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§ 39. Express Limitations Upon the Federal Government.

The express limitations upon the powers of the Federal Government are in part limitations upon the manner of exercise of powers expressly given, as, for example, that direct taxes shall be apportioned among the several States according to their respective populations, that naturalization, bankruptcy, and tariff laws shall be uniform throughout the United States, etc.; and in part absolute prohibitions upon the exercise, in any manner, of the powers specified. These absolute prohibitions are to be found, in the main, in Section 9 of Article I and in the first eight Amendments.

From the very first it has been construed by the Supreme Court that the prohibitions contained in these Amendments apply only to the United States. This was first authoritatively declared by Marshall in the case of Barron v. Baltimore26 decided in 1833. amble of the Constitution declares who framed it, we, the people of the United States,' not the people of one State, but the people of all the States; and Article 10 reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all the powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of the things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article 10 is not to be shorn of its meaning by any narrow or technical construction but is to be considered fairly and liberally so as to give effect to its scope and meaning." Mr. C. J. Tiedeman in his work The Unwritten Constitution of the United States raises the point whether a correct interpretation of the Tenth Amendment would not give to the National Government those powers the exercise of which is prohibited to the States, but which are neither prohibited nor delegated to the General Government. His claim is that the General Government should be construed to have those powers, for, he argues, the powers must rest somewhere; they are expressly prohibited to the States, and, therefore, they must be possessed by the Nation. The advantage which he conceives would follow from an acceptance of this principle would be the avoidance in many cases of resorting to an undue straining of the doctrine of implied powers in order to enable the General Government to exercise an authority essential to its welfare but not expressly delegated to it.

26 7 Pet. 243; 8 L. ed. 672.

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In his opinion rendered in that case, Marshall said: "The plaintiff insists that the [Fifth] Amendment being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a State as well as that of the United States. The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a Constitution for itself, and in that Constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed next a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers to be conferred on the Government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, and not of distinct governments framed by different persons and for different purposes."

The correctness of this decision has never been questioned either by the federal or the state courts. However, as we shall notice in a later chapter, the argument has been made, but not accepted as valid by the Supreme Court, that the clause of the Fourteenth Amendment which provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," should be so construed as to render the provisions of the first eight Amendments operative upon the States.

In regard to these first eight Amendments it has sometimes been said that it was only an excess of caution that required their incorporation in the federal Constitution. Inasmuch as the United States was to have only the powers expressly or impliedly given it, it has been asserted that the General Government would have been, in the absence of such express limitations, without

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the authority to exercise the powers that these Amendments enumerate. A consideration, however, of the construction which several of the provisions of these Amendments have received, especially during recent years, will, it is believed, make it evident that these express limitations upon the Federal Government have been of considerable importance.28

§ 40. Implied Limitations Upon the Federal Government.

The implied limitations upon the Federal Government are: first, those implied in the express limitations; and second, those which arise from the general nature of the American federal State. The Constitution looks to a preservation of the several States in the administrative autonomy that is allotted to them, and from this is deduced the principle that the Federal Government may not, unless it be absolutely necessary to its own efficiency, interfere with the free operation of state governments either by way of imposing upon them the performance of duties, or of unduly restraining their freedom of action by way of taxation or otherwise.

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27 Indeed, in the eyes of some, of Hamilton at least, there were affirmative reasons why these limitations should not be expressly stated. In The Federalist, No. 84, after showing that Bills of Rights were stipulations between Kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince," whereas in constitutions "the people in reality surrendered nothing," Hamilton proceeds: "I go further and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? ... Men disposed to usurp might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given and that the provision against the liberty of the press afforded a clear implication, that a right to prescribe proper regulations concerning it, was intended to be vested in the National Government."

28 See chapter XLV.

The principles governing the deduction of implied from express limitations upon the Federal Government are the same as those applicable to the construction of implied powers.

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In Fairbank v. United States the court say: We are not here confronted with a question of the extent of the powers of Congress, but one of the limitations imposed by the Constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly granted and as carrying with them authority to pass those acts which may be reasonably necessary to carry them into full execution; in other words, if the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that, where prohibition or limitation is placed upon the power of Congress, that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed, and that language of restriction is to be narrowly and technically construed. Especially is this true when, in respect to grants of powers, there is, as heretofore noticed, the help found in the last clause of the eighth section, and no such helping clause in respect to prohibitions and limitations. The true spirit of constitutional interpretation in both directions is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose."

§ 41. Exclusive and Concurrent Federal Powers.

The legislative powers possessed by the Federal Government may be divided into two classes; the one embracing those powers the exercise of which is exclusively vested in the General Government; the other those which, in default of federal exercise, may be employed by the States.

Some of the powers granted by the Constitution to the General Government are expressly denied to the States. As to the ex29 181 U. S. 283; 21 Sup. Ct. Rep. 648; 45 L. ed. 862.

clusive character of the federal jurisdiction over these there cannot be, of course, any question. It has, however, been often a matter difficult of determination whether or not various of the powers given to the United States, but not expressly made exclusive, or denied to the States, are so exclusively subject to federal control that the exercise of them by the States is under no circumstances permissible. Shortly stated, the principle that the Supreme Court has laid down for determining this question in each particular case as it has arisen has been the following: As regards generally the powers granted to the National Government there is a difference between those which are of such a character that the exercise of them by the States would be, under any circumstances, inconsistent with the general theory or national polity of the Constitution, and those not of such a character. As regards this latter class, the Supreme Court has held that as long as Congress does not see fit to exercise them, the States may do so. Laws thus passed by the States are, however, of course subject to suspension at any time by the enactment by Congress of laws governing the same subjects.30

In the early case of Sturges v. Crowninshield 31 Chief Justice Marshall, in reference to the matter of bankruptcy, laid down the distinction between the exclusive and concurrent powers of the Federal Government, in the following language: "When the American people created a national legislature. with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. In some instances, as in making treaties, we find an express prohibition; and this shows the sense of the convention to have been that the mere grant of

30 By the enactment of a federal law a state law governing the same subject is not nullified but merely suspended during the existence of the federal statute. Upon the repeal of the federal statute, the state law again operates without any re-enactment by the State.

31 4 Wh. 122; 4 L. ed. 529.

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