§ 346]

ENUMERATED POWERS

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346. The Constitution tried to mark off the two fields from one another by three devices: (1) by "enumerating," in eighteen paragraphs (Art. I, sec. 8) the powers given to Congress; (2) by forbidding certain powers to the States (Art. I, sec. 10); and (3) by providing (expressly in the tenth amendment, and by implication throughout) that powers not granted to the Central government are reserved to the States. It is customary, therefore, to call our government "a government of enumerated powers."

The Virginia Plan contained no enumeration; and when such a device was suggested in debate, it was always postponed as impracticable. The New Jersey Plan did contain a brief enumeration of important powers; and a longer one was included in a plan presented early in the debates by Pinckney. Both these plans were referred to the Committee of Detail. Moreover, Sherman, speaking for the small states, had presented a detailed enumeration, of which we have no copy; and Ellsworth, Sherman's colleague and admirer, was on the committee. The report of that committee contained the enumeration much as we have it to-day.

The enumerated powers are vast. They include sole control over foreign relations (with the making of peace and war, and maintaining armies and navies); and, in domestic matters, the control of naturalization, coinage and weights and measures, the post office and postal service, copyrights and patents, commerce between citizens living in different States, and taxation so far as needful to enable the Government to care for all these duties.

Still, these powers touch our daily life less closely and less vitally than do the powers reserved to the States. The State regulates the franchise (indirectly, even the Federal franchise 1), marriage and divorce and all family relations, inheritance, education, all property and industrial conditions (except those that may be connected with interstate commerce), and all criminal law, as well as the powers of towns, counties, and other local units.

1 Except as certain provisions have been put beyond the control of either State or Congress by the Fifteenth Amendment.

347. In a federal government there is inevitably a constant contest between the advocates of stronger central control and the upholders of the rights of the States. In power, either party is apt to seek to extend the province of the government. In opposition, the same party appeals to States rights, to restrict a power which seems dangerous in the hands of opponents.

The party anxious to limit the Central government has always sought to restrict it closely to the "Enumerated powers." Its opponents have met this war cry with the shibboleth, "Implied powers." Under cover of this phrase a vast development of National power has taken place. Thus the Constitution gave Congress power to regulate interstate commerce. Το the men of that day, that power meant only authority to prevent one State from setting up barriers against another's commerce. Under the same phrase to-day Congress regulates railroad freight rates on commerce, adulteration of foods (character of goods carried in this commerce), and hours of child labor employed in making articles of commerce.

This expansion of National authority is essential to our wellbeing. The States are no longer competent to manage these common interests. Steam and electricity, and intimate trade relations, make many matters fit subjects for National control now which were better off in the hands of the States a hundred years ago. It would be better, no doubt, to give such powers distinctly to the Central government by adding them to the enumeration of powers; but our Constitution makes such amendment exceedingly difficult, and so it is fortunate that we can meet new needs as they arise by even this dangerous process of "forced construction" at the hands of Congress and the Supreme Court.1

1"They [the men of the Philadelphia Convention] foresaw that their work would need to be elucidated by judicial commentary; but they were far from conjecturing the enormous strain to which some of their expressions would be subjected in the effort to apply them to new facts. . . . The Americans have more than once bent their constitution, that they might not be forced to break it." -JAMES BRYCE, American Commonwealth.

§ 349]

IMPLIED POWERS

297

348. In expanding "implied powers," two expressions in the Constitution have been especially appealed to, the "general welfare" clause, and the " necessary and proper " clause.

a. The words "to provide for the general welfare occur twice, once in the preamble, once in the first paragraph of the enumeration of powers. In the preamble the clause could not convey power; and, moreover, in that connection, the words are taken from a similar passage in the old Articles of Confederation. In the other passage (Art. I, sec. 8), paragraphing and punctuation show beyond reasonable dispute that "to . . . provide for the general welfare" is not an independent grant of power, coördinate with "to lay taxes," or "to coin money." The infinitive "to . . . provide" is merely adverbial, restricting the meaning of the preceding infinitive "to lay . . . taxes." This, too, is the decision of the Supreme Court (Chief Justice Marshall, in Gibbons vs. Ogden).

Originally, as reported by the Committee on Detail, the passage read merely, "To lay and collect taxes, duties, imposts, and excises." Some two weeks later (August 22), another committee suggested that this unlimited taxing power be restricted by adding the words "for the payment of the debts and necessary expenses of the United States." The Committee on Style altered the form from a prepositional to an infinitive phrase, with a slight change of wording.

b. In" necessary and proper," " necessary" would at first seem to be the stronger word. Why is "proper" added? Does the passage mean that a power should not be used, even if necessary, unless also proper? Or does "necessary mean merely convenient? The latter interpretation has been adopted by the courts. This phrase is the true basis for the growth of the doctrine of implied powers.1

349. The Convention decided without great trouble that in the first Congress the Representatives should be divided among the thirteen States in proportion to their population; but Morris

1 Among the opponents of the Constitution, Mason and Gerry alone saw the possibilities of this phrase (Source Book, No. 162).

and the New Englanders struggled to prevent the adoption of proportional representation as a permanent principle. After the government should once have been instituted, argued Morris, let Congress provide for reapportionment (or refuse to provide it) as it might think best from time to time. His purpose, he stated frankly, was to prevent any true reapportionment so far as would concern new States from the West. "The new States will know less of the public interest," said he, and "will not

be able to furnish men equally enlightened." Even in the old States, he added, "the back members [western members] are always the most averse to the best measures." Several other delegates urged that the total representation from new States ought never to exceed that from the original thirteen.

The Virginia delegation stood forth as the champions of the West. Mason argued unanswerably that both justice and policy demanded that new States "be treated as equals, and subjected to no degrading discriminations." This view prevailed. On motion of Ran

Winsor's Narrative and Critical dolph, the Constitution itself

History, based upon a portrait.

provides for a census, and for reapportionment, every tenth year.

350. Another sectional quarrel grew out of this question of apportionment. The South wanted slaves to count as men. Many Northern members were vehemently opposed to this, both because of a rising sentiment against slavery, and because they feared an undue weight for the South in Congress. The outcome was the "Second Great Compromise," the three fifths

§ 352]

SECTIONAL JEALOUSIES

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ratio, so that five slaves1 should count as three free persons in fixing the number of Representatives from a State.

351. The "Third Great Compromise," also, was concerned with slavery. New England wished Congress to have power over commerce, so that it might encourage American shipping against foreign competition. The South feared that Congress, with this power, might tax the great Southern exports, cotton, rice, and tobacco, or even prevent further importation of slaves. Finally Congress was given power to regulate commerce, providing, however, (1) that it should not tax exports; and (2) that it should not forbid the importation of slaves for twenty years.2

352. The Judiciary has been called fitly "that part of our government on which the rest hinges." (1) It decides controversies between States, and between State and Nation. (2) It even over-rides Congress. (3) Its life tenure makes it independent of control.

a. A final arbiter was needed somewhere, in case of conflict between State and Nation. The Virginia Plan gave the decision to the Federal legislature (§ 342). The New Jersey Plan gave it to the State judiciaries. It was finally placed in the Federal judiciary by a provision for appeals from State courts.

1 The Constitution recognized slavery in several passages, but it carefully avoided using the word.

2 Georgia and South Carolina felt that they must have more slaves to develop their rice swamps, and made it clear that they would not come into the Union unless their interests in this matter were guarded. Virginia, Delaware, and Maryland (and North Carolina in part) had already prohibited the foreign slave trade by State laws. The most powerful advocate of national prohibition upon the trade was George Mason, a great Virginia slaveholder. He pointed out the futility of State restrictions, if the great Northwest was to be filled with slaves through the ports of South Carolina and Georgia, and he argued therefore that the matter concerned not those States alone. "Slavery," he continued, "discourages arts and manufactures. The poor despise labor when performed by slaves They prevent the immigration of Whites, who really strengthen a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country. As nations cannot be punished in the next world, they must be in this."