power] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof." Furthermore it will be noticed that in the Tenth Amendment, above quoted, the powers reserved to the States or to the people are not those expressly delegated to the United States, but simply those not delegated. This is significant in view of the fact that in the corresponding section in the Articles of Confederation the word "expressly" is carefully inserted.3 § 31. Federal Powers to be Liberally Construed. The Constitution is in terms and general character a grant of powers a grant from the people of the several States to the National Government, and, strictly speaking, as in all grants of power, the authority that may be exercised thereunder is to be limited to that specifically granted or impliedly given. But whereas, in general, grants of authority are strictly construed as against the grantee and in favor of the reserved rights of the grantor, in the case of the federal Constitution this principle has, it is seen, not been applied. The justification for this has been deduced from the general nature of the Constitution as an instrument of government, and from the character of the end which was sought to be obtained by its establishment. The Federal Governments exists not for the benefit of those who exercise its powers, but to subserve the national interests, political, industrial, and social, of the people who framed and adopted it. While, therefore, it is, in essential character, a grant of powers, and is to be construed as such, its terms are to be interpreted in the light of the fact that the people in adopting it desired the establishment and maintenance of an effective National Government, and therefore one endowed with powers commensurate with that end.1 - 3 Article II. "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled." 4" In construing a grant or surrender of powers by the people to a monarch, for his own benefit or use, it is not only natural, but just, to presume, as in In the case of Gibbons v. Ogden Marshall took pains to assert that there is no good reason for holding that either the express or the implied powers of the National Government are to be strictly construed. His language is as follows: "This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means of carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not therefore think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construcall other cases of grants, that the parties had not in view any large sense of the terms, because the objects were a derogation presumably from their rights and interests. But in construing a constitution of government, framed by the people for their own benefit and protection, for the preservation of their rights, and property, and liberty; where the delegated powers are not, and cannot be used for the benefit of their rulers, who are but their temporary servants and agents; but are intended solely for the benefit of the people, no such presumption of an intention to use the words in the most restricted sense necessarily arises. The powers given by the people to the General Government are not necessarily carved out of the powers already confided to the state governments. They may be such as they originally reserved to themselves. And, if they are not, the authority of the people in their sovereign capacity, to withdraw power from their state functionaries, and to confide it to the functionaries of the General Government, cannot be doubted or denied. If they withdraw the power from the state functionaries, it must be presumed to be, because they deem it more useful for themselves, more for the common benefit and common protection, than to leave it where it has been hitherto deposited. . . . The state governments have no right to assume that the power is more safe or more useful with them, than with the General Government; that they have a higher capacity and a more honest desire to preserve the rights and liberties of the people than the General Government." Story Commentaries, §§ 413-416. 59 Wh. 1; 6 L. ed. 23. tion which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government and render it unequal to the objects for which it was declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred." § 32. Strict Construction a Corollary of the States' Rights Doctrine. Without in any way questioning the validity of the rule of construction stated in the preceding paragraphs, it is to be ob served that its propriety is absolutely dependent upon the prior assumption that the Federal Government exists as the agent of the people, and not, according to the States' Rights theory, as the agent of the States. Had the theory which conceives the United States to be a confederacy of sovereign States, and its government as the agent of these creating component units, been accepted, it would have logically followed that a doctrine of strict construction of federal powers would have been appropriate, for then these powers would have been in direct derogation of the rights reserved by the States that granted them. Strict construction thus is a logical corollary of the States' Rights theory. In pursuance of the foregoing principles the Supreme Court of the United States has, from the very beginning, declared that the powers thus impliedly granted the General Government as necessary and proper for the exercise of the powers expressly given, are to be liberally construed. The words "necessary and proper," it was early held, were not to be interpreted as endowing the General Government simply with those powers indispensably necessary for the exercise of its express powers, but as equipping it with any and every authority the exercise of which may in any way assist the Federal Government in effecting any of the purposes the attainment of which is within its constitutional sphere. Thus in the case of the United States v. Fisher," decided in 1804, Marshall declared: "It would be incorrect and would produce endless difficulties if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary because the end might be obtained by 62 Cr. 358; 2 L. ed. 304. other means. Congress might possess the choice of means which are in fact conducive to the exercise of a power granted by the Constitution." § 34. McCulloch v. Maryland. The classic statement, however, of the scope of the "implied " powers of Congress is of course that made by Marshall in the opinion which he rendered in McCulloch v. Maryland. In that great case, the Chief Justice says: "It may with great reason be contended, that a government, entrusted with such ample powers [as is the United States] on the due execution of which the happiness and prosperity of the Nation so vitally depends, must be entrusted with ample means for their execution. The power being given, it is the interest of the Nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to stay and embarrass its execution by withholding the most appropriate means." The determination of what are appropriate means must, Marshall goes on to declare, belong to the government which is to employ them. "The government which has a right to do an act, and has imposed on it the duty of performing that act," he says, must, according to the dictates of reason, be allowed to select the means." To the argument that a selected means must be an indispensable as well as a proper one, Marshall replies: "Is it true that this is the sense in which the word 'necessary' is always used? Does it always import an absolute physical necessity, so strong that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient or useful, or essential to another." Applying this interpretation of the word to its use in the Constitution the opinion declares: 74 Wh. 316; 4 L. ed. 579. |