court of judgments and decrees of state tribunals. This subject, which is covered by section twenty-five of the act, was in later years the center of acute and bitter controversy. The Constitution does not explicitly grant to the federal judiciary any such right to examine, review, or affirm the decisions of state courts. The Judiciary Act established this authority in the following manner: a case could be carried to the Supreme Court for review (1) when a decision of the highest state court "in which a decision in the suit could be had" was against the validity of a treaty or statute of the United States, or an authority exercised under the United States; (2) when the validity of a statute of a state or an authority exercised by a state had been drawn into question on the ground of its being repugnant to the Constitution, laws, or treaties of the United States, and the decision of the state court be in favor of the validity; (3) when there was drawn into question the construction of any clause of the Constitution or of a treaty or statute of the United States, and the decision was against the title, right, privilege, or exemption claimed by either party.

An examination of this statement, which at first sight appears perplexing, shows that the purpose was to provide that a state decision could be carried to the Supreme Court for review only if the state court was charged with failing to give full effect to the Constitution, laws, or treaties of the United States. And this fact carries us back again to what I have called the chief problem of the critical period, the problem of finding a method by which there would be assurance that the states would fulfill their obligations. The obligation to uphold the Constitution and the structure of the union was specifically thrown upon state judges. But how could there be any certainty that the judges would not uphold a state law, even though it be contrary to the "law of the land", or would not deny to a litigant at the bar a privilege claimed to belong to him under the federal Constitution, law, or treaty? To establish such certainty, or at least to provide for such assurance as federal judicial oversight would furnish, the Judiciary Act included the system of review of state decisions.

The Judiciary Act does not indicate any objection to a decision by a state court refusing to recognize the validity of a federal statute; but it does provide for a review to test the legality of the decision; it seems, indeed, to take for granted that such a decision might properly be rendered, and from this we are led to conclude that the federal Supreme Court could agree with the state tribunal as well as disagree; therefore the Judiciary Act, even though it makes no specific declaration of the power, assumes the right of a court, either state or national, to declare congressional acts void. As this fundamental statute was enacted by men, some of whom had been active in the Federal Convention, we are entitled to gather from it evidence of the intention of the framers to recognize this important judicial power. That fact should be taken into consideration by those who even to-day question the constitutional right of any court to declare an act void, or, to use the words of James Otis of an earlier day, pass it "into disuse".[18]

[1] The office of attorney-general was provided for by the Judiciary Act of 1789. Among other duties the attorney-general was to be legal adviser to the president and the heads of departments. See H. B. Learned, The President's Cabinet, p. 105.

[2] See Barron v. Baltimore, 7 Peters 243 (1833). This is perfectly in accord with the general principles of constitutional construction and with the history of the proposal and adoption of the amendments.

[3] "Those who advocate a discrimination are for making a full provision for the securities of the former at their nominal value, but contend that the latter ought to receive no more than the cost to them, and the interest." Hamilton, "First Report on the Public Credit," Works (H. C. Lodge, ed.), II, pp. 236-237.

[4] It should be noticed that in his report he mentions that in countries in which the public debt is properly funded it answers most of the purposes of money: "... stock, in the principal transactions of business, passes current as specie." When one considers the monetary conditions of that day the advantage of stock that might thus pass current is obvious. He also points out that under the new government a principal branch of revenue "is exclusively vested in the Union;" and the states, for various reasons, would always be checked in the levying of taxes on articles of consumption.

[5] See Farrand, Records, II, p. 327; III, p. 361.

[6] The Pennsylvania convention at the time of adopting the Constitution, though eleven states had still to act, appointed a committee which actually reported on the proposal to cede to Congress a seat of government. See McMaster and Stone, op. cit., p. 430.

[7] He called attention to the rejection in the Convention of granting Congress the power of incorporation, declaring in addition: "It appeared on the whole that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristics of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the people; was condemned by the apparent intentions of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution." Quoted in D. R. Dewey, Financial History of the United States, pp. 99-100. See also Gaillard Hunt, The Life of James Madison, p. 202. It may be noticed that a quarter of a century later Madison signed the bill creating the Second Bank of the United States.

[8] In this connection the ruminations of a contemporary are illustrative. William Maclay, a Senator from Pennsylvania, filled with the suspicions and forebodings which were By no means peculiar to himself, wrote in his Journal, April 4, 1790: "Hence appears plainly how much the assumption of the State debts was made a point of by the court party. In fact, the reduction of the State governments was the object in theory in framing both the Constitution and the Judiciary and in as many laws of the United States as were capable of taking a tincture of that kind. But it won't do." Journal of William Maclay, p. 232. "... I clearly see," he wrote in 1791, "that the poor goddess of liberty is likely to be hunted out of this quarter as well as the other quarters of the globe." Ibid., p. 402.

[9] Madison, in the Convention, moved that Congress be given power " 'to grant charters of incorporation where the interest of the U. S. might require & the legislative provisions of individual States may be incompetent'." Farrand, Records, II, p. 615.

[10] "To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States...." Art. I, sec. 8, para. 1.

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers...." Art. I, sec. 8, para. 18.

This must be held to-day a position theoretically sound, though it sometimes seems as if the theory were lost in the mists of practical politics.

[11] Hamilton mentioned as an example of resulting powers the right of the United States to possess sovereign jurisdiction over conquered territory. Compare Marshall's opinion in The American Insurance Co. v. Canter, 1 Peters 511 (1828).

[12] Note the following from the opinion of the Court in Kansas v. Colorado, 206 U. S. 46 (1907): "The last paragraph of the section which authorizes Congress to make all laws which shall be 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 office thereof, is not the delegation of a new and independent power, but simply provision for making effective the powers theretofore mentioned." Ibid., 88. "But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But if no such power has been granted, none can be exercised." Ibid., 91-92. This case appears to repudiate the doctrine, which had certain advocates in the early twentieth century, to the effect that an object not within the competence of any one state is, in consequence, within the scope of federal authority.

[13] The absence of explicit provision for inferior courts is doubtless due to the uncertainty of the framers about the advisability of explicitness. Then there was a difference of opinion in regard to the need for any inferior courts. See the discussion in the Convention, June 5, 1787.

[14] There were then eleven states in the union. Each was made a district. Maine, then a part of Massachusetts, was also made a district, as was the Kentucky region, then a part of Virginia.

[15] Statutes at Large, I, ch. 20, sec. 9.

[16] The reader should notice that this does not refer to an appeal from a state court, but for removal of a cause at an early stage in the proceedings. Ibid., sec. 12.

[17] Ibid., sec. 22. The text above does not attempt to give in detail the extent and character of the jurisdiction prescribed by the statute; such portions of the act as appear especially important are selected.

[18] See C. A. Beard, The Supreme Court and the Constitution, where this subject is treated at length.


Terms Defined

Referenced Works