danger. The Government of the United States is one of delegated and limited powers. It derives its existence and authority altogether from the Constitution and neither of its branches can exercise any of the powers of government beyond those specified and granted." 22

Unfortunately, however, the Supreme Court has not always been as careful as it might have been in repudiating the argument based upon the inherent sovereign rights of the National Government. Although it has never explicitly justified the exercise of a power by the Federal Government upon this ground, it has, obiter, several times used language suggesting its validity.23

22 Ex parte Merryman (Campbell's Reports, 246).

23 In the Legal Tender Cases (12 Wall. 457; 20 L. ed. 287), Justice Bradley says: "The United States is not only a Government but it is a National Government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all of which are forbidden to the state governments. . . . Such being the character of the General Government it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions. If this proposition be not true, it certainly is true that the Government of the United States has express authority in the clause last quoted, to make all such laws (usually regarded as inherent and implied) as may be necessary and proper for carrying on the government as constituted and vindicating its authority and existence."

In United States v. Jones (109 U. S. 513; 3 Sup. Ct. Rep. 346; 27 L. ed. 1015) the power of eminent domain was declared to be possessed by the United States as an "incident of sovereignty," and because it "belongs to every independent government."

In Church of Jesus Christ v. United States (136 U. S. 1; 10 Sup. Ct. Rep. 792; 34 L. ed. 478) "the power to make acquisitions of territory by conquest, by treaty, and by cession" was declared to be possessed by the United States, not from any express or otherwise implied power, but because these are an incident of national sovereignty."

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In Fong Yue Ting v. United States (149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905) "the right to exclude or expel all aliens, or any class of aliens, absolutely or upon certain conditions in war or in peace," was declared to belong to the United States as "an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare."

These dicta which are cited in the footnote, if taken by themselves might seem to indicate the acceptance by the Supreme Court of the doctrine of inherent sovereign powers of the General Government. An examination of the cases in which they were delivered discloses, however, that in each instance they were obiter, the power that was sustained being actually justified as a resulting or implied power. In the recent Insular Cases the doctrine was strongly urged upon the court but received no countenance; and in Kansas v. Colorado, a case decided in 1907, in which the doctrine was set up in a somewhat disguised form, the court was emphatic in its repudiation.25

24 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.

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25 After referring to the absence of power in the Federal Government to control private property in the States, Justice Brewer, who rendered the opinion of the court, said: 'Appreciating the force of this, counsel for the government relies upon the doctrine of sovereign and inherent power;' adding, 'I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference.' His argument runs substantially along this line: All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the Nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The argument of counsel ignores the principal factor in this article, to wit, the people.' Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The pre

§ 39. Express Limitations Upon the Federal Government.

The express limitations upon the powers of the Federal Government are in part limitations upon the manner of exercise of powers expressly given, as, for example, that direct taxes shall be apportioned among the several States according to their respective populations, that naturalization, bankruptcy, and tariff laws shall be uniform throughout the United States, etc.; and in part absolute prohibitions upon the exercise, in any manner, of the powers specified. These absolute prohibitions are to be found, in the main, in Section 9 of Article I and in the first eight Amendments.

From the very first it has been construed by the Supreme Court that the prohibitions contained in these Amendments apply only to the United States. This was first authoritatively declared by Marshall in the case of Barron v. Baltimore26 decided in 1833. amble of the Constitution declares who framed it, we, the people of the United States,' not the people of one State, but the people of all the States; and Article 10 reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all the powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of the things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article 10 is not to be shorn of its meaning by any narrow or technical construction but is to be considered fairly and liberally so as to give effect to its scope and meaning." Mr. C. J. Tiedeman in his work The Unwritten Constitution of the United States raises the point whether a correct interpretation of the Tenth Amendment would not give to the National Government those powers the exercise of which is prohibited to the States, but which are neither prohibited nor delegated to the General Government. His claim is that the General Government should be construed to have those powers, for, he argues, the powers must rest somewhere; they are expressly prohibited to the States, and, therefore, they must be possessed by the Nation. The advantage which he conceives would follow from an acceptance of this principle would be the avoidance in many cases of resorting to an undue straining of the doctrine of implied powers in order to enable the General Government to exercise an authority essential to its welfare but not expressly delegated to it.

26 7 Pet. 243; 8 L. ed. 672.

In his opinion rendered in that case, Marshall said: "The plaintiff . insists that the [Fifth] Amendment being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a State as well as that of the United States. The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a Constitution for itself, and in that Constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed next a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers to be conferred on the Government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, and not of distinct governments framed by different persons and for different purposes."

The correctness of this decision has never been questioned either by the federal or the state courts. However, as we shall notice in a later chapter, the argument has been made, but not accepted as valid by the Supreme Court, that the clause of the Fourteenth Amendment which provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," should be so construed as to render the provisions of the first eight Amendments operative upon the States.

In regard to these first eight Amendments it has sometimes been said that it was only an excess of caution that required their incorporation in the federal Constitution. Inasmuch as the United States was to have only the powers expressly or impliedly given it, it has been asserted that the General Government would have been, in the absence of such express limitations, without

27.

the authority to exercise the powers that these Amendments enumerate. A consideration, however, of the construction which several of the provisions of these Amendments have received, especially during recent years, will, it is believed, make it evident that these express limitations upon the Federal Government have been of considerable importance.28

840. Implied Limitations Upon the Federal Government.

The implied limitations upon the Federal Government are: first, those implied in the express limitations; and second, those which arise from the general nature of the American federal State. The Constitution looks to a preservation of the several States in the administrative autonomy that is allotted to them, and from this is deduced the principle that the Federal Government may not, unless it be absolutely necessary to its own efficiency, interfere with the free operation of state governments either by way of imposing upon them the performance of duties, or of unduly restraining their freedom of action by way of taxation or otherwise.

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27 Indeed, in the eyes of some, of Hamilton at least, there were affirmative reasons why these limitations should not be expressly stated. In The Federalist, No. 84, after showing that Bills of Rights were stipulations between Kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince," whereas in constitutions "the people in reality surrendered nothing," Hamilton proceeds: "I go further and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? . . . Men disposed to usurp might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given and that the provision against the liberty of the press afforded a clear implica tion, that a right to prescribe proper regulations concerning it, was intended to be vested in the National Government."

28 See chapter XLV.

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