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it with certain powers." 1 While such is undoubtedly the fact, it was still fortunate that the Convention inserted the clause in the instrument, so as to remove all doubt on the subject.
414. The Theory Carried into Practice.-From the first, Congress has legislated on the theory of implied pow
It has built light-houses, improved rivers and harbors, laid embargoes on commerce, established banks, given the people of cities free mail-delivery, provided money-order facilities, created mints and assay-offices, inspected steamboats, established a National board of health, constructed roads, promoted education--these and a thousand other things that are not mentioned in the Constitution.
415. Two Schools of Construction.— The powers of the National Government are the great constitutional question of the National history. It has called into existence two schools of politics, Strict-construction and Looseconstruction. The founders of these schools were Thomas Jefferson and Alexander Hamilton, The first school have clung to the enumerated powers; the second have emphasized the implied powers. The first give prominence to the States; the second seek to give to the Nation strength and dignity. The first lay stress on Amendment X.; the second on clauses I and 18 of section 8. Clause 1 is sometimes called the "elastic clause" and the "general welfare clause," and it is the great bulwark of the party founded by Hamilton.
416. Limitations of the Two Schools.-It must not be supposed, however, that Strict-constructionists as a body have denied that there are implied powers, or that Looseconstructionists as a body have denied that the States have rights. The question is a relative one, viz.: How far shall the doctrines of State rights or of implied powers be pushed ? Each school has tended to exaggerate its chosen principle. Extremists of the one school have belittled the Nation, extremists of the other have belittled the States. 1 The Federalist, No. 39.
Either theory pushed to an extreme destroys the Constitution. Strict-construction thus pressed makes the Union a rope of sand; Loose-construction, the will of Congress the supreme law of the land. Statesmen and parties have sometimes shifted their principles of construction, owing to political conditions. Strict-constructionists in possession of the Government have strongly emphasized implied powers; Loose-constructionists in opposition have emphasized State rights as strongly. Still, the dividing line is distinctly traced in history.
417. Questions involving Construction.-A few of the many questions involving methods of construction may be particularized.
1. In 1791 Mr. Jefferson opposed the first United States Bank on the ground that the Constitution did rot authorize such an institution. Hamilton defended it on the ground that it was necessary to create and maintain the public credit, to carry on the fiscal business of the Government, and to promote the general welfare. In 1817 the party that Jefferson had founded, chartered the second Bank for substantially the same reasons that Hamilton had assigned for chartering the first one. The Supreme Court in 1820 declared the Bank constitutional, but President Jackson, in 1832, vetoed a bill rechartering it, because, he said, it was unconstitutional. When the present system of National Banks was created in 1863, the Democratic party stood on Strict-construction ground, the Republican on Loose-construction ground. The Supreme Court having decided that Congress has jurisdiction over the subject, constitutional objections have practically ceased. This history was in substance repeated in relation to legal tenders.
In 1806 Congress made its first appropriation for the Cumberland Road, connecting the Sea-board with the Mississippi Valley; and this was the beginning of such improvements made at the expense of the National Government. The question of constitutional power was raised, and from 1820 to 1860 internal improvements were a party question. Presidents of the Strict-construction school sometimes vetoed bills for such improvements; the Whig party always favored a liberal policy. At present public improvements can hardly be called a constitutional question; the annual River and Harbor Bill is not a party measure. The constitutional argument in favor of these appropriations has assumed such forms as these : They promote the general welfare; they are necessary to carry out the expressly delegated po rs; they contribute to the common defense ;
Congress may establish post-roads and provide for the transportation of troops and munitions of war.
3. In organizing the revenue system of the Government, Hamil. ton recommended that customs-duties be so levied as to afford incidental protection to American manufacturers. This recommendation was embodied in laws, and from that time the protective principle has commonly been more or less recognized in revenue legislation. It has been denied that the Constitution gives Congress power to levy duties and other taxes save for reveuue purposes ; to which it is replied that the general-welfare clause gives all the power that is needed.
4. Mr. Jefferson in 1803 thought the annexation of Louisiana and other foreign territory unconstitutional; history made it necessary, the Supreme Court gave its sanction, the Nation acquiesced, and the power has long been admitted without question.
These are but a few of the many questions that could be mentioned under this head. It has been denied that the census, as now organized, is constitutional, since the Constitution merely mentions an enumeration of the people. The Bureau of Education also has encountered constitutional objections.
418. Movement of Political Thought.--This brief review shows that certain questions once discussed in the constitutional forum have been practically removed from that forum, and become simply questions of political expediency. It shows, also, that Loose-construction has made steady progress since the foundation of the Government. In fact, the Constitution of 1895 is, in practice, a very different instrument from the Constitution of 1795. Propositions that would then have been opposed as invasions of State rights, are now accepted, even by Strict-constructionists, as a matter of course. Among the causes of this movement of political thought, these may be mentioned :
Territorial growth and the formation of new States that were, in great degree, the creations of the Federal Government. When a Loose-construction party has obtained possession of the Government, it has carried its ideas into practice, and the Strict-construction party succeeding it, finding that those views have become familiar to the people, have accepted some of them. The exercise of the unlimited war power, especially in the Civil War, has tended enormously to centralize power. Then, the non-political decisions of the National Courts have uniformly tended strongly to Loose-construction principles. And finally, social, industrial, and commerciai changes have compelled Congress to assume new powers.?
1 See Lalor's Cyclopædia, “ Construction.”
THE LIMITATIONS OF THE UNION.
ARTICLE I. 419. Reasons for Such Limitations.--As we have seen, the Government of the United States is one of limited or delegated powers. The first limitation, and the greatest one of all, is the States, to which powers not delegated to the Union are mainly reserved. But implied powers, in the very nature of the case, are matters of opinion or judgment. Hence Congress, in the use of its discretion, might exercise powers that the people did not intend to delegate. Public discussion and the elections would correct such abuses of power in ordinary cases; but there were some points deemed so important by the Federal Convention as to demand safeguards in the form of positive prohibitions. Some of these powers are forbidden merely because they were deemed inexpedient or impolitic; others, because their exercise would lead to injustice and oppression.
Section 9, Clause 1.–The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
420. The Slave Trade.- All the States but North Carolina, South Carolina, and Georgia had prohibited the slave trade before 1787, and a majority of the Convention desired to put Congress in a position to make the prohibition universal. But these three States objected. After no little dissension, the difficulty was adjusted, as above, in the third compromise. The tax permitted was never imposed. In 1794 Congress prohibited the exportation of slaves, and in 1807 it prohibited their importation, the act to take effect January 1, 1808. In 1820 it declared the Slave trade piracy.
Section 9, Clause 2.—The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.
421. The Habeas Corpus in England.-The writ of habeas corpus is one of the most ancient and valuable political institutions of England. Its origin dates from before Magna Charta. Kings sometimes strove to restrict its operation, or to ignore it altogether, but these attempts came practically to an end with the Habeas Corpus Act of 1679. For centuries the writ has there been the main safeguard of personal liberty.
Hallam thus explains the ancient operation of the writ: “From earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the Court of the King's Bench a writ of habeas corpus ad subjiciendum directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the court might judge of its sufficiency, remand the party, admit him to bail, or discharge him, according to the nature of the charge.
422. The Operation of the Writ.- A prisoner, or some person for him, makes an application to a judge of competent jurisdiction, alleging that the prisoner is unlawfully confined, reciting the history of the case, and praying that he be set at liberty. The judge, if he thinks the facts call for his interference, issues a writ of habeas corpus commanding the officer having the person in custody to produce him in court and to show reason for his detention. If the officer gives a good reason for his action, the judge leaves the prisoner in his hands; if not, he discharges him or admits him to bail. The writ is sometimes used to liberate persons confined in hospitals for the insane, and to obtain possession of children who are in the custody of other persons than the claimants. It takes its name from the words
i Constitutional History of England, Vol. III., p. 16. London : 1832.