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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 powers). This argument, which the supreme court has since formulated most precisely in Martin vs. Hunter (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 limitation 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
we have recognized as a necessity lying in the very nature of the thing. It is partly due, too, to the fact that the constitution was not, to the people who gave it, an end in itself, but a means to the end, and this end seemed to demand that, in regard to certain things, the establishment of an inviolable principle should be avoided.
$ 18. THE LIMITS OF AUTHORITY. This has especial reference to the dividing line between the authority of the federal powers and of the states. The all-pervading fundamental thought of the constitution is that certain interests are common to the whole people of the Union, and that therefore, in regard to these, political powers have been intrusted to a central government, and that other interests and needs must be left to the care of the states, because they vary according to locality. But the people have, in addition, rights, interests, and needs which are both national and local in their nature, and, in regard to these, both the federal and state governments must have duties and powers corresponding to these duties. It by no means follows from the delegation of a power to the federal government that the same power does not belong to the states. In every single case, thequestion must be put whether the delegation of authority to the one involves its withdrawal from the other. If this question cannot be answered affirmatively, one must further inquire what relation prevails in general between the concurrent powers of the national government and the states. When the constitution expressly withdraws. something from the states, or gives it exclusively to the national government, of course no difficulty can arise. Even when neither of these contingencies happens, the exclusive power of the national government must be recognized, if the nature of things forbids the subjection of the citizens in regard to the question at issue to two different and independent legislative wills. Again, some powers are delegated to the federal government without any obligation to use them. Thus congress has a right to pass a general bankrupt law, but it need not do so. It has repeatedly done so, and repeatedly repealed the law at short intervals. In such a case, there is nothing to prevent the states from exercising a similar power, as long as the federal government does not exercise it, but as soon as the latter does so, the state laws will ipso facto become of no validity unless the nature of the matter permits two different legislative wills to act upon it at the same time. Here, in distinction from the case last mentioned, the exclusiveness of the federal authority does not depend upon the nature of the right in itself, but it comes into force for the first time by the use of the right. Finally, it often happens, as for example, in regard to the right of taxation, that it is either convenient or even necessary that the individual should be subject at the same time to different legislative wills. But the fact that this may happen without conflict between these wills does not exclude the possibility of conflict. If conflict comes, the state laws must yield to the national laws, but they yield to them only so far as they are irreconcilable with them. In principle, the authority of the states suffers no wrong, but they cannot exercise it in a particular way because the national government, in regard to the method of exercising the same power, has so far the preference that the accomplishment of its will cannot be interfered with, and of course not actually hindered. If a conflict of rights cannot happen, yet, from the manifold nature of these legal possibilities, conflicts over rights may easily arise. And even when the respective spheres of the federal and of the state governments do not intersect each other in this way, yet, of course, a
question may arise between them under every provision of the constitution, as to whether each of them has acted within its constitutional powers. The framers of the constitution could not have overlooked this, and hence it is a priori evident that they must have taken care to bring about a legal decision of all such questions. If this were not so, the corner-stone of their whole building would have been wanting. But if this is so, then no ground is left for seeking such remedies as nullification, which can be based upon not a single word in the constitution. It is not by the spinning of a web of logic out of unproved and unprovable assertions that we can find what the constitutional law upon this point must be. The constitution shows what the constitutional law is.
§ 19. CONFLICTS OF AUTHORITY. If the rule that words are to be understood in their natural sense is followed, all difficulties which arise from the doctrine of state sovereignty in regard to the decision of unavoidable conflicts of authority disappear. The constitution is not a compact between the federal government and the states, and inasmuch as they do not stand in the relation of parties to each other or of parts of one another, there is no need of a common arbiter superior to them to decide questions between them. The non-existence of such an arbiter, therefore, does not imply that either of the alleged parties must ultimately decide for itself. The peo-, ple of the United States and the population of the states are the same individuals. Federal government and state governments are their creatures, and have the same object — the welfare of the people. The co-ordination of the federal government and of the states, so far as the affairs of the commonwealth are concerned, is an absurdity just as it is an absurdity to claim that the federal government, the creature of the constitution, is one of the par