Читать книгу The Essentials of American Constitutional Law - Francis Newton Thorpe - Страница 6

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13. The organization of the government of the United States reflects the original and supreme will of the people as they have seen fit to assign to different departments of that government their respective powers. “The powers of the Legislature are defined and limited; and that these limits may not be mistaken, the Constitution is written.”32 Thus the Constitution declares that “all legislative powers herein granted” are vested in Congress.33 The inevitable conclusion is “no grant, no power.” Congress possesses only delegated powers. If an issue arises under an act of Congress, there must ever be the fundamental question of authority for the act. This question of authority once settled, the act, by the terms of the Constitution itself, is a part of the supreme law.34 Rarely is an act of Congress declared unconstitutional. Legislative experience avoids the enactment of laws whose constitutionality is doubtful.

14. The general American doctrine is of the separation of delegated powers, and is commonly set forth in State constitutions.35 Such separation of powers is not expressly declared in the Constitution of the United States; the principle here is of limitation no further than is necessary for the protection of each department of government. Fundamentally it is a question of functions. Whatsoever authority is necessary and proper for a department of government to exercise, belongs to that department. The separation of powers,—legislative, executive, judicial,—is a matter of agreement or convention made by the sovereign. Government is a unit, not a tripartite machine or device. But in order to administer government, and make it, as the business man would say, “a going concern,” it is conceived and organized into departments. Sovereignty in America vests legislative power, so far as the people of the United States have delegated that power,—in Congress. The Constitution does not specify all the powers so delegated. Such specification is impossible. Such specification “could scarcely be embraced by the human mind”; its details “would partake of the prolixity of a legal code.”36 The practical procedure is followed in the Constitution of selecting general—that is, large, comprehensive powers, or groups of powers, and authorizing Congress to exercise them. As a matter of practical government, had the American people chosen to declare in the Constitution that Congress shall have power to make all laws necessary and proper for the government of the United States, the grant would be essentially the same as that made by naming the powers of Congress in that instrument. The powers delegated to Congress are mentioned chiefly in the eighth section of the first article of the Constitution. In other parts of the same article other powers of Congress are declared, such as the power of each House over its members; to choose a presiding officer; the power of the Representatives to impeach; of the Senators to convict,—or try impeachments, and the respective powers of the Houses, under some circumstances, to elect a Vice-President, or a President,—and other powers, as of proposing amendments.37

15. The powers of Congress, delegated to it as a whole, or to its respective Houses, and largely regulative of congressional membership and procedure, may be described as necessary parliamentary powers, excepting the powers of the respective Houses in the selection of President and Vice-President. Parliamentary powers are functions essential to the efficiency of a legislative body, and they were worked out, largely, before and during colonial times. Such parliamentary functions were exercised by the British Parliament and by State Legislatures prior to the making of the Constitution. Indeed, the provisions respecting such powers, in the State constitutions from 1776 to 1787, were the immediate precedents for them in the Constitution of the United States.38 But when we speak of the legislative powers vested in Congress, we do not mean, commonly, these strictly parliamentary powers; rather do we mean another group or class of powers included under such headings as “taxation,” “money,” “commerce,” “banking,” “the army,” “the navy,” “territory,” and others of notable rank. Such powers as those indicate (or seem to indicate), a larger delegation of authority to Congress than its authority to regulate its membership. Whatever may be thought of the relative rank of the powers of Congress, all emanate from the same source, “the people of the United States.”

16. In determining the nature and extent of these powers, we are aided by the Constitution itself which sets limitations. Thus,

all duties, imposts, and excises shall be uniform throughout the United States.39 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.40 No bill of attainder or ex post facto law shall be passed.41 No tax or duty shall be laid on articles exported from any State.42 No preference shall be given by any regulation of commerce or revenue to the ports of one State over these of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another.43 No money shall be drawn from the treasury but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.44

In addition to these limitations, there are limitations set forth in the first ten, in the thirteenth, fourteenth, and fifteenth amendments. These amendments, in the aggregate, deny to Congress authority to violate what we commonly designate as fundamental rights. In other words, the people of the United States have given Congress no power whatever to imperil these rights: they are excepted out of the government of the United States.45

17. In the several States a like limitation of the powers of the Legislature is made in the constitutions. A typical statement of this limitation may be found in the constitution of Pennsylvania, in the last clause of the Declaration of Rights:

To guard against transgressions of the high powers which we (“the people of the Commonwealth”) have delegated, we declare that everything in this article (“the Declaration of Rights”) is excepted out of the general powers of government and shall forever remain inviolate.46

The discrimination here is between government and sovereignty by means of a clear limitation or denial of powers. Thus the carefully guarded fundamental rights are sovereign, not governmental rights. That the sovereign has the right or power to delegate any of these fundamental rights, or the control over them is a question in political science. That the sovereign, in the modern republic, has not so delegated them, is indisputable. Yet, in 1913 the people of the United States ratified the Sixteenth Amendment, namely, that “The Congress shall have power to lay and collect taxes on incomes from whatever source derived, without apportionment among the several States and without regard to any census or enumeration.”47 This amendment more nearly identifies government with sovereignty than any other in the Constitution. It removes limitations on the power of Congress with respect to what is commonly called “direct taxation.” It makes Congress practically sovereign in its power to impose such taxation and to collect such taxes. It does not require that direct taxes, like indirect taxes, shall be “uniform throughout the United States.” It is the first departure in America from the doctrine of limited government.48

18. Of the powers delegated to Congress by the American people it may be said that, save as excepted by the silence of the Constitution, or by positive limitation, they are universal and affirmative. Their extent as well as their nature are made known by interpretation,—that is, through the judiciary.49 Judicial interpretation must be distinguished from economic, industrial, political, or even moral interpretation. The Constitution provides only for judicial interpretation.50 The American people have vested legislative powers in Congress, and the exercise of them by Congress must be measured by the terms of the grant.51 Thus far the supreme test of the constitutional exercise of these powers is to compare the particular act of Congress with the Constitution. Shall the act overrule the Constitution, or shall the Constitution overrule the act? This is the final test of congressional exercise of powers delegated; it is the essential measure of federal legislation. Practically it is congressional legislation which, sooner or later, brings out clearly,—or at least as clearly as the government of the United States can bring out,—the real nature of that government. Thus it is congressional legislation which, as tested in the courts of law, brings into view the implied and inherent powers of the federal government; the relations of that government with the States, and the powers of that government as to territories and outlying possessions.52 So, too, it is congressional legislation that determines the objects and the extent of taxation, both direct and indirect; that regulates commerce, coins money, and fixes its value; affords equal protection to citizens, and applies the police power of the United States. It is congressional legislation which largely determines the jurisdiction of federal courts and assigns duties and powers to the President.53 In brief, the legislative powers vested in Congress reflect the convictions of the people of the United States of the eighteenth century, when the trend of political thought was to dethrone kings and to enthrone legislatures, with basic regard for individualism. A like tendency and regard are discernible in the State constitutions of that period. The American people did not create an omnipotent Congress, but they created a Congress having few limitations and these they practically nullified by the “sweeping clause” which empowers Congress “to make all laws which shall be necessary and proper for carrying into execution,” the powers granted, “and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”54

19. The phrase “necessary and proper” practically includes all the purposes of government, and these the Constitution itself sets forth, as

To form a more perfect Union,

To establish justice,

To insure domestic tranquillity,

To provide for the common defense,

To promote the general welfare,

To secure the blessings of liberty

to themselves (“the people of the United States”) and their posterity.55

This exercise of power by Congress is essentially political, and Congress alone is judge of “the choice of means and is empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution.”56 This conclusion is inevitable. A legislative body could exist on no other principle. Thus it follows that necessity is supremacy, in the case of congressional legislation. To any understanding of American constitutional law, comprehension of this principle is fundamental.

20. May Congress abuse its powers? Possibly. The remedy is through popular election of members of either House, and repeal of the laws which—even though their constitutionality be sustained by the courts, may, in the judgment of the people, transcend limits popularly supposed to be placed on Congress. Thus there are two checks on congressional legislation: the courts of law and the votes of the people. It follows that the American sovereign—the people—may by their votes approve or condemn congressional legislation—approval or condemnation resulting in a continuance or a change of membership of Congress, in conformity to the relative strength of political parties. It is here that part of the unwritten constitution is disclosed. The written Constitution contains no reference to political parties, but actual government in the United States is by and through political parties who, as organized agencies of the public mind, give expression, in large measure, to the unwritten constitution. Interpretation of the Constitution, and of course, of the powers of Congress, is largely interpretation by political parties.

21. Two interpretations of the Constitution have evolved in America, the strict, or literal, commonly called the Jeffersonian, and the liberal, or interpretation according to the spirit of the Constitution, commonly called the Hamiltonian. Chief Justice Marshall was a disciple of Hamilton and enthroned his ideas in the decisions of the Supreme Court for thirty years, and these the first thirty years of the existence of the Court. Later judges, whatever their politics, have rarely departed from the course of interpretation laid down by Marshall. To what extent the political convictions of a judge determine his judicial decisions, and to what extent party doctrines find utterance in the decisions of courts of law are matters of opinion quite as diverse as the men who hold them. Yet, in order to understand American constitutional law it is necessary also to be familiar with American political and constitutional history. Without that history, that law lacks background and circumstance.57

22. In attempting, then, to understand the legislation of Congress, which is an exercise of delegated powers, it is also necessary to know the history of the times in which it was enacted. Thus the first ten amendments were added in response to a quite unanimous demand of the American people for what they considered at the time, 1789, an adequate protection of their fundamental rights. The Eleventh Amendment of 1798 grew out of the unwillingness of the people that a State should be made defendant in a federal court at the suit of a citizen of another State; therefore federal jurisdiction in such cases was denied. The Twelfth Amendment of 1804 was added to remedy a defect in the Constitution in the method and procedure of choosing the President and the Vice-President. The Thirteenth, Fourteenth, and Fifteenth Amendments, of 1865, 1868, and 1870, were added because of the negro race. The Sixteenth and Seventeenth Amendments, of 1913, were added after long agitation over direct taxation and the popular election of senators of the United States, the one essentially an economic, the other, a political question. The history of the times records how these amendments were brought about. So too does that history largely explain the legislation enacted by Congress by authority of these amendments.58

23. The essential fact as to the powers of Congress is of their limitation. Turning to the Constitution itself, one will find that it devotes nearly three times as much matter to legislative as to executive power; and nearly eight times as much matter to legislative as to judicial power. Doubtless this spatial distribution of powers (or limitation of powers) tells the whole story. Government is largely an affair of legislation. Essentially, government is the public business, controlled and administered for public or general purposes. Government, in a republic, may be said to express itself in laws. So important is this expression of the will of the sovereign, constitutional law consists almost wholly of the interpretation of legislation. This means that the principles of government are to be learned chiefly from the judicial decisions in particular cases; and this again means that the particular law having in due course come before the tribunal, that law, when tested by the supreme law of the land is sustained, or is declared to be without authority,—hence it is unconstitutional. In the final test, all legislation of Congress must stand the strain of this question: By what authority is this law made? We come then, sooner or later, in congressional legislation, to the supreme law of the land and to sovereignty in America,—“We, the people of the United States.”

24. It is a presumption of law, necessary in the conduct of government, that all acts of Congress are constitutional until pronounced unconstitutional by a competent judicial tribunal. An issue arising between parties involves a law. In deciding the issue the tribunal decides as to the constitutionality of the law, provided its constitutionality forms part of the issue. Unless the issue of the constitutionality arises and is before the tribunal, that body can make no decision respecting the constitutionality of the law. Thus whether or not the powers exercised by Congress, as expressed in a piece of legislation—exceed the powers granted to it by the Constitution is a question which Congress itself is powerless to decide. The Constitution itself does not so declare; on the other hand it does not provide that Congress shall be the final judge of its own powers. The principle regulative of the exercise by Congress of powers delegated to it is laid down by the Supreme Court:59 “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”