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which would more or less enter into the expediency of measures to be adopted. We should, nevertheless, not say, that the means for the execution of powers should be literally construed, according to the import of that word, as already commented upon by us. Although conscious that we are about to express an opinion, which has by many been criticised and condemned, yet, after long and serious deliberation, we can conceive no better rule to direct the judgment in deciding upon the means to be used in the execution of a power, than that which is contained in the following passage of the case of McCulloch and the State of Maryland :-"Let the end be legitimate, let it be within the scope of the Constitution," (by which we understand, let the power be enumerated) “ 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.” This rule will, doubtless, leave open a wide field for argument; but can any substitute for it so unexceptionable, be suggested ? It has, we are aware, been insisted, that only those means which are strictly necessary shall be employed. It will not be denied, that the means to effect an object, must often be various: if various, a choice must be exercised among them; in exercising this choice, would not opinions differ as much in determining which of them was that which was strictly necessary, or which of them was the most strictly necessary, as in selecting that which was the most appropriate, and best adapted to the end? If the rule is to be that the means strictly necessary, must be adopted, is it intended, that the rule shall govern, when by adhering to it, the object of the power cannot be obtained ? We feel no hesitation in answering, that it is not ; for the absurdity is not to be imagined, that the Constitution has given a power which cannot be executed. What then must be the rule? To take that meun, which departing as little as possible from strict construction, will accomplish the object of the power, when strict construction will not. far, we are confident, that the most rigid constructionist will go with us; and with the same confidence, we undertake to assert, that he will admit, that the power may be accomplished by the means, not partially but entirely, not defectively but beneficially, otherwise an equally absurd consequence would follow, that the Constitution has given a power which cannot be otherwise than imperfectly executed. In accord then with those from whom we apparently differ, so far as to agree with them, that no wider latitude is to be allowed in executing a power, than is necessary for its perfect accomplishment, we ask either them, or the most subtle logician who ever framed a syllogism,
to point out, in intelligible language, the distinction between this proposition, and the one which we have submitted—that the
means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” Were it possible to discriminate between the rule which we recognize and that which is supposed to be in opposition to it, we should contend that our opponents, in arguing that the means to an end must be strictly necessary, depart more from the text of the Constitution than we do. The words of the Constitution are not "strictly necessary,” but “necessary and proper;" and is not a law“ necess sary and proper,” or what is tantamount--appropriate, which, under the limitation we have stated, carries a power into execution? and if a law "strictly necessary” would not carry a granted power into execution, could it, without an evident solicism, be termed a "necessary and proper law ?” Extreines meet: by restricting the exercise of means so rigidly, as to prevent their full and useful operation, we as palpably violate the letter and spirit of the Constitution, as by pursuing a diametrically opposite
In the one case, Congress would be guilty of rendering bugatory a power which the people had granted for their own benefit, and thus paralyzing their will: in the other, it would be guilty of usurping a power which had never been granted. Let us illustrate, by a single example, the consequences resulting from what is called a “strictly necessary” execution of a power, and its execution pursuant to the rule which we contend for. By those who permit only the strict execution of a power, the right to construct military roads, in time of peace is denied, although conceded to be allowable flagrante bello. If military roads can legitimately be made at all, it must be, because they are a proper means of carrying on war; and for the transportation of men, arms, provisions, &c., it would not be questioned, that they are so necessary, that, without them, war could not be waged, otherwise than disadvantageously, and, that its operations, from the want of them, would sometimes be totally frustrated: we apprehend also, that all this is admitted by the admission, that military roads may be constructed during war; and yet because they are not useful in time of peace, they shall, therefore, by the canons of strict construction, be delayed until the commencement of hostilities, when, frequently, it would be impracticable to construct them, and when, frequently, if constructed, they would not be finished, until too late to answer the purposes for which they were designed. By so construing the power, as to perfect military roads, in time of peace, they will effect the objects contemplated by them; and no greater power
is assumed in constructing them in peace than in war, a mere digcretion is exercised in selecting the fittest period and opportunity for the execution of the work. By which of these modes are the spirit and true meaning of the Constitution best effectuated ?We are no advocates for discretion in governments; but to a certain extent, it is unavoidable. They who require the strictest limitation upon the means to be used in the execution of a power, will admit that these means cannot be specified, but that the Legislature must direct them. Shall we not be as utterly incompetent to devise a rule for the regulation of discretion so controlled, as if it were not limited within such narrow bounds ? Our protection against arbitrary legislation (so far as a written instrument can afford protection) must be drawn from another source-the enumeration of powers in the Constitution.
The test by which to try whether a law be constitutional, is the power from which it emanates. To be constitutional, it must be de rived from some enumerated power, and clearly come within its scope and meaning. In construing a power, all discretion is excluded. If it exist, it must be authorized by the litera scripta of the instrument, which being a special grant for special purposes, admits no latitude of construction. This is the doctrine of the Supreme Court, to which a too rigid interpretation of constitutional power has never been attributed, although the opposite charge has not unfrequently been alleged against it.
“The government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge,
«'We admit as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.”+
Suppose a law to be passed, the constitutionality of which is questioned. To shew its unconstitutionality, we would examine the Constitution carefully, and if it prohibited the power exercised by the law, or contained no power warranting it, we should pronounce it to be unconstitutional. But if we could trace up the law to a subsisting power, and find it to be a mean to effect that power, although one more appropriate might be conceived,
* M'Culloch and the State of Maryland: 4 Wheat. Rep. p. 405.
+Ib. p. 401.
the question then involved would be one of expediency or utility, and if that is not to be solved by the Legislature, it would cease to be a Legislature, it could be stripped of its essential and characteristic attributes. If the Judiciary would decide upon the degree of discretion, which Congress can exercise in its means to carry an enumerated power into execution, the Judiciary, not Congress, would be the Legislature; and is it advisable that this power should be exercised by the Judiciary rather than by the Representatives of the people? To sustain our position, we will advert to the grounds upon which some acts of Congress have been judicially declared to be, and upon which others never brought before the Judiciary, are believed to be unconstitutional. In the Judiciary act of 1789, authority was given to the Supreme Court to issue writs of mandamus to public officers. That tribunal pronounced this part of the law to be unconstitutional, because it conveyed original jurisdiction to the Supreme Court, in a case, where, by the Constitution, it could only exercise appellate jurisdiction. In 1792, an act was passed “to regulate," among other things, “the claims of invalid pensioners,” and imposing certain duties upon the Federal Courts: the act, so far as related to those duties, was declared to be unconstitutional, as they formed no part of any power, vested by the Constitution in the Courts of the United States. The President was authorized, under an act passed on the 22d of June, 1798, to appoint officers to such volunteer corps as should be raised in pursuance of an act passed on the 28th of May, preceding. The services of a corps of volunteers are appropriate means to carry on a war-being a military body, it must be organized-officers are necessary for its organization, they must therefore be appointed. According to the strictest construction, such a corps was a means to a lawful' end : we think, nevertheless, that the power vested in the President was unconstitutional. The Constitution recognizes but two species of military force, the troops of the United States and the militia of the States: these volunteer corps were not troops of the United States, they were consequently militia; and under the Constitution, the power of appointing the officers of their militia, is reserved to the States. What has been usually termed the Alien Law, passed in 1798, empowered the President to order all such aliens (even alien friends) as he should judge dangerous to the peace and safety of the Union, to depart from its limits within a certain time; and in case of their disobedience, they were liable on conviction, to be imprisoned for any term not exceeding three years. The general voice of the nation has pronounced this law to be unconstitutional, because it was not founded upon any power delegated to the Federal Government. The Sedition Law,
passed in 1798, is regarded by the great majority of the people to have been a violation of the Constitution, not because it was an improper mean to accomplish its object, but because it was repugnant to the first article of the amendments to the Constitution.
A law has recently been passed, imposing duties on impor s, which is also believed by no inconsiderable portion of the community to be unconstitutional. By those who advocated it, and by whose votes it became a law, it was alleged to be authorized by the power “to regulate commerce with foreign nations and among the several States.” As a measure of revenue, it neither was nor could have been sapported, its purpose being to exclude foreign imports, upon which duties are paid, for the encouragement of American manufactures, upon which duties are not paid. In judging then of the validity of this law, the question is, whether a power to regulate commerce, sanctions the passing of an act imposing duties to exclude foreign imports for the encouragement of American manufactures? or, in other words, whether a law, exclusively for the regulation of manufactures is a law for the regulation of commerce? The statement of this question would seem to involve its answer. Can a power intended for one object, authorized by the Constitution, be applied to another which it has not authorized ? If it can, the Constitution is unlimited in its action, and our citizens live under a despotism, not the more grateful for having been created by themselves. Are not commerce and manufactures as distinct as navigation and agriculture? Being so, is it not absurd to claim the power of regulating manufactures under a power to regulate commerce? If the power can be sustained, where is the control of enumerated powers? What has been said in Congress' may be repeated, that the connexion between commerce and manufactures is so intimate that it cannot be severed ; and, that by legislating for the one we advance the prosperity of the other. Granted ; but has power been given to Congress to regulate what is not committed to it, in order to execute that which is? If this reasoning is to prevail, how are we to save from its grasp the exercise of universal legislation ? Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the facility of purchasing real property, the punctual performance of contracts, the preservation of internal order, the diffusion of knowledge, the manner in which the industry of individuals is conducted, the arts and the sciences, are all intimately connected with commerce: could Congress then, having the power to regulate commerce, embrace all these subjects within it? It unquestionably could, if having a power for one purpose it could extend that power to whatever might be intimately con