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ADDRESS.

that the Goverment constructed by it, shall exercise no power not delegated in it-the principle of implied or resulting powers just suggested, was expressly recognized by the de claration that, in addition to the enumerated powers, Congress should possess all other pow ers, "necessary and proper," for carrying them into full and complete effect. Without that prudent recognition, the existence of construc tive powers would have been unquestionable, and their scope would have been as compre hensive, and the test for defining it as clear, as now. Implied power is only the right to employ appropriate and unprohibited means for fulfilling the ends of the express powers. Is the thing done or proposed under the claim of constructive authority, a mean to an end of any express power-is it expressly forbidden by the constitution, or is it inconsistent with its genius or any of its principles?

WHEN the Federal Convention of 1787 de- and philosophy that, when power is granted termined to substitute a constitution for a to an agent to do a designated thing, or a trust league, a National Government operating suis confided to perform a defined duty, all the premely on the people of all the States, instead accustomed or fitting means of doing the thing, of a confederation among the States as polit- or executing the purpose of the trust, and ical sovereigns-the character and scope of the which the constituent, before delegating the powers which the sovereignty of the Union power or imposing the trust, might have em should possess, presented a question of the ployed for the same object, are also delegated pr gravest consideration. The object of the con- to the representative organ, excepting only so templated Government was the union of the far as the character of authority shall have people and the States; and the end of such qualified or restricted them. But lest this ar union was undivided nationality abroad, and iomatic truth might be sometimes questioned, peace, justice, and security, as to all interna- in its application to the constitution of the Unitional interests and rights at home. Conse-ted States-which recites the self-evident fact, quently, as experience had demonstrated the necessity of a supreme popular Government, constructed by and responsible to the people of all the States, for effecting the desired ends, wisdom and patriotism concurred in making the authority of that Government co-extensive with all international concerns. History, Philosophy, and the representative principle embalmed in the Declaration of Independence, all united in defining this as the true conservative boundary between the Governments of the several States, and the comprehensive Government of the United States. Common interests should be protected by common counsels. No one of the States should possess any arbitrary control over affairs involving the liberty, peace, or property of the people of all the States. Whatever affects the rights of the people of all the States, or of more States than one, ought to be under the guardian care of their common Government. As to all interhational concerns abroad, we have, and should have, but one Government, and but one Na tion-that of "the United States." And as to all domestic concerns, in which the people of the Union have a common interest, there If there be no express grant of power to should be, and is, but one Government-that Congress to enact a statute for a specific purof the Union. Such powers as were essential pose, the question of its constitutionality will to that Government, were taken by the people, depend, 1st, on whether there be any express from their State Governments, and delegated power, the end of which may be accomplished to the National Government, which, being thus or facilitated by such legislative provisionderivative, possesses no power except what and 2d, on whether the prescribed measure be has been given to it by the provisions of the interdicted by the constitution. The constitu constitution. And to avoid, as far as possible, tional declaration that Congress shall possess collisions between the States and General Gov- all power "necessary and proper" for carrying ernment, as to their respective jurisdictions, into effect the express powers specifically del the national constitution classifies and enu- egated, is not restrictive of the universal prinmerates the general powers deemed essential to ciple, that a grant of express power to do a enable the latter to fulfil the great trust of thing carries with it authority to employ any maintaining harmony, peace, and justice, unprohibited mean for executing the grant in throughout the limits of the Union. But the a manner consistent with the object for which most eligible means of effecting the ends of the power was delegated. "Necessary," with the enumerated powers being various, and of-out qualification, does not mean that which is ten changeful in their adaptations, they neither indispensable. As it is not a technical term, were, nor could have been specified. It is an it must be construed according to the popular undeniable principle of both jurisprudence use and import of it. Its ordinary adjective

This is the true and only constitutional touchstone of implied power. It is sufficiently obvious, and can but seldom be of difficult or doubtful application, by the candid and intelligent mind, enquiring only for the truth.

acceptation is synonimous with a mean effect-constitutional. So, for fulfilling the end of the uating or tending to effectuate an end. When express power, "to establish post offices and a certain end is to be accomplished by means, post roads," it might be more expedient and some effectual or appropriate mean to the end economical to have the mails carried at the exis, of course, necessary. For effecting most pense of the General Government, by its offiends of the express powers in the constitution, cial agents, for compensation fixed by law.the efficient means are various and multiform; But this would not show that the more expenno one of which, more than another, can be sive and irregular mode of having it transdeemed indispensable. Which should be pre-ported by contract, as a job, is unconstituferred, as best adapted to the end, is a ques- tional.

tion concerning which equally enlightened The same distinction between expediency minds may differ; and, consequently, sound and power applies, with equal clearness and discretion will make the selection. Those who force, to the class of resulting, or implied do not concur in that choice, have no right to powers. The express power to regulate forsay that the act is unconstitutional, merely eign commerce, carries with it the incidental because, in their opinion, or according to their power to improve our bays and harbors, and taste, some other mean would have been more appropriate or expedient. The degree of relative adaptation is a matter of policy, not of power. Any mean that relates to the end of any one of the enumerated powers, is as constitutional as any other mean to the same end, if it be not prohibited. Of all such means no one can be deemed more necessary than another. The constitutionality or unconstitutionality of any one of them, cannot depend upon the uncertain and controverted opinion of its optimism, which involves the question of expedienoy, not of power. But, among all the various unprohibited means which relate to the end of an express power, the majority have a right to choose that which it deems best adapted to the fulfilment of the purpose of delegating that power.. The power to do a thing, does not depend on the policy or expediency of the thing. A particular species of legislation by Congress, might operate very beneficently on the general welfare. Yet, un- If there be no implied power to do anything less there is either an express power to do it in the execution of an express power, without or it has relation to some such power and will doing which the object of the express power tend to effectuate the end of it, the constitu- could not be fulfilled, then there can be no such tion would not sanction it. For example, it thing as implied power; for if any of the varimight be useful to have one uniform national ous means for effecting the same end be not law regulating the obligation of contracts, or constitutional, because the end could be accomthe transfer of title to land by inheritance, con- plished in some other mode, no one of the veyance or devise. But all these matters are adaptable means can be constitutional, belocal: and, as none of them, as means, relate to cause no one of them can be indispensable, the end of any of the enumerated powers giv- while there is another which can serve the en to Congress, every such act would be uncon- same purpose. The expedients for executing stitutional and void. So, on the other hand, the trust of an express power, may be as varithe impolicy of an act does not prove that it is ous as the letters of the alphabet. If the plan nconstitutional. A subtreasury may not be of A be not constitutional, merely because B's the most suitable or politic mode of executing will effect the same object, and therefore A's is the express power of taking care of and trans- not indispensable; then, for the same reason, mitting the national treasure; it may, therefore, neither B's nor that of any other, can be conbe inexpedient or impolitic. Nevertheless, it stitutional. And, consequently, there could ay be clearly constitutional, because, as a be no incidental power in any case except the mean having an obvious relation to the end of non-existent and unimaginable one, in which an express power, it may execute the trust, tho' there is but one mean for effecting the end of not perhaps in the best possible manner. This an express grant of power. Adaptation of unis equally true, even as to the express powers. prohibited means to ends of express powers, Congress might happen to declare an unjust is the true and only test for determining wheth or impolitic war. The express power to de- er an act not expressly authorized is necessary clare war is limited only by the discretion of for effectuating one of the enumerated powers. Congress. War is one mode of effecting na- The comparative degree of adaptation affects ional security and justice, other modes may the policy only. And this is not only happen to be more expedient for attaining the self-evident, but has been illustrated by object,-in such a case war would be in the history of Congressional legislation ever expedient. But still it would be undoubtedly since the inauguration of the Federal Consti

erect light-houses, to give facility and securiNo such improvement is indispensably necesty to commercial navigation and intercourse. sary; but every one that has ever been made may be useful, has relation to an express power, and tends to subserve its great objects. There are various modes which might all tend to the same result,--each of them is within the constitutional discretion of Congress, and each, therefore, though it may not be the best, is constitutional. A breakwater, costing millions of dollars, may turn out to be comparatively useless for the protective purpose for which it shall have been constructed-and might not be expedient therefore-but, as it relates to the power to regulate commerce, and make it is unquestionable, even though it was was made to promote it, the implied power to neither indispensably necessary, nor even expedient.

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tution, and confirmed by universal acquies- and parties, but of the same men and the cence and authority. same parties, at different times and on differBefore there can be implied power to do a ent occasions. This is a deplorable truth; and thing, it must not only be in the constitution- persistence in a procedure so fluctuating and al sense “necessary," but also "proper;" which liable to abuse, will afford an augury of dissomeans, not that it shall be expedient, but ap-lution and anarchy, or of despotism and cer propriate merely, or in other words, suitable to tralism, at no very distant day. It would, the end, and not repugnant to the principles of sooner or later, inevitably unhinge the constithe constitution; for that which is prohibited tution, and make it the sport of ambition, leby the letter, or is incompatible with the spirit cal or national. The true test, honestly and of the constitution, cannot be "proper." And faithfully applied, would restore the constituthis, too, is well settled by history and author- tion to its original purity, simplicity, harity, popular, legislative, and judicial. lessness, and benificence. And then we should The test thus defined for determining the ex- have no more nullifying States, or mis-styled istence and limits of implied power, cannot be "States rights" parties,-no more "strict corobjected to as either too vague or too latitudi- struction," or "latitudinary construction,”—Lo nary. One more certain or properly restricted more vibrations from centralization to dissolu could not be substituted. He who discards it, tion, from a National Government of the peo is at sea without compass or rudder. He can ple, to a confederation of State sovereignties have no criterion of construction, but an arbi- claiming constitutional supremacy. But har trary and varying discretion governed only by mony and security would pervade a union ho his passions, or his changing opinions of ex- mogenious and steadfast in fundamental poi pediency; and will sometimes assume powers tics. The self-styled "strict constitutionist." that do not exist, and at other times repudiate and the falsely styled "States-rights" politithose that do. In his hands the constitution cians, mould the constitution to suit the occawill be a Protean puppet of party or of times; sion and their immediate purpose. Sometimes and that which, until authoritatively changed, excessive power is conceded to a patronizing must be, under all circumstances, one and the party President, and, at other times, almost all same, will lose its uniformity and identity, power is denied to an incumbent of a different and change with policy, interest, or the ther-cast-and sometimes is denied to Congress mometer of popular feeling. The history of any implied power which is not indispens the Bank of the United States affords an appo- bly necessary, and at other times, power is site illustration. Men and parties have often claimed to do whatever is desired, or deemed changed concerning the constitutionality of beneficial or expedient. "Strict construction such a Fiscal Institution. Even Mr. Madison is itself vexatiously indeterminate and flexible and Mr. Clay denounced it as unconstitutional It has no settled land mark; nor is it governed in 1811, and advocated it as constitutional in by any fixed principle of uniform and certain 1816. Each of them had applied to it the va- application. If its principle be, that no powrying and delusive test of expediency. They er belongs to the General Government, excep thought it impolitic in 1811, politic in 1816. what has been expressly granted, it is radiesIt would have been perfectly consistent, there- ly absurd, and is falsified by the express defore, for each of them to have opposed the char-claration of the constitution itself, and by un ter at the first of these periods, and to have varied legislative action and judicial sanction. been for it at the last. But, if it had been un- ever since the adoption of it. If its principle constitutional at any time, it could never have be, that there is no implied power which is ret become constitutional without a change of the indispensably necessary for fulfilling the ob constitution. Until some such change of it, all its powers, express and implied, must be precisely the same at all times and under all circumstances. Time and circumstance may, and often do, change the policy of exercising certain powers, or of doing it in the same mode; but they can never give power not granted by the constitution, nor either abrogate or change that which was once conferred by it. The test we have defined as the true one will preserve the consistency and uniformity of the constitution-any other will make it clay in the hands of the Potter.

The stability and efficacy of the Constitution require that it should be uniform in its character and operation; and, consequently, it should be always construed by a fixed test as certain as the magnet. For want of such a test, or because it was neither carefully nor uniformly applied, the constitution has been made to assume different and inconsistent characters at different times, and under the controlling influence, not only of different men

ject of some express power, it is equally absurd, has been exploded by the same authori ties, and, if let alone, would result in suicide. And, if its principle be, that there is no implied power, except that which operates as a mean to the end of some express power, then the strict constructionist concurs in theory with the most orthodox class of American jurists and statesmen. But "plain," "clear," "obvious” — all have degrees; and what may he quite obvi ous to one mind, may be altogether invisible to another. This, therefore, is too vague and va riable for constitutional certainty—and needs the polarity of some principle more fixed and infallible,--and that is the one we have al ready defined as the only true and safe guide: and which has hitherto been recognized by all the public authorities of the Union.

There is, therefore, nothing consistent. of maintainable, in the distinctive appellative, "strict constructionist." And there is just as little in that of "States-Rights" party or doc trine which, not only urges the same vagary

exercise a right to overrule, or resist, by force, the acts of the General Government, ratified and confirmed by the people of the United States through their judiciary. The right to decide as to its own constitutional power is an inherent and indispensable attribute of all national sovereignty.

of "strict construction," but goes to the destructive extremity of claiming for each State of the Union political supremacy, and of denying to the authorities and laws of that Union ultimate and practical sovereignty. This fundamental heresy, which had been considered as long dead or banished, was revived under the auspices of John C. Calhoun, during the ad- The provisions of the Constitution of the ministration of President Jackson, whose im- United States-and its style--and its declaramortal proclamation in 1832, denounced it as tions-and its objects-and its history, and treason. Its only basis is the monstrous as- invariable exposition, and operation, ever sumption that the Federal Constitution was since the adoption of it prove, beyond contromade by the States in their political capacities, versy or doubt, that it derived its existence and not by the people in the same capacities in and authority from the people who made or which they made their respective State Con- became parties to it, just as they made or bestitutions-that, though it declares itself to be came parties to their several State constituthe supreme law of the land, and although the tions-that, in purpose and effect, it constitupeople, who made it, established by it a tribu- ted a supreme National Government for all the nal for deciding, in the last resort, on its con- people, and above all the States-that it is a struction and application, yet, nevertheless, it fundamental law, and like all organic law, is a mere league, like the superceded articles cannot be rightfully resisted or overruled by of Confederation, between sovereign States, any party to it as long as it shall continue to each of which has a constitutional right to dis-exist; and that, consequently, it has, and must sent from the national authorities, to decide have, the political right and power to maintain for itself, and to "nullify" within its borders, its own existence and enforce its own authority. any act which it may choose to consider un- A single State cannot be practically a soverconstitutional. The pivot of this nullifying eign for local purposes, if any portion of its platform is the radical error that each of the citizens have the consitutional right to overrule States in the Union still retains, in the ulti-or resist its organized power or judicial aumate sense, under the Federal Constitution, thority. Nor, for the same reason, and fully uncontrollable sovereignty-or, in other words, in the same sense, can the United States be that the constitution is a mere confederation, practically sovereign for national purposes, and is not an organic law intended to operate, and with power, to enforce its operation on every citizen of every State, as a national and supreme law of all and for all-"any provision When the constitution was under considerain any State law, or State Constitution to the tion for adoption, a minority advocated a contrary, notwithstanding." If this be the league or confederation-the majority, with true theory of the Constitution, each State WASHINGTON at their head, feeling the being, on that hypothesis, an independent sov- absolute necessity of a supreme National Govereignty, each must, as an essential element of ernment with powers co-extensive with the inall such sovereignty, possess the acknowledged terests and purposes of Union, prevailed and right to decide for itself as to its own power, established such a Government. Mr. Jefferand, consequently, as to the validity of all son was one of that minority, and, for years acts passed by Congress, and also as to the after the ratification of the constitution by the correctness and effects of all the decisions people of the States, endeavored to construe it rendered by the judicial organ of the Union, as a compact of confederation among sovthe Supreme Court of the United States; and, ereigns. Being looked to as their leader, by as a necessary consequence, each State would the party opposed to President John Adams, also possess the constitutional right to secede, and denouncing, as unconstitutional the alien whenever it might choose to abandon the and sedition laws just then enacted by ConUnion. But, if the people of each State, in gress, Mr. Jefferson wrote and sent to John their own original right, are parties to the Breckinridge the resolutions of "98," which Constitution of the United States, and by it were adopted by the Kentucky Legislature. organized a National Government, supreme The first of these resolutions, after characteriover all for all national purposes, then it is zing our charter of Union as a "compact under equally true and undeniable that the compre- the style and title of a Constitution of the hensive General Government thus constituted, United States," proceeds to declare "that, to must be the highest sovereign, and possess, as this compact each State, acceded as a State, an obvious and inevitable consequence, the and as an integral party; its co-States forming, authority to decide as to its own sovereignty, as to itself, the other party; that the Governand the political power to uphold that sov- ment created by this compact was not made ereignty, and enforce its own acts and its own the exclusive or final judge of the extent of decisions; and, consequently, no citizen, nor the powers delegated to itself; since that any class or number of citizens, whether of one would have made its discretion, and not the State or of different States, can constitutionally constitution, the measure of its powers; but

unless the General Government has the right to determine all questions involving its own sovereignty, and the power to uphold it.

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that, as in all other cases of compact between parties having no common judge, each party have an equal right to judge for itself, as well of infractions as of the mode and measures of redress."

There can be no

to be a palpable error-a total misconception of the provisions, the objects, and the supremacy of that constitution. But the same false principle is the pivot and only support of the exploded doctrine of nullification; and Mr. And by the second of these resolutions it Calhoun so understood; his platform was that was resolved-"That the constitution of the of the resolutions of '98, and he relied on them as his authority. The resolutions of '99 reUnited States having delegated to Congress a power to punish treason, counterfeiting the se- affirm those of '98, and the author of both curities and current coin of the United States, points out in the latter the remedy, for the piracies and felonies committed on the high right asserted in the first, of a single State to seas, and offences against the laws of nations, judge for itself, and prevent, within its limits, and no other crimes whatever, and it being truc, the enforcement of an act of Congress which a as a general principle, and one of the amend-majority of its citizens should deem authorized ments to the constitution having also declared by the constitution. And in announcing that "that the powers not delegated to the U. States remedy, "NULLIFICATION" is, for the first time. by the constitution, nor prohibited by it to the sed. From this source, Mr. Calhoun borrowed States, are reserved to the States respectively, the principle and the term. or the people;" therefore, also, the same act of other rational construction of the resolutions of Congress passed on the 14th of July, 1798, '98, than that given to them by Mr. Calhoun and entitled "an act in addition to the act en- and by their author. If their principle be true, titled an act for the punishment of certain a right to nullify, as asserted in the resolutions crimes against the United States;" as also the of '99, must be admitted to be undeniableact passed by them on the 27th of June, 1798, and that it is a constitutional right, according entitled "an act to punish frauds committed on to that principle, could not be doubted. If the Bank of the United States;" and all other that principle be true, there is no General Government or national institution with auof their acts which assume to create, define, or punish crimes other than those enumerated in thority to govern-there is no national constithe Constitution, are altogether void, and of tution; for a constitution is a supreme law, and no force, and, that the power to create, define, a law cannot be supreme, which the enacting and punish other crimes, is reserved, and of authority has neither right nor power to enforce right appertains, solely and exclusively, to the against all popular opposition. The suggesrespective States, each within its own terri- tion in the first of the resolutions, of '98, that the exclusive or final right in the General tory." Government to judge of its own powers and These resolutions of '98 were transmitted to the constitutionality of its own acts, would other States for their concurrence; but most of make its discretion, and not the constitution, those State repudiated them as radically wrong. the measure of its authority, is, with all proper Mr. Jefferson, in that dilemna, wrote the reso- respect, worse than puerile-it is suicidal. lutions of '99, endorsing those of '98, and pre- There can be no supremacy of law or governscribing a specific mode of enforcing, by a mal-ment without such a right. In a contest becontent State, its imputed sovereignty, in these tween a State and any portion of its own citiwords: "The principle and construction con- zens as to the constitutionality of any of its tended for by sundry of the State Legislatures, legislative acts, has not the State, through its that the General Government is the exclusive judiciary, the undoubted, exclusive, and final No government Judge of the extent of the powers delegated political right to decide? to it, stop nothing short of despotism, since could exist without that right-it is the ultithe discretion of those who administer the gov-mate object of all constitutional government. ernment, and not the constitution, would be the measure of their powers-that the several States who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy."

The constitution declares that it shall be the supreme law over all the States and all the people; and it organizes a national court for all the States and all the people, as the final arbiter of all contests concerning that constitution, and vests it with final and conclusive jurisdiction of all such questions. In adopting The principle of the first of the resolutions the constitution, the people of all the States of '98 is, that the States of the Union retain agreed that their own national supreme court all their original sovereignty-that the consti-appointed by their agents, acting in their name and for them, and responsible to themtution of the United States is only a compact or league between them as sovereigns-that should, in all cases involving the powers of the General Government, constitute the final Withthere is no common judge over them-and that, consequently, each State has a constitu- arbiter of the constitution and the law. out some such fundamental provision for adtional right to judge for itself, in the last resort, of the validity of all the acts of the Gen- justing all collisions of power or questions of constitutional right, national uniformity, and eral Government. This must now be admitted!

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