THE LAW OF LEGISLATIVE POWERS (II)
25. The powers of Congress, whether expressed or implied, are powers
incident to sovereignty, being essential to the existence of the
government which sovereignty has created. The principle is laid down in
_The Federalist_, that the government of the Union “must possess all
the means and have a right to resort to all the methods of executing
the powers with which it is intrusted.”[60] The immediate comparison
here is between the government of the United States and those of the
States. The federal government must possess powers as adequate for its
purposes as are the powers possessed and exercised by the particular
States. The principle is laid down by Hamilton yet more explicitly:
A government ought to contain in itself every power requisite to
the full accomplishment of the objects committed to its care,
and to the complete execution of the trusts for which it is
responsible, free from every other control but a regard for the
public good and to the sense of the people.[61]
This principle applies to both American governments,—that of each
State, and that of the United States. Each within its own jurisdiction
is supreme. This means that the national government possesses powers
adequate to the existence and efficient operation of such a government.
With this principle in mind, the exercise, by Congress, of its
powers becomes reasonably plain. The people of the United States are
a sovereignty; they have ordained and established the Constitution
of the United States. This Constitution is a plan of republican,
that is of representative, government. The powers granted by this
sovereignty to this government are adequate to the ends and purposes
of this government. Whence follows all our constitutional law: for the
constitutional law of the States cannot vary essentially from that
of the United States. The principle here is stated by Chief Justice
Marshall: “The Constitution, when thus adopted, was of complete
obligation, and bound the State sovereignties.”[62]
26. The powers of Congress are derived through this Constitution
and are adequate to the legislative needs of the government thus
created. Here again applies the principle as to proper legislative
powers: “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.” If this
principle be true (and it lies at the basis of government in America),
it seems unnecessary that the Constitution should specify, or enumerate
the powers of Congress. These which are enumerated may not be said
to be in any logical order. Doubtless the qualities of sovereignty
are equal qualities—each essential to the supreme end and purpose of
sovereignty—which end and purpose is to be and to remain sovereignty.
27. But to Congress and to the State Legislatures powers are granted.
Does the grant of powers to Congress extinguish the grant to the State
Legislatures? Here, again, Hamilton states the principle:
An entire consolidation of the States into one complete sovereignty
would imply an entire subordination of the parts; and whatever
powers might remain in them, would be altogether dependent on the
general will. But as the plan of the Convention (“of 1787”) aims
only at a partial union or consolidation, the State governments
would clearly retain all the rights of sovereignty which they
before had, and which were not, by that act, exclusively delegated
to the United States. This exclusive delegation, or rather, this
alienation, of State sovereignty, would only exist in three cases:
where the Constitution in express terms granted an exclusive
authority to the Union; where it granted in one instance an
authority to the Union, and in another prohibited the States from
exercising the like authority; and where it granted an authority
to the Union, to which a similar authority in the States would be
absolutely and totally contradictory and repugnant.[63]
The implication of the extinguishment of the powers of the State
Legislature by the powers of Congress can arise only where exercise of
State authority is “absolutely and totally contradictory and repugnant
to the power delegated to Congress.”[64] Therefore “where the authority
of the States is taken away by _implication_, they may continue to
act until the United States exercise their power, because until such
exercise there can be no incompatibility.”[65] The principle here
laid down is illustrated by laws fixing the standard of weights and
measures; bankruptcies; counterfeiting the coin and securities of the
United States; copyrights and patent rights. If Congress legislates
on these subjects, such legislation excludes State legislation in
conflict with it. In the absence of congressional and in the presence
of State legislation, on these (and some other subjects falling in
the same class) the respective State legislation is supreme within
the jurisdiction of the State.[66] Stated in a different way, this
principle of American constitutional law would read,—the mere grant to
the federal government of power over a subject does not necessarily
extinguish State authority over the same subject. Thus the State has
power by common law, or by statute, to fix a standard of weights and
measures. The issue here is not one merely of authority but of relative
authority. The exercise of authority by Congress is not, by that fact,
prohibition of exercise of authority by a State. This exercise is
radically different from that of legislation on coining money, making
treaties, granting titles of nobility, issuing letters of marque and
reprisal,—or any other subject over which Congress has exclusive, and a
State no jurisdiction. Here the question is one of exclusive, or sole
authority. Thus, State Legislatures have authority to pass bankrupt or
insolvent laws, provided there is no act of Congress, on the subject,
in force establishing a uniform system of bankruptcy conflicting with
the State law, and, further, providing that the State law does not
impair the obligation of contracts.[67]
28. But State insolvent laws apply to contracts within the State
between one of its citizens and a citizen of another State, and they
do not apply to contracts not made within the State. The principle
here is one of jurisdiction: no State has authority outside its
own jurisdiction. Therefore interstate matters are beyond State
jurisdiction and are exclusively under the control of Congress. This
principle is expressed judicially: “Insolvent laws of one State cannot
discharge the contracts of citizens of other States because they have
no extra-territorial operation.”[68]
29. Congress exercises any of its powers as an agent of its sovereign,
the people of the United States. These powers, like those of the
President, or of the federal courts, are expressed or implied; the
government of the United States is “a national government with
sovereign powers, legislative, executive, and judicial.”[69] Because
this government is a sovereign government it possesses the choice of
means to make its sovereignty real. Hence it possesses power to pay the
debts of the United States, to borrow money, to incorporate banks, to
coin money, to make war, and to do whatever acts it considers necessary
and proper, and in such manner as it sees fit,—all acts of sovereignty.
It alone can determine what is a legal tender, what the value of coins,
domestic or foreign (within its jurisdiction) and, in brief it can do
all acts such “as accord with the usage of sovereign governments.” Thus
the national currency may be coin or paper, as Congress shall regulate.
Whatsoever Congress by legislation declares to be a legal tender in
payment of debts between individuals or corporations is thereby a legal
tender, because Congress is “the legislature of a sovereign nation”
and is expressly empowered by the Constitution to enact laws of the
kind.[70] This power is commensurate with the jurisdiction of Congress
in this matter,—a power which absolutely and totally excludes the power
of the several States.
30. As a matter of constitutional law, it must be admitted that,
granting the national sovereignty of the people of the United States,
it must follow that the legislature of this sovereign nation would
possess such power over currency and coinage. That is, the power would
be _implied_ if it were not expressed. It is the office or function
of a supreme national government to legislate for national ends and
purposes.[71]
But the principle of national sovereignty which operates in
Congressional legislation on money, currency, coinage, and legal
tenders, does not nullify the principle of contracts. A lawful
contract between parties that calls for payment of a particular article
with a particular article, be it silver coin, gold coin, national
bank notes, treasury notes, reserve bank issues, or subsidiary coin,
is satisfied only when executed in the terms of the contract. The
obligation of the contract would be impaired if it were executed
otherwise than as the contract itself sets forth.[72]
31. Congress is not under contract to coin money, to pay the debts of
the United States, or to borrow money in any particular way. Duties,
excises, and imports must be _uniform_ throughout the United States,
and this condition is a fundamental limitation. No limitation is placed
by the Constitution on the power of Congress over the currency. This
power is supreme. It is a power which, duly exercised, secures the
existence of sovereignty itself.[73]
A function of sovereignty is performed in the issuing of a bill of
credit, the sovereign power thus pledging its faith, and the thing
issued is designed to circulate as money. The State, or Commonwealth,
in the Union, is not a sovereign for this purpose, as the Constitution
provides.[74] So when a State incorporates a bank, which issues
bills of credit, the act of the bank is not an act of sovereignty,
and the State, though a stockholder in the bank, imparts none of its
sovereignty to the bank. The bank as a corporation, not the State as
an incorporator, is answerable for the obligations of the bank.[75] To
constitute a “bill of credit,” in the meaning of the Constitution, it
must be issued by a State, on the faith of the State and be designed to
circulate as money.[76]
32. Power to provide for the punishment of counterfeiting the
securities and current coin of the United States is specially delegated
to Congress,[77] but it is not denied to the several States. The
power to coin money belongs exclusively to Congress[78] as a mark
and necessary incident of sovereignty, but counterfeiting the coin
constitutes an offense against both the State and the United States.
The uttering of counterfeit coin is a cheat, and the State can protect
its citizens against fraud by exercise of its police power. Such
offenses fall strictly within State jurisdiction. Counterfeiting
debases the coin, throws spurious and base metal, or false securities
into circulation, and is an offense against that constitutional power
which is exclusively authorized to create a currency for public uses.
The offense is against the sovereignty of the nation, and, being a
fraud, it is against the sovereignty of the State. In either case it
imperils sovereignty.[79]
33. The power of Congress to establish post offices and post roads is
not an exclusive power, for the States are not prohibited to legislate
on the same subject. But Congress has unlimited power over it and may
designate what may be included in and what may be excluded from the
mails. This exercise is doubtless of the police power. It does not
follow that congressional establishing and regulation of post offices
and post roads mean that Congress has power to deal with crime or
immorality within a State in order to maintain that it possesses the
power to forbid the use of the mails in aid of the perpetration of
crime and immorality. So a postal law of Congress excluding lottery
tickets from the mail is not an abridgment of the freedom of the press.
Congress, by reason of the nature of its functions, is empowered to
determine what shall and what shall not be carried in the mails, and
the right of freedom of speech does not give the right to injure the
objects or to defeat the purposes which government is ordained and
established to further and protect.[80] But the State, in exercise of
its police power, may undoubtedly protect its citizens from injury
springing out of that intercourse known as the mail service so long as
it is wholly intrastate,—that is, within its jurisdiction.
34. Copyrights and patent rights are privileges granted by Congress for
a term of years and are strictly statutory—for the United States has
no common law. The States may exercise their powers in like manner,
subject to the essential condition that the Constitution is the supreme
law of the land. Copyrights and patent rights are examples of rights
which exist by act of Congress,[81] but the right thus created does not
annul the ordinary police power as put forth in the police regulations
of a State. The person owning or controlling either copyright or
patent right is not thereby empowered to defy the laws of a State as
respecting the sale of the article in which or over which he has the
exclusive right. The article itself may be adjudged injurious to the
public and, therefore, by police regulation, forbidden to be sold or to
be exposed for sale in the State. The patent right prevents others than
the inventor from participating in the fruits of his invention, without
his consent; but the exercise of the right must be in subordination to
the police regulations of the State, otherwise, “a person might with
as much propriety claim a right to commit murder with an instrument,
because he held a patent for a new and useful invention.”[82] It may
be accepted as a principle that “patent laws do not interfere with
the power of a State to pass laws for the protection and security of
its citizens, in their persons and property, or in respect to matters
of internal polity, although such laws may incidentally affect the
profitable use or sale by a patentee of his inventions.”[83]
35. The power of Congress, expressly delegated to it, “to define and
punish piracies and felonies committed on the high seas, and offenses
against the law of nations,” is not exclusive. The States are not
prohibited from legislating on the subject. Offenses committed within
the jurisdiction of a State are punishable by State laws. Such offenses
are punishable by common law. If there is no act of Congress covering
the offense, then the United States has not assumed jurisdiction. But
absence of a specific mention or definition of the offense does not
invalidate a claim of jurisdiction when the result of the offense
is piracy. Piracy is robbery committed within the jurisdiction of
the admiralty,[84] but an offense that effects piracy, though not
technically robbery, is piracy.[85] As piracy is an offence against
the law of nations, and not strictly against domestic municipal law,
it falls within the jurisdiction of the admiralty—a jurisdiction over
which the judicial power of the United States is expressly extended by
the Constitution.[86] This jurisdiction is not exclusive as provided
for by the Constitution. Practically, however, the States do not
legislate on the subject, unless it be to provide for the execution of
their police power over their own waters.
36. The “admiralty jurisdiction” of the United States is co-extensive
with its authority over or on waters, fresh or salt, including the
high seas, the Great Lakes, and rivers and streams commerce over
which it has power to regulate. Thus this jurisdiction is over the
American ship wherever it may be. “Offenses committed on vessels
belonging to citizens of the United States, within their admiralty
jurisdiction (‘that is within navigable waters’) though out of the
territorial limits of the United States, may be judicially considered
when the vessel and parties are brought within their territorial
jurisdiction.”[87]
37. The war power is possessed by Congress exclusively,[88] for
the limitation of the States as to declaring war can be construed
only as an exclusive delegation of this power to the United States.
The exercise of this power is a sovereign act and may consist in a
formal declaration of war, or a formal recognition or declaration
of a state of war. War existing by such regulation, the President,
as commander-in-chief of the army and navy, and of the militia of
the several States when called into the actual service of the United
States, is bound by his oath faithfully to execute his office—which
is to execute the laws of the United States. It is for the President
to determine how to execute his office; that is a political, not a
judicial question. “He must determine what degree of force the crisis
demands.” He must decide the character of the opposing forces, whether
they are belligerents, or of some other character. He may close ports
or declare a blockade of the enemy. He possesses the whole executive
power of the United States. Ratification of his acts though _ex post
facto_ are constitutional,—fundamentally because sovereignty having
vested the executive office in a President, and he having performed
its duties to the best of his ability, refusal to consider his acts as
constitutional would be repudiation by sovereignty of an act which had
been done by its authority.[89]
38. The word “State” in the Constitution refers to a State of the
Union.[90] For while the Constitution was made, “ordained and
established by the people of the United States for themselves,”[91]
it was made for the people of the United States in States. Thus it
follows that over a domain not constituting a State, that is, over a
domain consisting of a ceded district, or a territory, or an outlying
possession, Congress has sole jurisdiction. Only the United States
and the several States possess sovereignty. No State, or a member of
the Union, has jurisdiction over the district and there is no other
American government than Congress to exercise it. “Territory” like
property by common law must have an owner; if it is self-owned and
self-governed, it is sovereign; otherwise it is a subject or possession
of sovereignty. It follows, as to American constitutional law, that
subdivisions of States are wholly within State jurisdiction: Congress
having no jurisdiction over counties or cities other than as, in a
general way over matters, Congressional legislation affects counties
and cities as parts of States throughout the United States.[92] And
unless a State has ceded its jurisdiction over a district within its
borders, it has full authority to levy taxes, to execute its inspection
and other police laws and regulations within that district. Thus Kansas
ceded the Ft. Leavenworth Military Reservation to the United States in
1875, but the deed of cession granted no more than use of the land as
a military post; the State, therefore, could levy and collect taxes
within this area, having never parted with the sovereign right to do
so.[93] And any other powers or rights of the State, over this area,
not explicitly granted to the United States by Kansas in the deed of
cession remain intact in the State; its original jurisdiction as a
State, save as explicitly modified by that deed, remains.
39. The power of Congress to govern territory, implied in the right
to acquire it, and given to Congress in the Constitution,[94] to
whatever other limitation it may be subject, the extent of which
must be decided as questions arise, does not require that body to
enact for ceded territory, not made a part of the United States
by Congressional action, a system of laws which shall include the
right of trial by jury, and that the Constitution does not, without
legislation, and of its own force, carry such right to territory so
situated.[95]
The principle laid down by the Supreme Court recognizes two kinds or
classes of ceded territory: one, “made a part of the United States
by congressional action,” that is, incorporated into the United
States; the other, unincorporated. While congressional authority over
either class is supreme, when the Constitution and laws of the United
States are extended by Congress over a territory, they cannot be
withdrawn,[96] for if the Constitution could be withdrawn directly it
could be nullified indirectly by acts passed inconsistent with it. The
Constitution would thus cease to exist as such and would become of no
greater authority than an ordinary act of Congress.[97] The decision
of the Court as to the power of Congress over territory of the United
States makes Congress absolute in the exercise of its power. The Court
does enumerate the limitations on Congress, in such control, but leaves
each limitation to be determined as the issue involving it shall
arise.[98] The safeguard against congressional absolutism is thus
expressed by the Court:
There are certain principles of natural justice inherent in the
Anglo-Saxon character, which need no expression in constitutions
or statutes to give them effect, or to secure dependencies against
legislation manifestly hostile to their real interests.[99]