THE LAW OF LIMITATIONS
134. The government of the United States, as also that of each State,
is a government of limited powers. In our day we speak of either
government as one of _limitations_; in the eighteenth century the
equivalent expression was “checks and balances.”[352] Fundamentally,
American constitutional law is the law of constitutional limitations.
These limitations confront us at whatever point we consider American
law and government. Sovereignty,—the people of the United States,
or the people of a State,—has never delegated all its powers to
government, and never any of them without limitations.[353] Written
constitutions are limitations of delegated powers. But powers
delegated to what we commonly call a department,—as the legislative,
the executive, or the judicial,—are sufficient for the necessary and
proper performance of the functions (or as constitutional law would
say, “execution of the office”) of the department. This concept of the
nature of the grant of powers is fundamental; on no other concept of
power can government in America be operated.
It remains then to know the scope and character of these checks and
balances,—these limitations,—which, however obscure, distinguish
constitutional law and government in America. In the federal system,
the government of the United States is balanced against that of the
States, the office, or function of the one, operating as a limitation
on the office or function of the other. This, unquestionably, is the
essential, or principal limitation in the American civil system. It
discloses itself in the frequent question whether a public service
shall be done by the United States or by the State,—touching such
matters as public health, public safety, public morals, commerce,
labor, and others. Here there always is the question of authority,
whether it is State or federal, and, if any, to what extent? And if
there is limitation, is it of State authority by federal, or of federal
authority by State,—or, is it of both by fundamental limitations?
Passing the mutual limitation of the two governments, we come to
limitations of each, and these limitations are similar. Powers of the
Senate counterbalance powers of the House; powers of the Legislative
counterbalance those of the Executive; powers of the Judicial
counterbalance powers of the Executive and the Legislative. If the
President nominates, the Senate may refuse to conform; if he negotiates
a treaty, the Senate may refuse to ratify it. If President or federal
Judge fails to execute his office, the House may impeach, and the
Senate convict of “high crimes and misdemeanors.” If members of Senate
or House fail to satisfy their constituents, these may elect other men
as their successors. No office in the American system of government is
for life, though it may be for good behavior. Lincoln states the whole
case:
By the frame of government under which we live, this same people
have wisely given their public servants but little power for
mischief; and have, with equal wisdom, provided for the return of
that little into their own hands at very short intervals. While
the people retain their virtue and vigilance, no administration by
any extreme of wickedness or folly, can very seriously injure the
government in the short space of four years.[354]
135. Of checks on the Executive there are three: concerning his
election; concerning his powers, or office, and concerning his
removal from office. He is elected by a few persons, technically
called “electors.”[355] Each State appointing as its Legislature may
direct as many “electors” as the whole number of its Senators and
Representatives to which it is entitled in Congress. Popular election
of these “electors” is, in constitutional law, their appointment by
the State legislatures. The so-called popular vote is unknown to the
Constitution.[356]
The method of deciding disputed presidential elections, provided in
the Constitution, was modified by adoption of the Twelfth Amendment
in 1804. The Amendment means that if the decision is not made by the
presidential electors by a certain time, the election shall go to the
House of Representatives, in case of the President; and to the Senate,
in case of the Vice-President. The vote in the House is by States;
the Senators represent States. Thus the States, at a critical time,
become the check on the United States in the selection of President and
Vice-President.
That the President (and by implication, the Vice-President) must
be native-born American citizens is a constitutional limitation of
candidacy.
136. Of limitation of executive powers, the exception of the pardoning
power in cases of impeachment, and of command of the State militia
save when called into the actual service of the United States[357]
are specified,—or, as commonly stated in legal language,—“expressed,”
not “implied.” So too is the limitation of the President’s appointing
power during recess of the Senate,—the appointee’s commission expiring
“at the end of the next session.”[358] What limitations of executive
power are implied in the Constitution is largely a matter of political
interpretation. The practical question here is of confusion of
functions, or offices. Thus the Executive may not exercise legislative
or judicial functions. This conforms to the theory of separation
of governmental functions expressed or implied in every American
constitution.
Yet Congress may impose duties upon the President which are essentially
legislative, as, for example, by empowering him to suspend, by
proclamation, the collection of duties on articles from a nation which,
by reciprocity, has suspended collection of duties on certain imports
from the United States. Does the President in such a case transcend
executive office?
The true distinction is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall
be,—and conferring authority, or discretion as to its execution, to
be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made.[359]
A very large proportion of the bills presented to Congress originate in
the executive department. But Judge Ranney’s distinction (stated above)
expresses the essential difference: it is Congress that determines
what the law shall be. The bill, or measure, proposed, may come from
a private citizen, or a State Legislature, or a railroad directorate,
or the War Department, or a Committee of the House, or from some other
source: it is Congress alone that can make it law. There is, however,
a powerful check on the Executive as suggesting legislation: the check
of public opinion, of custom, of precedent. These and like checks are
sometimes called the limitations of the unwritten constitution.
137. The third check on the Executive is of removal from office for
cause, by impeachment, in which procedure the House, the Senate, and
the Chief Justice of the United States have definite offices.[360]
Practically this check is utilized on political grounds; therefore
it cannot be measured strictly as a process in law, although it is
under a procedure distinctively in constitutional law. The check on
the election of the Executive is essentially political, but that on
the pardoning power, and on the command of the State militia is not
political: yet all these checks, or limitations, are constitutional.
138. The constitutional limitations of the power of Congress,—checks on
federal legislative power,—include term of service, qualifications for
office, and authority in legislation. The large limitation is of term
of service: six years for Senators; two years for Representatives. The
people of the United States delegate legislative powers to Congress
for a limited time. In an absolute monarchy there is no legislative,
nor is there a time limit on the monarch as law-maker. Lincoln touched
the vital spot when he said that the people have given their public
servants but little power for mischief, having provided for the return
into their own hands at very short intervals what little power they
have delegated. Were Congress a corporation, with perpetual charter,
and filling vacancies in its membership, it would, for practical
purposes, exercise the office of sovereignty and would exercise power
without limitation. The delegation of legislative power by the people
of the United States is not to Senators or to Representatives, but to
Congress, consisting of a Senate and a House of Representatives, and
organized and proceeding according to the Constitution. The question
in America is not alone, What will Congress do? but also, What can
Congress do?
139. The expressed limitations of the power of Congress are that
(1) All duties, imposts, and excises shall be uniform throughout the
United States.[361]
(2) No appropriations of money to raise and support armies shall be for
a longer period than two years.[362]
(3) Militia officers must be appointed by the respective States.[363]
(4) No bill of attainder or _ex post facto_ law shall be passed.[364]
(5) No tax or duty shall be laid on exports from any State.[365]
(6) No discrimination shall be made as to ports of entry or the
regulation of shipping.[366]
(7) No title of nobility shall be granted by the United States.[367]
(8) Neither House, during the session of Congress, shall, without the
consent of the other, adjourn for more than three days, nor to any
other place than that in which the two Houses shall be sitting.[368]
(9) Revenue bills shall originate in the House of Representatives.[369]
(10) No Senator or Representative, during the time for which he is
elected, can be appointed to any civil office under the United States,
which shall have been created, or the emoluments of which shall have
been increased during such time; and no person holding any office
under the United States shall be a member of either House during his
continuance in office.[370]
(11) No act of Congress concerning treason can provide for conviction
“unless on the testimony of two witnesses to the same overt act, or on
confession in open court.”[371]
(12) A bill of attainder of treason is not a bill of attainder, but
no bill of attainder of treason shall work corruption of blood, or
forfeiture except during the life of the person attained.[372]
(13) A new State cannot be erected within the jurisdiction of another
State, or be formed by the junction of two or more States, or parts of
States, without consent of their respective legislatures.[373]
(14) The power of Congress to make rules and regulations respecting the
territory or other property belonging to the United States cannot be
exercised so as to prejudice the claims of any particular State.[374]
140. While the limitations thus far cited are specific and expressed,
they go less to the fundamentals of government and civil rights than
do other limitations expressed in the Constitution, and notably in the
Amendments.[375]
It is not unusual that a State constitution declares that to guard
against transgressions of the high powers of government delegated
by the people through them, everything in the article, commonly
known as the Bill of Rights, is excepted out of the general powers
of government, and shall forever remain inviolate. The first ten
Amendments of the Constitution are its Bill of Rights, and are a
limitation not only of legislative powers but also of executive powers
vested in the President, and of judicial powers vested in the Supreme
and inferior courts of the United States.[376]
As respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging freedom of speech or the press, or the
right of the people peaceably to assemble and to petition to government
for a redress of grievances, Congress can make no law whatever.[377]
Nor can Congress infringe the right of the people to keep and bear
arms, or violate their right to be secure in their persons, houses,
papers, and effects, or pass any law holding a person to answer for a
capital or otherwise infamous crime unless on presentment or indictment
of a grand jury, except in cases arising in the land or naval forces,
or in the militia when in the actual service of the United States in
time of war, or public danger; or pass any law compelling any person
to be subject for the same offence twice to be put in jeopardy of life
or limb, or be compelled in any criminal case to be a witness against
himself, or be deprived of life, liberty, or property, without due
process of law; or pass any law taking private property for public use
without just compensation.[378]
The practical effect of the limitations expressed in the Fifth
Amendment can be known only by judicial interpretation, and decision
of cases instituted under it; no theoretical definition can anticipate
these decisions of the Supreme Court. The principle involved is the
protection of certain fundamental rights of the people. In a similar
manner do the Sixth, Seventh, and Eighth Amendments guard fundamental
rights and limit the legislative power delegated to Congress by the
people of the United States. This means that Congress has no power to
deny or to disparage rights enumerated in these Amendments which are,
as a group, enumerative of rights at common law. Nor are the rights
enumerated, or set forth, in the Constitution as (practically) excepted
out of the powers of government, and forever inviolate, the only rights
which Congress, in exercising its powers, is inhibited from violating.
Other and unmentioned rights of the people are distinctly implied,[379]
as retained by them, and the Tenth Amendment is a general limitation of
Congress, President, and Courts, for it declares that “The powers not
delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the
people.”[380]
141. The line of demarcation between powers delegated and powers
reserved has always been, and doubtless always will be, in dispute. The
question involved is political as well as constitutional. The abolition
of slavery by the Thirteenth Amendment excludes pro-slavery legislation
of any kind affecting the United States or any place subject to its
jurisdiction. In like manner the Fourteenth Amendment forbids Congress,
or any State, to assume or pay any debt, or obligation incurred in aid
of insurrection or rebellion against the United States, or any claim
for the loss or emancipation of any slave. All these limitations of
legislative power are practical guides and measurements by which the
judicial power,—the law courts,—can determine what the law is, whether
the act of Congress conflicts with the Constitution. It is largely
through these expressed limitations that the judiciary becomes a check
on the legislative.[381]
142. The limitations of the powers of the States are numerous and
specific. As to limitations of State power (_i. e._, the power of the
State government, executive, legislative, judicial, administrative),
within State jurisdiction, the several State constitutions alone
are authoritative and final.[382] The Union is an indestructible
Union of indestructible States, yet the States composing the Union
are under limitations as members of that Union. Except as to the
places of choosing senators, Congress may at any time prescribe
the times, places, and manner of holding elections of senators and
representatives.[383]
Congress has exclusive jurisdiction over the District of Columbia, and
over places purchased from any State, and over federal property.[384]
But the Constitution enumerates limitations of the States, each of
which eliminates sovereignty from the State and all together, with some
other limitations, reduce a State to what Hamilton, in _The Federalist_
calls “residuary sovereignty.”[385]
No State shall enter into any treaty, alliance, or confederation;
grant letters of marque or reprisal; coin money; emit bills of
credit; make anything but gold and silver coin a tender in payment
of debts; pass any bill of attainder, _ex post facto_, law, or
law impairing the obligation of contracts, or grant any title of
nobility.[386]
These limitations are of power usually classed as sovereign. Of similar
scope are the limitations, prescribed by the Constitution, of State
power of taxation,—that is, of laying imposts or duties; of keeping
troops or ships of war; of entering into any agreement with another
State, or with a foreign power; of engaging in war, unless actually
invaded, or in imminent danger of invasion, not admitting of delay.
None of these powers can a State in the Union exercise without the
consent of Congress.[387]
143. When called into the actual service of the United States, the
State militia are under the control of the President,—a limitation of
the power of the State executives.[388] The Supreme Court of the United
States has original jurisdiction in all cases in which a State is a
party,[389] except in cases commenced or prosecuted against a State by
citizens of another State, or by citizens or subjects of any foreign
State, in which cases the judicial power of the United States has no
jurisdiction whatever.[390] Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall have been
duly convicted shall exist in a State.[391] No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; or deprive any person of life, liberty,
or property, without due process of law, or deny to any person within
its jurisdiction the equal protection of the laws.[392] Denial of the
right to vote by a State to electors qualified as electors by the
Constitution of the United States shall work a proportional loss in the
basis of representation in Congress from that State. No State shall
assume or pay any debt or obligation incurred in aid of insurrection
or rebellion against the United States, or any claim for the loss or
emancipation of any slave.[393] A little reflection will lead one to
the conclusion that these limitations on the States, provided in the
Constitution of the United States, are essential to the existence of
the Union.
144. On the other hand, the States are recognized as checks and
balances, as limitations on the United States, by the Constitution:
(1) Representatives are apportioned among the several States, but
each State shall have at least one Representative,[394] and no State
can be deprived of its equal suffrage in the Senate without its own
consent.[395]
(2) The State executive alone has authority to issue writs of election
to fill vacancies in the representation of a State.[396]
(3) Each State appoints presidential electors equal to the whole
number of Senators and Representatives to which it is entitled in
Congress.[397]
(4) In case of a disputed election of President or Vice-President, the
Vice-President is chosen by the Senate,—the President, by the House
of Representatives, the vote in the House being by States, each State
having one vote, a quorum for this purpose consisting of a member or
members, from two thirds of the States, and a majority of all the
States being necessary to a choice.[398]
(5) The States, as represented in the Senate, have power to confirm or
to reject (two thirds of the senators present concurring) treaties and
nominations to office submitted to it by the President.[399]
(6) No State can be divided, nor can a new State be erected within a
State without its own consent.[400]
(7) Each State is guaranteed a republican form of government by the
United States, and protection against invasion, and (on application of
its Legislature, or of its Executive) against domestic violence.[401]
(8) The Legislatures of two thirds of the States may call a convention
for amending the Constitution; but no amendment becomes part of the
Constitution until ratified by the Legislatures of three fourths of
the States, or by Conventions in three fourths of them, as the one or
the other mode may be proposed by Congress.[402] In this procedure of
amending the Constitution, the several States are equal. A proposed
amendment may be ratified and become part of the Constitution by
the approval of three fourths of the States irrespective of their
respective area, population, wealth, or any other mark or quality.[403]
Finally, both as conferring benefits, and as prescribing the
fundamental limitations on the States and on the United States, the
Constitution and the laws and treaties made in pursuance thereof
comprise “the supreme law of the land,” and all officials “both of
the United States and of the several States shall be bound by oath or
affirmation to support it, anything in the constitution or laws of any
State to the contrary notwithstanding.”[404]
The character of this supremacy of the “law of the land” is indicated
in the Constitution itself: “The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.”[405]
The fundamental character of the limitations which this provision
establishes is seen as it affects the common interests of life. These
interests include domestic relations, ordinary business transactions,
recognized by common law; the ownership, acquisition, administration,
and distribution of estates; peace and good order within the State;
schools and education; the erection and care of public highways;
personal liberty, freedom of worship, freedom of speech and of the
press. These and cognate interests are within the scope and power of
the State, and not, unless control over them is specially delegated,
within the scope and power of the United States.
In truth, excepting in the election of United States Senators, members
of the House of Representatives, and Presidential Electors, the citizen
does not participate in federal government; and save through the post
office, the customs, the income tax (which directly affects fewer than
half a million persons in the United States), and in banking (including
the use of the money of the country) the citizen rarely has anything to
do with the United States. On the other hand, in the protection of his
property, the education of his family, the right of use of highways,
the validation of contracts, the rights, privileges and use of
multitudinous relations safeguarded by the common law and the statute,
it is the State, not the United States, which has first place, and,
consequently, constitutional priority.
The exact line of division between State and federal powers is not
known. The principle which rules in every attempt to fix this line is
that the enumeration of rights and powers in a constitution,—State or
federal,—“shall not be construed to deny or disparage others retained
by the people”[406] of the State or of the United States.
145. The essential doctrine, here, is set forth by the Supreme Court in
a decision which gives almost unlimited power to Congress in certain
cases (its power over a Territory, or possession of the United States):
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.... The
wisdom and discretion of Congress, their identity with the people,
and the influence which their constituents possess at elections,
are in this, as in many other instances,—as that for example,
of declaring war,—the sole restraints on which they have relied
to secure them from its abuse. They are the _restraints on
which the people must often solely rely in all representative
government_.[407]
The limitation of powers delegated by the people of the United States,
in the federal Constitution, or of a State, in its constitution,
implies a delegation of powers adequate to performance of legitimate
civil functions. The large question involved in every case of a
constitutional nature, or constitutional construction, is whether in
the discharge of a function, or an office, the government, or any
department of it is transcending its delegated powers. This question is
of the essence of constitutional law and judicial interpretation.
146. The people interpret their will in their election of executive,
legislative, or judiciary, and the elective system prevails for
all three in most of the States.[408] The courts interpret the
laws in course of performance of their judicial duties, and their
interpretation conforms to principles of justice. Thus in addition to
the popular restraint, through frequent elections,—there is judicial
restraint, or limitation of legislative and executive (but strictly
ministerial) powers.[409] The entire case, as to the relation of the
judiciary to the legislative, is covered by the rule laid down by
the Supreme Court: “It is emphatically the province and duty of the
judicial department to say what the law is.”[410] This duty is of
State judges as well as federal, for all American judges are alike
bound by oath to support the Constitution.[411] Any American judge has
jurisdiction to pronounce as to the constitutionality of an act of
Congress or of a State legislature. The essential fact necessary in
such pronouncement is that the validity of the law is vital to the real
interests of a party to the case or controversy before the court. The
decision of the court is not an _obiter dictum_, a mere philosophical
opinion, so-called, of the judges, individually, or collectively, based
on an interpretation of justice. The constitutionality of the law in
question must be an essential part of the issue before the court.
Whenever, in pursuance of an honest and actual antagonistic
assertion of rights by one individual against another there is
presented a question involving the validity of any act of any
Legislature, State or federal, and the decision necessarily rests
on the competency of the Legislature to so enact, the court must,
in the exercise of its solemn duties, determine whether the act
is constitutional or not; but such an exercise of power is the
ultimate and supreme function of courts. It is legitimate only in
the last resort, and as a necessity in the determination of real,
earnest, and vital controversy between individuals. It never was
the thought that by means of a friendly suit, a party beaten in
the Legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.[412]
The principle of constitutional interpretation is given by Chief
Justice Marshall:
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.[413]
And he develops the principle further:
But where the law is not prohibited, and is really calculated to
effect any of the objects entrusted to the government, to undertake
(in courts of law) to inquire into the degree of its necessity
would be to pass the line which circumscribes the judicial
department, and to tread on legislative ground.[414]
147. The American constitutions are expressed and implied, limitations
of governmental powers, though popularly considered as grants of such
powers. “The truth is,” wrote Hamilton in _The Federalist_, “the
Constitution is itself, in every rational sense, and to every useful
purpose, a Bill of Rights.” It is “the Bill of Rights of the Union.”
It declares and specifies “the political privileges of the citizens
in the structure and administration of the government.” It “defines
certain immunities and modes of proceeding which are relative to
personal and private concerns.” It comprehends “various precautions
for the public security which are not to be found in any of the State
constitutions.”[415] James Wilson agreed with Hamilton that the
Constitution is itself a Bill of Rights, remarking, in reply to the
objection that the Constitution as it left the hands of its framers
and went to the country had no Bill of Rights:
A Bill of Rights would have been improperly annexed to the federal
plan (_i. e._, the Constitution, 1787), and for this plain reason
that it would imply that whatever is not expressed was given, which
is not the principle of the proposed Constitution.[416]
As constitutions are the most solemn form of limitations of
governmental powers, their interpretation determines the whole
character of the government. The principle of constitutional
interpretation is that
words are to be understood in that sense in which they are
generally used by those for whom the instrument was intended; its
provisions are neither to be restricted into insignificance, nor
extended to objects not comprehended in them, nor contemplated by
its founders.[417]
The effect of the judicial pronouncement of the unconstitutionality of
a law is to make it “in legal contemplation, as inoperative as if it
had never been passed.”[418]
148. To whatsoever extent State or federal officials perform
ministerial functions they are answerable to the judiciary for their
acts. Ministerial officers comprise the vast body of appointees in the
States and in the United States. They are not executive officers, for
such perform functions distinctively outside judicial investigation,
but as distinctively within the political powers of the legislature.
The judiciary is a powerful limitation of ministerial powers, in the
sense that the performance of those powers is examinable in courts of
law.[419]
In the popular mind the veto power may seem to be the principal
executive check on legislation. This conviction takes form in State
constitutions[420] which authorize the Governor to veto any item in an
appropriation bill, or to cut the item down.
One result of this popular conviction is acquiescence in exercise of
executive power which, in former times would have been interpreted
by the people as “executive usurpation.” At present the people rely
upon their executives,—Governors, Presidents,—to act as a check,—a
limitation,—on unwise legislation. This reliance, or expectation,
is a powerful element in practical politics. Thus the limitations
of government in America are threefold: first, the American
constitutions themselves; secondly, frequent popular elections, and
thirdly, the judiciary in its interpretation of constitutions and
laws. These limitations are constitutional limitations. There is a
fourth limitation but it belongs to another sphere,—the sphere of
politics.[421]