THE LAW OF LEGISLATIVE POWERS (1)
13. The organization of the government of the United States reflects
the original and supreme will of the people as they have seen fit to
assign to different departments of that government their respective
powers. “The powers of the Legislature are defined and limited;
and that these limits may not be mistaken, the Constitution is
written.”[32] Thus the Constitution declares that “all legislative
powers _herein granted_” are vested in Congress.[33] The inevitable
conclusion is “no grant, no power.” Congress possesses only delegated
powers. If an issue arises under an act of Congress, there must ever
be the fundamental question of authority for the act. This question
of authority once settled, the act, by the terms of the Constitution
itself, is a part of the supreme law.[34] Rarely is an act of Congress
declared unconstitutional. Legislative experience avoids the enactment
of laws whose constitutionality is doubtful.
14. The general American doctrine is of the separation of delegated
powers, and is commonly set forth in State constitutions.[35] Such
separation of powers is not expressly declared in the Constitution
of the United States; the principle here is of limitation no further
than is necessary for the protection of each department of government.
Fundamentally it is a question of functions. Whatsoever authority
is necessary and proper for a department of government to exercise,
belongs to that department. The separation of powers,—legislative,
executive, judicial,—is a matter of agreement or convention made
by the sovereign. Government is a _unit_, not a tripartite machine
or device. But in order to administer government, and make it, as
the business man would say, “a going concern,” it is conceived and
organized into departments. Sovereignty in America vests legislative
power, so far as the people of the United States have delegated that
power,—in Congress. The Constitution does not specify all the powers
so delegated. Such specification is impossible. Such specification
“could scarcely be embraced by the human mind”; its details “would
partake of the prolixity of a legal code.”[36] The practical procedure
is followed in the Constitution of selecting general—that is, large,
comprehensive powers, or groups of powers, and authorizing Congress to
exercise them. As a matter of practical government, had the American
people chosen to declare in the Constitution that Congress shall have
power to make all laws necessary and proper for the government of
the United States, the grant would be essentially the same as that
made by naming the powers of Congress in that instrument. The powers
delegated to Congress are mentioned chiefly in the eighth section of
the first article of the Constitution. In other parts of the same
article other powers of Congress are declared, such as the power of
each House over its members; to choose a presiding officer; the power
of the Representatives to impeach; of the Senators to convict,—or try
impeachments, and the respective powers of the Houses, under some
circumstances, to elect a Vice-President, or a President,—and other
powers, as of proposing amendments.[37]
15. The powers of Congress, delegated to it as a whole, or to its
respective Houses, and largely regulative of congressional membership
and procedure, may be described as necessary parliamentary powers,
excepting the powers of the respective Houses in the selection of
President and Vice-President. Parliamentary powers are functions
essential to the efficiency of a legislative body, and they were
worked out, largely, before and during colonial times. Such
parliamentary functions were exercised by the British Parliament and by
State Legislatures prior to the making of the Constitution. Indeed, the
provisions respecting such powers, in the State constitutions from 1776
to 1787, were the immediate precedents for them in the Constitution
of the United States.[38] But when we speak of the legislative
powers vested in Congress, we do not mean, commonly, these strictly
parliamentary powers; rather do we mean another group or class of
powers included under such headings as “taxation,” “money,” “commerce,”
“banking,” “the army,” “the navy,” “territory,” and others of notable
rank. Such powers as those indicate (or seem to indicate), a larger
delegation of authority to Congress than its authority to regulate its
membership. Whatever may be thought of the relative rank of the powers
of Congress, all emanate from the same source, “the people of the
United States.”
16. In determining the nature and extent of these powers, we are aided
by the Constitution itself which sets limitations. Thus,
all duties, imposts, and excises shall be uniform throughout the
United States.[39] The privilege of the writ of _habeas corpus_
shall not be suspended unless when in cases of rebellion or
invasion the public safety may require it.[40] No bill of attainder
or _ex post facto_ law shall be passed.[41] No tax or duty shall be
laid on articles exported from any State.[42] No preference shall
be given by any regulation of commerce or revenue to the ports of
one State over these of another; nor shall vessels bound to or from
one State be obliged to enter, clear, or pay duties in another.[43]
No money shall be drawn from the treasury but in consequence of
appropriations made by law; and a regular statement and account
of the receipts and expenditures of all public money shall be
published from time to time.[44]
In addition to these limitations, there are limitations set forth in
the first ten, in the thirteenth, fourteenth, and fifteenth amendments.
These amendments, in the aggregate, deny to Congress authority to
violate what we commonly designate as fundamental rights. In other
words, the people of the United States have given Congress no power
whatever to imperil these rights: they are excepted out of the
government of the United States.[45]
17. In the several States a like limitation of the powers of the
Legislature is made in the constitutions. A typical statement of this
limitation may be found in the constitution of Pennsylvania, in the
last clause of the Declaration of Rights:
To guard against transgressions of the high powers which we
(“the people of the Commonwealth”) have delegated, we declare
that everything in this article (“the Declaration of Rights”) is
excepted out of the general powers of government and shall forever
remain inviolate.[46]
The discrimination here is between government and sovereignty by means
of a clear limitation or denial of powers. Thus the carefully guarded
fundamental rights are sovereign, not governmental rights. That the
sovereign has the right or power to delegate any of these fundamental
rights, or the control over them is a question in political science.
That the sovereign, in the modern republic, has not so delegated them,
is indisputable. Yet, in 1913 the people of the United States ratified
the Sixteenth Amendment, namely, that “The Congress shall have power to
lay and collect taxes on incomes from whatever source derived, without
apportionment among the several States and without regard to any census
or enumeration.”[47] This amendment more nearly identifies government
with sovereignty than any other in the Constitution. It removes
limitations on the power of Congress with respect to what is commonly
called “direct taxation.” It makes Congress practically sovereign in
its power to impose such taxation and to collect such taxes. It does
not require that direct taxes, like indirect taxes, shall be “uniform
throughout the United States.” It is the first departure in America
from the doctrine of limited government.[48]
18. Of the powers delegated to Congress by the American people it may
be said that, save as excepted by the silence of the Constitution,
or by positive limitation, they are universal and affirmative. Their
extent as well as their nature are made known by interpretation,—that
is, through the judiciary.[49] Judicial interpretation must be
distinguished from economic, industrial, political, or even moral
interpretation. The Constitution provides only for judicial
interpretation.[50] The American people have vested legislative powers
in Congress, and the exercise of them by Congress must be measured
by the terms of the grant.[51] Thus far the supreme test of the
constitutional exercise of these powers is to compare the particular
act of Congress with the Constitution. Shall the act overrule the
Constitution, or shall the Constitution overrule the act? This is
the final test of congressional exercise of powers delegated; it
is the essential measure of federal legislation. Practically it
is congressional legislation which, sooner or later, brings out
clearly,—or at least as clearly as the government of the United
States can bring out,—the real nature of that government. Thus it is
congressional legislation which, as tested in the courts of law, brings
into view the implied and inherent powers of the federal government;
the relations of that government with the States, and the powers of
that government as to territories and outlying possessions.[52] So,
too, it is congressional legislation that determines the objects and
the extent of taxation, both direct and indirect; that regulates
commerce, coins money, and fixes its value; affords equal protection
to citizens, and applies the police power of the United States. It is
congressional legislation which largely determines the jurisdiction
of federal courts and assigns duties and powers to the President.[53]
In brief, the legislative powers vested in Congress reflect the
convictions of the people of the United States of the eighteenth
century, when the trend of political thought was to dethrone kings and
to enthrone legislatures, with basic regard for individualism. A like
tendency and regard are discernible in the State constitutions of that
period. The American people did not create an omnipotent Congress,
but they created a Congress having few limitations and these they
practically nullified by the “sweeping clause” which empowers Congress
“to make all laws which shall be necessary and proper for carrying
into execution,” the powers granted, “and all other powers vested by
this Constitution in the government of the United States, or in any
department or officer thereof.”[54]
19. The phrase “necessary and proper” practically includes all the
purposes of government, and these the Constitution itself sets forth, as
To form a more perfect Union,
To establish justice,
To insure domestic tranquillity,
To provide for the common defense,
To promote the general welfare,
To secure the blessings of liberty
to themselves (“the people of the United States”) and their
posterity.[55]
This exercise of power by Congress is essentially _political_, and
Congress alone is judge of “the choice of means and is empowered to
use any means which are in fact conducive to the exercise of a power
granted by the Constitution.”[56] This conclusion is inevitable. A
legislative body could exist on no other principle. Thus it follows
that necessity is supremacy, in the case of congressional legislation.
To any understanding of American constitutional law, comprehension of
this principle is fundamental.
20. May Congress abuse its powers? Possibly. The remedy is through
popular election of members of either House, and repeal of the laws
which—even though their constitutionality be sustained by the courts,
may, in the judgment of the people, transcend limits popularly supposed
to be placed on Congress. Thus there are two checks on congressional
legislation: the courts of law and the votes of the people. It follows
that the American sovereign—the people—may by their votes approve or
condemn congressional legislation—approval or condemnation resulting in
a continuance or a change of membership of Congress, in conformity to
the relative strength of political parties. It is here that part of the
unwritten constitution is disclosed. The written Constitution contains
no reference to political parties, but actual government in the United
States is by and through political parties who, as organized agencies
of the public mind, give expression, in large measure, to the unwritten
constitution. Interpretation of the Constitution, and of course, of
the powers of Congress, is largely interpretation by political parties.
21. Two interpretations of the Constitution have evolved in America,
the strict, or literal, commonly called the Jeffersonian, and the
liberal, or interpretation according to the spirit of the Constitution,
commonly called the Hamiltonian. Chief Justice Marshall was a
disciple of Hamilton and enthroned his ideas in the decisions of the
Supreme Court for thirty years, and these the first thirty years of
the existence of the Court. Later judges, whatever their politics,
have rarely departed from the course of interpretation laid down by
Marshall. To what extent the political convictions of a judge determine
his judicial decisions, and to what extent party doctrines find
utterance in the decisions of courts of law are matters of opinion
quite as diverse as the men who hold them. Yet, in order to understand
American constitutional law it is necessary also to be familiar with
American political and constitutional history. Without that history,
that law lacks background and circumstance.[57]
22. In attempting, then, to understand the legislation of Congress,
which is an exercise of delegated powers, it is also necessary to
know the history of the times in which it was enacted. Thus the first
ten amendments were added in response to a quite unanimous demand of
the American people for what they considered at the time, 1789, an
adequate protection of their fundamental rights. The Eleventh Amendment
of 1798 grew out of the unwillingness of the people that a State
should be made defendant in a federal court at the suit of a citizen
of another State; therefore federal jurisdiction in such cases was
denied. The Twelfth Amendment of 1804 was added to remedy a defect in
the Constitution in the method and procedure of choosing the President
and the Vice-President. The Thirteenth, Fourteenth, and Fifteenth
Amendments, of 1865, 1868, and 1870, were added because of the negro
race. The Sixteenth and Seventeenth Amendments, of 1913, were added
after long agitation over direct taxation and the popular election
of senators of the United States, the one essentially an economic,
the other, a political question. The history of the times records how
these amendments were brought about. So too does that history largely
explain the legislation enacted by Congress by authority of these
amendments.[58]
23. The essential fact as to the powers of Congress is of their
limitation. Turning to the Constitution itself, one will find that
it devotes nearly three times as much matter to legislative as to
executive power; and nearly eight times as much matter to legislative
as to judicial power. Doubtless this spatial distribution of powers (or
limitation of powers) tells the whole story. Government is largely an
affair of legislation. Essentially, government is the public business,
controlled and administered for public or general purposes. Government,
in a republic, may be said to express itself in laws. So important
is this expression of the will of the sovereign, constitutional law
consists almost wholly of the interpretation of legislation. This means
that the principles of government are to be learned chiefly from the
judicial decisions in particular cases; and this again means that the
particular law having in due course come before the tribunal, that
law, when tested by the supreme law of the land is sustained, or is
declared to be without authority,—hence it is unconstitutional. In the
final test, all legislation of Congress must stand the strain of this
question: By what authority is this law made? We come then, sooner or
later, in congressional legislation, to the supreme law of the land and
to sovereignty in America,—“We, the people of the United States.”
24. It is a presumption of law, necessary in the conduct of government,
that all acts of Congress are constitutional until pronounced
unconstitutional by a competent judicial tribunal. An issue arising
between parties involves a law. In deciding the issue the tribunal
decides as to the constitutionality of the law, provided its
constitutionality forms part of the issue. Unless the issue of the
constitutionality arises and is before the tribunal, that body can make
no decision respecting the constitutionality of the law. Thus whether
or not the powers exercised by Congress, as expressed in a piece of
legislation—exceed the powers granted to it by the Constitution is a
question which Congress itself is powerless to decide. The Constitution
itself does not so declare; on the other hand it does not provide that
Congress shall be the final judge of its own powers. The principle
regulative of the exercise by Congress of powers delegated to it is
laid down by the Supreme Court:[59] “Let the end be legitimate, let
it be within the scope of the Constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the Constitution,
are constitutional.”