A Constitutional History of the United States Chapter XVI - Organization of the Government. byMcLaughlin, Andrew C.
HAMILTON'S FINANCIAL POLICY. IMPLIED POWERS. THE JUDICIAL
SYSTEM.
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 coöperation 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.
