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tenth amendment is conclusive. It says: “The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.” We are considering this tenth amendment here only in regard to the matter immediately before us.
It is evident that among the rights which are neither given to the federal government nor reserved to the separate states is the weightiest of all; yes, the one which embraces all others, i. e., the right to change the constitution and to partition power in whatever way is desired, between the federal government and the states.? The sovereign people
States, independent of any other earthly power, and, of course, cannot be destroyed or abridged by the laws of any particular state.” There are numberless judicial decisions against this view, but, nevertheless, a state law which forbade the open carrying of arms has been declared unconstitutional.
1 Cooley, Principles, 29, says that whatever is not granted to the federal government belongs to the states, or to the people thereof. The expression “ people” in the tenth amendment is generally understood in this way. In maintenance of this view, it is ordinarily said that here the phrase is used that powers are “reserved to” the states and the people, while the ninth amendment speaks of powers “ retained by” the people. I do not overlook the weight of this reasoning, but yet cannot persuade myself that here only the people of the separate states are meant. According to the context, certainly another meaning is possible, and the great care with which the constitution has been drawn throughout suffices to show that the "thereof” which would have excluded every doubt would have been added if only the people of the separate states had been spoken of. Be this as it may, the views expressed in the text would not be influenced thereby, because they need not be made dependent upon the tenth amendment. Jameson (p. 86) is of the opinion that this amendment relates “not to the people of the states but to the people of the Union.”
2 As long as the political nature of the United States is not subjected to a change which, in the essential sense of the word, is material, this can happen only by increasing, diminishing, or in some way
thus did not, in adopting the constitution, leave the
1 Only on one point can it be doubtful whether a constitutional change can be made without the consent of all 'the states. Article V., which relates to the amendment of the constitution, provides “that no state, without its consent, shall be deprived of its equal suffrage in the senate.” If a change in the constitution on this point
$ 16. THE AUTHORITY OF THE FEDERAL GOVERNMENT AND OF THE STATES. The authority of the federal govern
. ment, as well as of the states, is a limited one, and the boundary between the two is set forth in the constitution. From the “nature of the state," from the “ reason of the state," from “public opinion," from political policy, and even from necessity, the federal government can deduce no powers whatever.' It has no inherent rights whatever. All its powers are delegated, and it has only the powers which are given it by the constitution. It is by no means necessary, however, that the delegation should be expressed in so many words. The provision of the articles of confederation on this point contains the word "expressly," and when the tenth amendment was discussed in congress, it was moved to incorporate this word in the constitution. Madison and others opposed it on the ground that general expressions must be used in the constitution, if it was not to descend into the most minute particulars. A stiff and literal interpretation of these clauses is not to be given, for the constitution was framed, not for the moment, and not in relation to one fixed state of facts, but with the idea of its
should be determined upon by a constitutional majority, and a state which did not consent should thereby be deprived of its equal representation in the senate, the danger against which the states were to be absolutely assured would be brought about in an indirect way.
The supreme court says that the constitution “is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” The doctrine that it can be thrust on one side in order to meet the pressing necessities of a great crisis has the most destructive consequences. It “leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the constitution, has all the powers granted to it which are necessary to preserve its existence.” Ex parte Milligan, Wallace, IV., 120, 121.
lasting for generations and meeting the demands of constantly changing conditions of affairs. Every power, therefore, of such a general character must include also all the powers which are naturally implied in it and are required for the attainment of the end sought by it (implied pow ers). This argument, which the supreme court has since formulated most precisely in Martin vs. IIunter (Wheaton, I., 304), was convincing, and the proposal was not adopted. If it had been, a change in principle would have been made in the constitution by this tenth amendment. The nation would have gone back in part to the fundamental ideas of the confederation,-ideas which were purposely and decisively opposed by the constitution. If congress,
, in the paragraph already quoted, was authorized to “ make all laws which shall be necessary and proper" to carry out any of the powers delegated it by the constitution, yet this "necessary" is not to be understood in the
“ absolute sense of the word. The “proper” qualifies it. The assertion that congress can use only the means, without which it would be absolutely impossible to discharge the task imposed upon the different federal powers by the constitution, imputes an absurdity to the framers of the constitution. If the end is constitutional, congress has free choice of any and all means which in the nature of things correspond to the end to be reached, so far as their use is not forbidden it by the constitution. Whether they are proper, congress alone is to judge. This is a question, not of law, but of politics. The powers of the federal government are in exact relation with the tasks imposed upon it. Paragraph 18 of the eighth section of the first article is just as little a source of new and independent powers for congress as the tenth amendment is a limita. tion of the sphere of authority provided by the constitution for the national government.
1 In a certain way, therefore, it is right to say that not only the powers of congress, but much more the matters in regard to which congress is empowered to act, are set forth in the constitution, but, in my opinion, Tiffany (p. 179) puts this too baldly.
$ 17. INTERPRETATION AND CONSTRUCTION OF THE CONSTITUTION. The two provisions mentioned simply formulate and make precise the fundamental principles which control the interpretation and construction of the whole constitution. We must apply to them, as well as to the rest of the constitution, the further principle that words are to be understood in their natural and — when a technical expression of different meanings is used — in their ordinary sense. No violence must be done to them. Their scope must not be stretched by skillful interpretation. They must not, however, be too literally read. Moreover, the same word has by no means the same meaning in every part of the constitution, and as every single word must be interpreted by its context, so must every single clause be read and interpreted in unison with all the other clauses. The constitution is a whole. It is not to be made an arena for juristic hair-splitting. In every doubtful case, the point of view from which to ascertain the true intent of the framers of the constitution must be the general end which the provision was intended to serve. Judges as well as law-givers must recognize the absolute impossibility of any conflict between the different provisions of the constitution. Since the will of the people as expressed in the constitution is unconditionally supreme, the fact must be recognized that this will is never untrue to itself, and is always entirely conscious of itself. But the expression of this will cannot always be put with such absolute certainty as to leave no room for honorable differences of opinion. This is implied, indeed, in that general method of expression in the constitution which