Especially by those who desire to magnify the powers of the Federal Government it has been argued that instead of construing Section 8 of Article I as simply the grant of an authority to raise revenue in order to pay the debts and provide for the common defense and general welfare of the United States, it should be interpreted as conferring upon Congress two distinct powers; namely: (1) the power of taxation; and (2) the power to provide for the common defense and general welfare. And, under the latter of these two grants, it has been argued that the Congress has the authority to exercise any power that it may think necessary or expedient for advancing the common defense or the general welfare of the United States. It scarcely needs be said that this interpretation has not been accepted by the courts. Were this view to be accepted the government of the United States would at once cease to be one of the enumerated powers, for it would then be possible to justify the exercise of any authority whatsoever upon the ground that the general welfare would thereby be advanced.

§ 23. The Constitution is to be Construed as a Whole.

Though the terms of the Constitution may not be varied, or its grants of authority limited by abstract doctrines of private rights and of political justice and expediency, the words of each clause are to be interpreted in the light of the other provisions of the Constitution. The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore, logically proper, and indeed imperative, to construe one part in the light of the provisions of all the other parts."

42

This principle has been of dominant force in the construction of the Constitution.

The principle that the Constitution is to be interpreted in the light of the general purpose for the attainment of which it was

42" In construing the Constitution of the United States we are, in the first instance, to consider what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts." Story, Commentaries, § 405.

adopted, coupled with the fact that many of its terms are general in character, has made possible and legitimate two schools of constructionists- the Loose or Nationalistic school, and the Strict or States' Rights school-each dependent upon a belief held as to the general end which the framers of the Constitution had in mind when that instrument was drafted. The Strict or States' Rights constructionist has not always been one who would deny sovereignty or efficiency to the National Government. Thus, Taney, a leader of the strict constructionists, never for a moment doubted the sovereignty of the General Government, or, as he showed in his decision in Ableman v. Booth, the supremacy of its laws and of its agents over the laws and agents of the States. He did believe, however, that the sovereign national laws should be kept within as limited a space as possible. This he showed from the first year of his chief-justiceship.

From the general nature and intent of the Constitution have been deduced, not to mention other doctrines, the denial of the right of secession, the power of the courts to hold void state or federal laws contrary to the Constitution, the jurisdiction of the federal courts to entertain appeals from the highest state courts in cases in which a federal right, privilege, or immunity has been and denied, the immunity of federal governmental agencies from interference on the part of the States by taxation or otherwise, the immunity of state agencies from federal taxation, the exclusive federal jurisdiction in matters of naturalization, and the liberal construction of "implied" powers generally.

set up

§ 24 So-called “Natural” or “ Unwritten Constitutional” Laws Have no Constructive Force.

The so-called "natural" or unwritten laws defining the natural, inalienable, inherent rights of the citizen, which, it is sometimes claimed, spring from the very nature of free government, have no force either to restrict or to extend the written provisions of the Constitution. The utmost that can be said for them is that where the language of the Constitution admits of doubt, it is to be presumed that authority is not given for the violation of acknowledged principles of justice and liberty.

In not a few instances, especially during early years, the binding force of natural laws is declared, but a careful examination of these cases shows that, practically without exception, the doctrine was used not as the real ratio decidendi, but to support, upon grounds of justice and expediency, a decision founded upon the written constitutional law.

Prior to the separation from England, the colonial courts were naturally inclined to minimize the power of the English Parliament, and, therefore, to uphold Coke's dictum in the famous Bonham case that an act of Parliament contrary to natural rights and justice is void. And in the political controversies which preceded the Revolution the doctrine of natural rights was relied upon. It would appear, however, that, though often asserted by the courts, no legislative act was held void solely because it was conceived to exceed the proper limits of all legislative power."

43

46

When American independence came, it was to be expected that the Americans would apply the doctrine of natural rights and justice in limitation of the law-making powers of their own legislatures, and thus, as said, we do find the principle not infrequently stated, during the early years of the Constitution.45 Even Chief Justice Marshall lent it, upon occasion, a qualified sanction. "It may well be doubted," he observes in Fletcher v. Peck whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where they are to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the [state] legislature all legislative power is granted; but the question whether the act of transferring the property of an individual to the public be in the nature of the legislative power is well worthy of serious reflection." 47

43 For instance by Otis in his arguments against writs of assistance.

44 As to whether the South Carolina case of Bowman v. Middleton, 1 Bay, 252, was such a case, see Thayer, Cases on Const. Law, I, 53, note 2. 45 Cf. Stimson, Handbook of American Labor Law, p. 4, note. 46 6 Cr. 87; 3 L. ed. 162.

47 One of the clearest statements of the doctrine, though given obiter, is that of Justice Chase in Calder v. Bull (3 Dall. 386; 1 L. ed. 648). He says: "I cannot subscribe to the omnipotence of a state legislature, or that it should

§ 25. The "Spirit" of the Constitution.

Closely allied to the assertion that the Constitution is to be interpreted in the light of "natural law," is the doctrine that the fundamental purpose of the constitutional fathers was the erection of a free republican government, and that, therefore, the be absolute and without control; although the authority should not be expressly restrained by the constitution, or fundamental law of the State. The people of the United States erected their Constitution or form of government, to establish justice, to promote the general welfare, and secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundations of the legislative power they will decide what are the proper objects of it. The nature and ends of the legislative power will limit the exercise of it. This fundamental principle follows from the very nature of our republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection whereof the government was established. An act of the legislature (for I cannot call it a law) contrary to the great first principle of the social compact, cannot be considered a rightful exercise of the legislative authority. The obligation of a law in governments established on express compact, and on republican principles must be determined by the nature of the power on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; a law that takes property from A and gives it to B: It is against all reason and justice for a people to entrust a legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit of our state governments amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our federal or state legislature possesses such powers if they had not been expressly restrained, would in my opinion be a political heresy, altogether inadmissible in our free republican govern

ments."

Constitution should, whatever its express terms may provide, never be so construed as to violate the abstract principles deducible from this fundamental fact. Generally speaking, whereas the so-called natural laws have reference to the private rights of the citizen, the protection of his person and property; these principles claimed to be deducible from the spirit of the Constitution as the framework of a free government have reference to the public and political rights of the individual.

Stated in this abstract, philosophical form, the doctrine that the "Spirit" of the Constitution is to prevail over its language has no more legal validity than has the doctrine of natural law.

§ 26. Applicability of Constitutional Provisions to Modern Conditions.

In construing the Constitution the very proper and indeed absolutely necessary principle has been followed that that instrument was intended to endure for all time and that its grants of power are, therefore, to be interpreted as applicable to new conditions

Justice Iredell though agreeing in the decision of the court dissented from Chase's reasoning, saying: "If, then, a government composed of legislative, executive and judicial departments were established by a Constitution which imposed no limits on the legislative power, the consequence would immediately be that whatever the legislative should choose to enact would be lawfully enacted, and the judicial power could never interfere to pronounce it void. It is true that some speculative jurists have held, that a legislative act against natural justice must in itself be void; but I cannot think that under such a government, any court of justice would possess a power to pronounce it 80. . . . If any act of Congress, or of the legislature of a State, violates those constitutional provisions [of the United States Constitution], it is unquestionably void; though, I admit, as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case. If, on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law within the general scope of their constitutional power, the court cannot pronounce it void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and purest men have differed upon the subject; and all that the court could properly say in such an event, would be, that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice."