1 Art. vi., 2, 3, and Preamble.
2 Art. i., 7: 2.
3 The Supreme Court of Mississippi in Sproule v. Fredericks, 69 Miss. 898 (1892), decided that the Constitutional Convention of that State (1890) “wielded the powers of sovereignty specially delegated to it, for the purpose and the occasion, by the whole electoral body, for the good of the whole Commonwealth.” The Supreme Court of Pennsylvania in Wells v. Bain, 75 Pa. St. 39 (1874), decided that the Convention of 1872 was “not a co-ordinate branch of the government,” and possessed only “delegated powers.” The Supreme Court of the United States, through Marshall, C. J., decided in McCulloch v. Maryland, 4 Wheaton, 316 (1819), that the Constitution which came from the hands of the Federal Convention of 1787 “was a mere proposal, without obligation, or pretensions to it. By the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people; and is declared to be ordained, “in order to@ form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.” The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived by the State governments. The Constitution when thus adopted was of complete obligation, and bound the State sovereignties.” The character of the Constitution, its purport and principles, is examined in Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816). Decision by Story, J.
4 No. xxxix.
5 Art. v.
6 Constitution (1780 to date) Pt. I. Art. iv. The words “substitutes and agents” may be considered equivalent to the modern words “administrative officers.”
7 Art. iv., 4.
8 McCulloch v. Maryland, note, supra.
9 McCulloch v. Maryland, note, supra.
10 Idem. (The language of the Court slightly paraphrased.)
11 Art. v.
12 The Federalist, No. lxii.
13 McCulloch v. Maryland.
14 Art. i., 8: 1; but see Amendment XVI.
15 McCulloch v. Maryland.
16 Articles i., 8: 5; ii., 2: 2; i., 10: 3; i., 8: 2.
17 The License Cases, 5 Howard, 504 (1846); Kimmish v. Ball, 129 U. S., 217 (1889); Cook v. Marshall Company, 196 U. S., 261.
18 Discussed at length in the chapters on State Comity, and Commerce.
19 Art. iv. (and preceding note).
20 See also Chapters XII and XIII.
21 Barron v. Baltimore, 7 Peters, 243 (1833).
22 No. xxxix.
23 Cohens v. Virginia, 6 Wheaton, 382 (1821). Madison’s thought is incorporated into Weston et al. v. the City of Charleston, 2 Peters, 466 (1829.)
24 The Federalist, No. lxxxii.
25 Gallatin’s Writings, i., 11.
26 Sustained by Downes v. Bidwell, 182 U. S., 244 (1901).
27 The American Insurance Company v. Canter, 1 Peters, 511 (1828).
28 Compare the Preamble. The entire discussion in The Federalist is of the conformity of the Constitution to a republican government and of the necessity of governmental powers adequate to governmental purposes.
29 Art. x.
30 Marbury v. Madison, 1 Cranch, 176 (1803).
31 Every question in constitutional law, in the United States, sooner or later leads back to a question of sovereignty. What that sovereignty is can be known only by its operation,—that is, by political experience. What powers are delegated by the Constitution is the question answered (at least in part) by courts of law and legislatures, by publicists and by the actual administration of government. Widely divergent interpretations of that sovereignty and that law have been held throughout our history as a nation. These divergent opinions are recorded in the Debates during the formation and ratification of the Constitution; in the discussions incident to the Kentucky and Virginia Resolutions of 1798; in the discussions relating to Nullification, in 1833; again in 1860 and immediately prior; and in various decisions of the Supreme Court of the United States. Chief Justice Marshall’s decisions (some thirty-six in number), the opinion of that Court in his time, remain the classic interpretation of national sovereignty. The Federalist remains the classic contemporaneous interpretation of the Constitution.
The issue involved is, fundamentally, one of functions, and is viewed at different times with different understandings. As a practical question, it is one of jurisdiction as legally understood, but as a question of service as politically understood. Here enter many and diverse factors as morals, industry, communal interest, public safety, social needs, and the like. Questions growing out of these are not and cannot be decided finally by any generation. Each generation interprets these factors. Thus constitutional interpretation becomes, not a fixed quantity, but an adjustment to reason and necessity. Prudence dictates that interpretation be conservative. The constitutional and political history of America must be read along with its constitutional law. In addition to cases already cited in this chapter, the following may advantageously be read, though each contains matter of special application to other aspects of the subject: Ex parte Siebold, 100 U. S., 371 (1879); The Civil Rights Cases, 109 U. S., 3 (1883); Rogers v. Alabama, 192 U. S., 226 (1904).
32 Marbury v. Madison, 1 Cranch, 177.
33 Art. i., 1.
34 Art. vi., 2.
35 A typical formulation in Massachusetts, (1780) Pt. I., xxx. Discussed in Taylor v. Place, 4 R. I., 324 (1856.)
36 McCulloch v. Maryland, 4 Wheaton, 316.
37 Art. i., v.; Amendment XII.
38 “The Sources and Authorship of the Constitution,” in the author’s Constitutional History of the United States, iii., 464–515.
39 Art. i., 8: 1.
40 Art. i., 9: 2.
41 Id., 3.
42 Id., 5.
43 Id., 6.
44 Id., 7.
45 See the Chapters on The Law of Limitations, and The Law of Fundamental Rights.
46 Pennsylvania, 1873, Art. i., 26.
47 Thus annulling Art. i., 2: 3.
48 It will be profitable to compare this amendment with the doctrine laid down in Marbury v. Madison, 1 Cranch, 137. See also The Reconciliation of Government and Liberty, J. W. Burgess (1915).
49 The fundamental principle of judicial interpretation is laid down in Marbury v. Madison; the principle is examined in the Chapter on The Law of Judicial Power.
50 Art. iii.
51 This point is elaborated and examined by the Supreme Court in the decision declaring the Civil Rights Bill of April 9, 1866, unconstitutional. Civil Rights Cases, 109 U. S., 3 (1883). The doctrine annunciated is that Congress has no power to legislate generally upon subjects, power over which is reserved to the States by the Tenth Amendment.
52 See authorities at close of preceding Chapter; also Chapter XI.
53 In this connection as to the President see Field v. Clark, 143 U. S., 649 (1892).
54 Art. i., 8: 18.
55 Preamble. As to “necessary and proper,” see United States v. Fisher, 2 Cranch, 396; McCulloch v. Maryland, 4 Wheaton, 421.
56 U. S. v. Fisher, supra.
57 The great opinions interpretative of the Constitution have each their historical setting. Illustration of this is given in the annotated editions of Marshall’s decisions, e. g., J. P. Cotton’s edition, 2 vols. 1905.
58 For a detailed history of the first fifteen amendments see the author’s Constitutional History of the United States; the social and political history from 1789 to 1870 are related, respectively, by John Bach McMaster in his History of the People of the United States, and by James Schouler in his History of the United States. J. F. Rhodes in his History of the United States from the Compromise of 1850, 7 vols. (1850–1877), gives the history of congressional legislation and of judicial interpretation during the period. Much of the history relevant to the great decisions of the Court is given in the decisions.
59 McCulloch v. Maryland, 4 Wheaton, 316 (1819). Many later decisions apply this principle.
For an examination of the character and scope of the Legislative Department, see
Taylor v. Place, 4 R. I., 324 (1856); Dalby v. Wolf, 14 Iowa, 228 (1862); Stone v. City of Charleston, 114 Mass., 214 (1873); Barrno v. Baltimore, 7 Peters, 243 (1833); Calder v. Bull, 3 Dallas, 386 (1798).
The powers of Congress over taxation, commerce, the currency, war, territories, outlying possessions, etc., are particularly examined under appropriate headings in later chapters.
In addition to cases cited in the present Chapter, and to the above, and relating to the powers of Congress, see Gibbons v. Ogden, 9 Wheaton, 1 (1824); The Mayor, etc., of the City of New York v. Miln, 11 Peters, 102 (1837); The License Cases, 5 Howard, 504 (1847); Sinnot v. Davenport, 22 Howard, 227 (1859); Gilman v. Philadelphia, 3 Wallace, 713 (1865); Henderson et al. Mayor of the City of New York, et al. Commissioners of Immigration v. North German Lloyd, 92 U. S., 259 (1875); Hull v. De Cuir, 95 U. S., 485 (1877); Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S., 1 (1877); County of Mobile v. Kimball, 102 U. S., 691 (1880); Williamette Iron Bridge Co. v. Hatch, 125 U. S., 1 (1888).
The best brief treatise on the legislative in America is American Legislatures and Legislative Methods, by Paul S. Reinsch, 1907; the most exhaustive and authoritative treatise is Constitutional Limitations, by Thomas M. Cooley. The general powers of Congress are discussed by Justice Story in his Commentaries on the Constitution, and by Chancellor Kent in his Commentaries on American Law.
See also the authorities cited in the present work on The Law of the Judicial Power.
60 No. xvi.
61 No. xxxi.
62 McCulloch v. Maryland, 4 Wheaton, 316 (1819).
63 The Federalist, xxxii.
64 Idem. and Weaver v. Fegely, 29 Pennsylvania State, 27 (1857).
65 Moore v. Houston, 3 S. and R. (Pa.), 179, and the cases cited in Weaver v. Fegely.
66 See cases as under preceding note.
67 Baldwin v. Hale, 1 Wallace, 223 (1863).
68 Baldwin v. Hale, supra.
69 Juilliard v. Greenman, 110 U. S., 421 (1884), citing and quoting McCulloch v. Maryland.
70 Art. i., 8: 1, 2, 5.
71 Distinctions as to United States notes, coin, currency, legal tender, etc., are brought out in Juilliard v. Greenman, supra; Hepburn v. Griswold, 8 Wallace, 603 (1869); Parker v. Davis, 12 Wallace, 79 (1871); Trebilcock v. Wilson, 12 Wallace, 687 (1871).
72 Knox v. Lee, Parker v. Davis, 12 Wallace, 554 (1871).
73 An account of the struggles of political parties, and of the successive decisions of the Supreme Court as to Legal Tender Acts belongs to the history of the law rather than to a statement of the essentials of present constitutional law. Accounts of this struggle, available in histories of the United States, may be compared with Justice Stephen J. Field’s account in J. Norton Pomeroy’s Some Account of the Work of Stephen J. Field as a Legislator, State Judge, and Justice of the Supreme Court of the United States (1881), (Edition by George C. Gorham, 1895) pp. 65–86. Mr. Justice Field’s dissenting opinions from the decisions of the Supreme Court which sustain the constitutionality of the Acts are based largely on his conception of the principle of the obligation of a contract as contained in the Constitution respecting “gold and silver coin.” For the history of the Acts, the decision of the Court invalidating them (1869); the increase of the membership of the Court (1870); the reversal of the earlier decisions (1871), and the final decision in Juilliard v. Greenman (1883), consult Rhodes, vi., 268, 270–273, and Note.
74 Art. i., 10: 1.
75 Briscoe v. Bank of Kentucky, 11 Peters, 257 (1837).
76 Darrington v. The Bank of Alabama, 13; Howard, 12 Briscoe v. Bank of Kentucky, supra.
77 Art. i., 8: 6.
78 Id. 5, 10: 1.
79 United States v. Marigold, 9 Howard, 560 (1849); Fox v. Ohio, 5 Howard, 410.
80 In re Rapier, 143 U. S., 110 (1892); Battle v. U. S., 209 U. S., 36.
81 Wheaton v. Peters, 8 Peters, 591 (1834).
82 Vanini et al. v. Paine et al. 1 Harr. (Del.) 65, quoted in Patterson v. Kentucky, 97 U.S., 501 (1878).
83 Id. See also Herdic v. Roessler, 109 New York, 127 (1888); Hill and Co. Lmtd. v. Hoover, 220 U.S., 329. “Where a suit is brought on a contract of which a patent is the subject matter, either to enforce such contract, or to annul it, the case arises on the contract and not under the patent laws.” Hartell v. Tilghman, 99 U.S., 558. See also Dale Tile Mfg. Co. v. Hyatt, 125 U.S., 46 (1888).
84 Rex v. Dawson, 5 State Trials.
85 U. S. v. Smith, 5 Wheaton, 153 (1820).
86 Art. iii., 2: 1.
87 U. S. v. Rodgers, 150 U. S., 249 (1893).
88 Art. i., 8: 11; The Prize Cases, 2 Black, 635 (1862).
89 Brown v. U. S., 8 Cranch, 110; American Insurance Co. v. Canter, 1 Peters, 511; Lamar ex. v. Browne et al., 92 U. S., 187; Mormon Church v. U. S., 136 U. S., 1.
90 Hepburn v. Ellzey, 2 Cranch, 445 (1804).
91 Barron v. Baltimore, 7 Peters, 243 (1833).
92 Metropolitan R. R. Co. v. District of Columbia, 132 U. S., 1 (1889).
93 Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S., 525 (1885).
94 Art. iv., 3.
95 Dorr v. U. S., 195 U. S., 138 (1904); Hawaii v. Mankichi, 190 U. S., 197 (1903); Dooley v. U. S., 183 U. S., 151 (1901); Downes v. Bidwell, 182 U. S. (1901); Rasmussen v. U. S., 197 U. S., Weems v. U. S., 217 U. S., 349. (But see dissenting opinions in above cases.)
96 Downes v. Bidwell, supra, and cases and laws therein cited and quoted.
97 Idem.
98 There are powerful dissenting opinions in the various Insular Cases. The chief objection to the unlimited control of insular territory by Congress is that Congress itself, by the Constitution, possesses only limited powers. How can a limited Congress exercise unlimited powers?
99 Downes v. Bidwell, supra. (The Court cites, in confirmation, the history of Congress and of the British Parliament.)
100 Bank of Commerce v. New York City, 2 Black, 620 (1862) quoting from McCulloch v. Maryland, 4 Wheaton, 431 (1819). The principle is laid down in the decision that “the sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but it does not extend to these means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States.” Id. 429.
101 Bank of Commerce v. New York City, supra.
102 Loan Association v. Topeka, 20 Wallace, 655 (1874), quoting Cooley on Constitutional Limitations, 479.
103 P. R. Co. v. Pennsylvania, 15 Wallace, 300 (1872). The constitutional use of the taxing power by the United States and by the several States is examined by Hamilton in The Federalist, No. xxxii.,—the classic contemporaneous exposition of the taxing clauses of the Constitution. For a judicial examination of these clauses see Transportation Company v. Wheeling, 99 U. S., 273 (1878). The idea held both by Hamilton and by the Court is that taxation is the exercise of sovereign power; that “all subjects over which the sovereign power of a State extends are objects of taxation,” but that “objects over which it does not extend, as for example, the means and instruments of the general government, are exempt from taxation.” (The quotation in Transportation Co. v. Wheeling, from McCulloch v. Maryland is not verbally accurate.)
104 The phrase (Federalist, No. lxii.) may be Hamilton’s or Madison’s.
105 P. R. Co., v. Pennsylvania, 15 Wallace, 300.
106 This principle applies also in international law.
107 The principle is established in McCulloch v. Maryland.
108 Kirtland v. Hotchkiss, 100 U. S., 491 (1879).
109 Kirtland v. Hotchkiss, supra. Thus, “If the law treats the mortgagee’s interest in the land as real estate for his protection, it is not easy to see why the law should forbid it to be treated as real estate for the purpose of taxation.” Savings and Loan Society v. Multnomah County, 169 U. S., 421 (1898).
110 McCulloch v. Maryland, supra, quoted in The Collector v. Day, 11 Wallace, 113 (1870).
111 The Collector v. Day, supra. (The Court quotes the Tenth Amendment, in this connection, as the basis of its decision.)
112 Idem.
113 The Collector v. Day, supra.
114 Id.
115 The Collector v. Day, supra.
116 Id.
117 Amendment XVI.
118 Compare the effect of the Thirteenth Amendment, the Fourteenth and Fifteenth Amendments on the decision of the Supreme Court in Scott v. Sandford, 19 Howard, 393 (1857).
119 To what extent a salaried official of a State is exempt from inclusion of his salary as income taxable under the Sixteenth Amendment is as yet not determined by judicial decision. “The corporate franchises, the property, the business, the income of corporations created by a State may undoubtedly be taxed by the State; but in imposing such taxes care should be taken not to interfere with or hamper, directly or by indirection, interstate or foreign commerce, or any other matter exclusively within the jurisdiction of the Federal government. This is a principle so often announced by the courts, and especially by this court (the Supreme Court of the United States) that it may be received as an axiom of our constitutional jurisprudence.” Philadelphia and Southern Steamship Company v. Pennsylvania, 122 U. S., 326 (1887).
120 United States v. R. R. Co., 17 Wallace, 322 (1873).
121 See the Chapter on The Law of Fundamental Rights, post.
122 Wisconsin Central R. R. Co. v. Price County, 133 U. S., 496 (1890). As to exemptions, the decisions are conflicting. Not infrequently notices may be seen of exemption of manufacturing plants, or other industrials, from taxation, if they locate within a community. Mississippi in its constitution of 1890 made such exemptions by special ordinance. Such exemption has been held valid in Franklin Needle Co. v. Franklin, 65 N. H., 177; Florida Central Railway Co. v. Reynolds, 183 U. S., 476; Per contra, Brewer Brick Co. v. Brewer, 62 Maine, 62.