THE POWERS OF CONGRESS.

35. GENERAL PRINCIPLES. To rightly understand not only the powers of congress, but also those of the other factors of government, it is necessary, in considering individual instances, to keep constantly in view the general principles concerned and the fundamental doctrines of constitutional law.

The constitution does not define the powers of the factors of the government. It simply enumerates them.' Since in their exercise they must necessarily be made definite, it devolves upon the governmental factors themselves to decide upon the limits of their own capacity. Thus the courts, and in the last instance the federal supreme court, under the principles and limitations already laid down, must be the controlling power in the decision. To define these powers correctly it must not be lost sight of that all the powers spring from one idea and are intended to reach one goal. They must therefore always be considered as a whole. It follows from these premises, not only that besides the powers expressly granted there are others which are implied by those granted and result from them (implied and resulting powers), but that the second kind of powers is not distinguished in substance from the first. If the doctrine that the powers of the government are enumerated must be understood to mean that the expressly granted powers must be literally interpreted and that there can be no unenumerated power, then the federal government would be deprived of the possibility of existence.3

If the constitution can be interpreted in two ways, one of which assures the fulfillment of the object of its exist

1 Gibbons vs. Ogden, Wheaton, IX., 1.

2 The Legal Tender Cases, Wallace, XII., 532.

3 Ibid., 546.

ence, while the other tends to render it nugatory, there can be no doubt which is the right rendering.

§ 36. TAXATION, FINANCE AND THE PUBLIC DEBT. The financial distress which ever threatened more and more to be fatal to the republic, under the articles of confederation, deserves to be thanked, in the first instance, for the reorganization of the Union. The constitution therefore naturally takes ample care that the federal government shall not want the necessary material means to fulfill the object of the federation. Congress is empowered "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises shall be uniform throughout the United States" (art. I., sec. 8, § 1). Congress may levy imposts of any kind, and as they are collected directly from the individual by organs of the federal government, without the mediation of the states, it can constantly satisfy the needs of the nation in their fullest range, for the amount of every impost, which congress is permitted to make, is left wholly to its own discretion. Political and economical considerations and regard for business interests set certain bounds to it in this respect, but its constitutional authority is unlimited.' But still the power of congress to levy taxes is not entirely unconditioned. In fact bounds are set to it in various directions by several express provisions of the consti

1 The Union is divided into collection districts. The president fixes their number and boundaries. In every district there is a collector who is allowed a number of assistants (deputy collectors). After a reduction earnestly undertaken, September 5, 1883, the number of revenue districts was eighty-four. The heads of the custom-houses are called collectors of customs.

See McCulloch vs. Maryland, Wheaton, IV., 316, 428. See, also, Veazie Bank vs. Fenno, Wallace, VIII., 548.

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tution. "All duties, imposts and excises shall be uniform throughout the United States." Moreover, direct taxes must be levied in proportion to the population of the states (art. I., sec. 2, § 3) and the census is made the basis (art. I., sec. 2, § 4). Finally, "no tax or duty shall be laid on articles exported from any state."

Further restrictions of the right of taxation result from the fact that congress can exercise it only for the fulfillment of the objects enumerated. The expression "general welfare" is indeed so comprehensive and vague that the discretion of congress is given the widest play. But however much this expression may be stretched, the mention of the three general purposes makes it certain that, for other purposes, no federal taxes can be levied. There are certain bounds, more or less clearly marked, within which the right of taxation unquestionably can

1 In Loughborough vs. Blake, Wheaton, V., 317, the federal supreme court decided that this means not only the states, but the entire domain of the Union. The provision thus extends also to the District of Columbia and to the territories.

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2 The words used are capitation or other direct tax." In a recent decision (Springer vs. United States, 102 U. S., 586; Otto, XII.), the supreme court has affirmed the already dominant view, that only poll-taxes and taxes on real estate are direct taxes within the meaning of the constitution. An income tax thus comes under neither of the constitutional provisions cited.

3 Schlief's view (pp. 233, 234), that this refers only to articles exported from one state of the Union into another, has never found a champion in the United States and never can find one. The debates of the Philadelphia convention over this paragraph were a struggle between the northern and southern states. The latter resisted with all their might the attempt to impose an export duty on their staple products, the result of slave labor, which were sent mainly to Europe. (See Elliot's Debates, V., 302, 357, 391, 432, 454, 538, 539.) The fact that the confederate states imposed a heavy tax on the exportation of cotton shows that the fear that congress for fiscal reasons would seize this means of raising money might easily have been justified, at least in times of distress.

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not be exercised. Above all, everything which comes exclusively within the jurisdiction of the states must be left alone by congress. Every tax which is confessedly laid for a private purpose is unconstitutional. But the tax laws of congress never specify an object to which the funds yielded by the tax shall be applied. The courts are therefore not in a position to guard against the burdens imposed by a law upon the ground that an unconstitutional application of the resulting funds is intended. The constitutionality of federal taxes and of the use made of the federal funds are wholly distinct questions, which must be kept far apart. So far as appropriations are concerned, the courts evidently should decide against the power assumed by congress only in perfectly clear cases. For, in the nature of things, the legislative and not the judicial power has to discover what the “general welfare" demands and what may promote it. In congress, however, the very comprehensiveness and vagueness of the expression make it possible to raise the constitutional question continually, but the decision is usually made from a political rather than a legal standpoint, however much legal arguments may have been formally pushed into the foreground during the debate. The legislative history of the Union, especially until the outbreak of the rebellion, forms a continuous chain of illustrations of this fact. Protective taxes and those levied for the so-called "internal improvements," i. e., building roads, improving rivers, etc., have been claimed to be unconstitutional. Theoretically the contest is not entirely at an end at the present day, but the actual development of affairs has been so great that the one set

1 Gibbons vs. Ogden, Wheaton, IX., 199.

2 See a number of instances and the judicial decisions upon them in Cooley, Principles, 58.

of contestants carry on the conflict on politico-economical grounds exclusively, and the others make their defense on the basis of the industrial and political interests concerned in the particular case, unless, indeed, no national importance can be given to the interest in dispute.

Finally, the states' concurrent right of taxation puts certain limitations upon the congressional right. Both are alike limited by several express provisions of the constitution. Without the consent of congress, the states can burden imports and exports with imposts of any kind whatever, only so far as is absolutely necessary for the execution of their inspection laws (art. I., sec. 10, § 2).' The states cannot levy a tonnage tax without the consent of congress (art. I., sec. 10, § 3). If, however, the conclusion were drawn from these express prohibitions that the states' right of taxation were subject to no further limitations, they might exert it in such a way that the federal government would be unable, except under great disadvantages, and perhaps not able at all, to carry out what it had found best to do in the discharge of its constitutional functions. And if the congressional power of taxation were subject only to the restrictions. thus far noted, congress could so use it that the states would be hindered and crippled, even when they were acting within the constitutional limits of their authority. In either event, violence would be done to the fundamental idea of the constitution, that the federal government and the state governments have the same aimwelfare of the people. The concurrent right, therefore, is subject in each case to those limitations which are necessary for the security of the interests entrusted by

the

1 The net proceeds of such imposts must be paid over to the United States, and all such laws are subject to the revision and control of congress.