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Commentaries on the Constitution of the United States (1833)

by Joseph L. Story

BOOK 3, CHAPTER 5

Rules of Interpretation

§ 397. IN our future commentaries upon the constitution we shall treat it, then, as it is denominated in the instrument itself, as a CONSTITUTION of government, ordained and established by the people of the United States for themselves and their posterity.1 They have declared it the supreme law of the land. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of certain powers, and reserved all others to the states or to the people. It is a popular government. Those who administer it are responsible to the people. It is as popular, and Just as much emanating from the people, as the state governments. It is created for one purpose; the state governments for another. It may be altered, and amended, and abolished at the will of the people. In short, it was made by the people, made for the people, and is responsible to the people.2

§ 398. In this view of the matter, let us now proceed to consider the rules, by which it ought to be interpreted; for, if these rules are correctly laid down, it will save us from many embarrassments in examining and defining its powers. Much of the difficulty, which has arisen in all the public discussions on this subject, has had its origin in the want of some uniform rules of interpretation, expressly or tacitly agreed on by the disputants. Very different doctrines on this point have been adopted by different commentators; and not unfrequently very different language held by the same parties at different periods. In short, the rules of interpretation have often been shifted to suit the emergency; and the passions and prejudices of the day, or the favour and odium of a particular measure, have not unfrequently furnished a mode of argument, which would, on the one hand, leave the constitution crippled and inanimate, or, on other hand, give it an extent and elasticity, subversive of all rational boundaries.

§ 399. Let us, then, endeavour to ascertain, what are the true rules of interpretation applicable to the constitution; so that we may have some fixed standard, by which to measure its powers, and limit its prohibitions, and guard its obligations, and enforce its securities of our rights and liberties.

§ 400. I. The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties. Mr. Justice Blackstone has remarked, that the intention of a law is to be gathered from the words, the context, the subject matter, the effects and consequence, or the reason and spirit of the law.3 He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes, which led to its enactment, are often the best exponents of the words, and limit their application.4

§ 401. Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only, when there is some ambiguity or doubt arising from other sources, that interpretation has its proper office. There may be obscurity, as to the meaning, from the doubtful character of the words used, from other clauses in the same instrument, or from an incongruity or repugnancy between the words, and the apparent intention derived from the whole structure of the instrument, or its avowed object. In all such cases interpretation becomes indispensable.

§ 402. Rutherforth5 has divided interpretation into three kinds, literal, rational, and mixed. The first is, where we collect the intention of the party from his words only, as they lie before us. The second is, where his words do not express that intention perfectly, but exceed it, or fall short of it, and we are to collect it from probable or rational conjectures only. The third is, where the words, though they do express the intention, when they are rightly understood, are themselves of doubtful meaning, and we are bound to have recourse to the like conjectures to find out in what sense they are used. In literal interpretation the rule observed is, to follow that sense in respect both of the words, and of the construction of them, which is agreeable to common use, without attending to etymological fancies or grammatical refinements. In mixed interpretation, which supposes the words to admit of two or more senses, each of which is agreeable to common usage, we are obliged to collect the sense, partly from the words, and partly from conjecture of the intention. The rules then adopted are, to construe the words according to the subject matter, in such a sense as to produce a reasonable effect, and with reference to the circumstances of the particular transaction. Light may also be obtained in such cases from contemporary facts, or expositions, from antecedent mischiefs, from known habits, manners, and institutions, and from other sources almost innumerable, which may justly affect the judgment in drawing a fit conclusion in the particular case.

§ 403. Interpretation also may be strict or large; though we do not always mean the same thing, when we speak of a strict or large interpretation. When common usage has given two senses to the same word, one of which is more confined, or includes fewer particulars than the other, the former is called its strict sense, and the latter, which is more comprehensive or includes more particulars, is called its large sense. If we find such a word in a law, and we take it in its more confined sense, we are said to interpret it strictly. If we take it in its more comprehensive sense, we are said to interpret it largely. But whether we do the one or the other, we still keep to the letter of the law. But strict and large interpretation are frequently opposed to each other in a different sense. The words of a law may sometimes express the meaning of the legislator imperfectly. They may, in their common acceptation, include either more or less than his intention. And as, on the one hand, we call it a strict interpretation, where we contend, that the letter is to be adhered to precisely; so, on the other hand, we call it a large interpretation, where we contend, that the words ought to be taken in such a sense, as common usage will not fully justify; or that the meaning of the legislator is something different from what his words in any usage would import. In this sense a large interpretation is synonymous with what has before been called a rational interpretation. And a strict interpretation, in this sense, includes both literal and mixed interpretation; and may, as contradistinguished from the former, be called a close, in opposition to a free or liberal interpretation.6

§ 404. These elementary explanations furnish little room for controversy; but they may nevertheless aid us in making a closer practical application, when we arrive at more definite rules.

§ 405. II. In construing the constitution of the United States, we are, in the first instance, to consider, what are its nature and objects, its scope and design, as apparent from the structure of the instrument, viewed as a whole, and also viewed in its component parts. Where its words are plain, clear, and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil. Where the words admit of two senses, each of which is conformable to common usage, that sense is to be adopted, which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and design of the instrument. Where the words are unambiguous, but the provision may cover more or less ground according to the intention, which is yet subject to conjecture; or where it may include in its general terms more or less, than might seem dictated by the general design, as that may be gathered from other parts of the instrument, there is much more room for controversy; and the argument from inconvenience will probably have different influences upon different minds. Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only upon the most persuasive reasons. In examining the constitution, the antecedent situation of the country, and its institutions, the existence and operations of the state governments, the powers and operations of the confederation, in short all the circumstances, which had a tendency to produce, or to obstruct its formation and ratification, deserve a careful attention. Much, also, may be gathered from contemporary history, and contemporary interpretation, to aid us in just conclusions.7

§ 406. It is obvious, however, that contemporary interpretation must be resorted to with much qualification and reserve. In the first place, the private interpretation of any particular man, or body of men, must manifestly be open to much observation. The constitution was adopted by the people of the United States; and it was submitted to the whole upon a just survey of its provisions, as they stood in the text itself. In different states and in different conventions, different and very opposite objections are known to have prevailed; and might well be presumed to prevail. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favour. And there can be no certainty, either that the different state conventions in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed with a majority, much less with the whole of the supporters of it. In the interpretation of a state statute, no man is insensible of the extreme danger of resorting to the opinions of those, who framed it, or those who passed it. Its terms may have differently impressed different minds. Some may have implied limitations and objects, which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition, which most favoured their present views. Others may have seen lurking beneath its text, what commended it to their judgment against even present interests. Some may have interpreted its language strictly and closely; others from a different habit of thinking may have given it a large and liberal meaning. It is not to be presumed, that, even in the convention, which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation. Every member necessarily judged for himself; and the judgment of no one could, or ought to be, conclusive upon that of others. The known diversity of construction of different parts of it, as well of the mass of its powers, in the different state conventions; the total silence upon many objections, which have since been started; and the strong reliance upon others, which have since been universally abandoned, add weight to these suggestions. Nothing but the text itself was adopted by the people. And it would certainly be a most extravagant doctrine to give to any commentary then made, and, a fortiori, to any commentary since made under a very different posture of feeling and opinion, an authority, which should operate an absolute limit upon the text, or should supersede its natural and just interpretation.

§ 407. Contemporary construction is properly resorted to, to illustrate, and confirm the text, to explain a doubtful phrase, or to expound an obscure clause; and in proportion to the uniformity and universality of that construction, and the known ability and talents of those, by whom it was given, is the credit, to which it is entitled. It can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.8 We shall have abundant reason hereafter to observe, when we enter upon the analysis of the particular clauses of the constitution, how many loose interpretations, and plausible conjectures were hazarded at an early period, which have since silently died away, and are now retained in no living memory, as a topic either of praise or blame, of alarm or of congratulation.

§ 408. And, after all, the most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments upon particular questions discussed, and settled upon their own single merits. These approach the nearest in their own nature to judicial expositions; and have the same general recommendation, that belongs to the latter. They are decided upon solemn argument, pro re nata, upon a doubt raised, upon a lis mota, upon a deep sense of their importance and difficulty, in the face of the nation, with a view to present action, in the midst of jealous interests, and by men capable of urging, or repelling the grounds of argument, from their exquisite genius, their comprehensive learning, or their deep meditation upon the absorbing topic. How light, compared with these means of instruction, are the private lucubrations of the closet, or the retired speculations of ingenious minds, intent on theory, or general views, and unused to encounter a practical difficulty at every step!

§ 409. But to return to the rules of interpretation arising ex directo from the text of the constitution. And first the rules to be drawn from the nature of the instrument. (1.) It is to be construed, as a frame, or fundamental law of government, established by the PEOPLE of the United States, according to their own free pleasure and sovereign will. In this respect it is in no wise distinguishable from the constitutions of the state governments. Each of them is established by the people for their own purposes, and each is founded on their supreme authority. The powers, which are conferred, the restrictions, which are imposed, the authorities, which are exercised, the organization and distribution thereof, which are provided, are in each case for the same object, the common benefit of the governed, and not for the profit or dignity of the rulers.

§ 410. And yet it has been a very common mode of interpretation to insist upon a diversity of rules in construing the state constitutions, and that of the general government. Thus, in the Commentaries of Mr Tucker upon Blackstone, we find it laid down, as if it were an incontrovertible doctrine in regard to the constitution of the United States, that “as federal, it is to be construed strictly, in all cases, where the antecedent rights of a state may be drawn in question. As a social compact, it ought likewise “to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the object of dispute; because every person, whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society, to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government.”9

§ 411. We here see, that the whole reasoning is founded, not on the notion, that the rights of the people are concerned, but the rights of the states. And by strict construction is obviously meant the most limited sense belonging to the words. And the learned author relies, for the support of his reasoning, upon some rules laid down by Vattel in relation to the interpretation of treaties in relation to odious things. It would seem, then, that the constitution of the United States is to be deemed an odious instrument. And why, it may be asked? Was it not framed for the good of the people, and by the people? One of the sections of Vattel, which is relied on, states this proposition,10 “That whatever tends to change the present state of things, is also to be ranked in the class of odious things.” Is it not most manifest, that this proposition is, or at least may be, in many cases, fundamentally wrong? If a people free themselves from a despotism, is it to be said, that the change of government is odious, and ought to be construed strictly? What, upon such a principle, is to become of the American Revolution; and of our state governments, and state constitutions? Suppose a well-ordered government arises out of a state of disorder and anarchy, is such a government to be considered odious? Another section11 adds, “Since odious things are those, whose restriction tends more certainly to equity than their extension, and since we ought to pursue that line, which is most conformable to equity, when the will of the legislature or of the contracting parties is not exactly known, we should, where there is a question of odious things, interpret the terms in the most limited sense. We may even, to a certain degree, adopt a figurative meaning in order to avert the oppressive consequences of the proper and literal sense, or any thing of an odious nature, which it would involve.” Does not this section contain most lax and unsatisfactory ingredients for interpretation? Who is to decide, whether it is most conformable to equity to extend, or to restrict the se se? Who is to decide, whether the provision is odious? According to this rule, the most opposite interpretations of the same words would be equally correct, according as the interpretator should deem it odious or salutary. Nay, the words are to be deserted, and a figurative sense adopted, whenever he deems it advisable, looking to the odious nature or consequence of the common sense. He, who believes the general government founded in wisdom, and sound policy, and the public safety, may extend the words. He, who deems it odious, or the state governments the truest protection of all our rights, must limit the words to the narrowest meaning.

§ 412. The twelfth amendment to the constitution is also relied on by the same author, which declares, “that 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.” He evidently supposes, that this means “in all cases not expressly submitted to the new government “; yet the word “expressly” is no where found in the amendment. But we are not considering, whether any powers can be implied; the only point now before us is, how the express powers are to be construed. Are they to be construed strictly, that is, in their most limited sense? Or are they to receive a fair and reasonable construction, according to the plain meaning of the terms and the objects, for which they are used?

§ 413. When it is said, that the constitution of the United States should be construed strictly, viewed as a social compact, whenever it touches the rights of property, or of personal security, or liberty, the rule is equally applicable to the state constitutions in the like eases. The principle, upon which this interpretation rests, if it has any foundation, must be, that the people ought not to be presumed to yield up their rights of property or liberty, beyond what is the clear sense of the language and the objects of the constitution. All governments are founded on a surrender of some natural rights, and impose some restrictions. We may not be at liberty to extend the grants of power beyond the fair meaning of the words in any such case; but that is not the question here under discussion. It is, how we are to construe the words as used, whether in the most confined, or in the more liberal sense properly belonging to them. Now, 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 all other cases of grants, that the parties had not in view any large sense of the terms, because the objects were a derogation permanently 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 necessariIy arises. The strict, or the more extended sense, both being within the letter, may be fairly held to be within their intention, as either shall best promote the very objects of the people in the grant; as either shall best promote or secure their rights, property, or liberty. The words are not, indeed, to be stretched beyond their fair sense; but within that range, the rule of interpretation must be taken, which best follows out the apparent intention.12 This is the mode (it is believed) universally adopted in construing the state constitutions. It has its origin in common sense. And it never can be a matter of just jealousy; because the rulers can have no permanent interest in a free government, distinct from that of the people, of whom they are a part, and to whom they are responsible. Why the same reasoning should not apply to the government of the United States, it is not very easy to conjecture.

§ 414. But it is said, that the state governments being already in existence, and the people subjected to them, their obedience to the new government may endanger their obedience to the states, or involve them in a conflict of authority, and thus produce inconvenience. In the first place, it is not true, in a just sense, (if we are right in our view of the constitution of the United States,) that such a conflict can ultimately exist. For if the powers of the general government are of paramount and supreme obligation, if they constitute the supreme law of the land, no conflict, as to obedience, can be found. Whenever the question arises, as to whom obedience is due, it is to be judicially settled; and being settled, it regulates, at once, the rights and duties of all the citizens.

§ 415. In the next place, the powers given by the people to the general government are not necessarily carved out of the powers already confided by them 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.13 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. Why should a power in the hands of one functionary be differently construed in the hands of another functionary, if, in each case, the same object is in view, the safety of the people. 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; that there is no danger in trusting them; but that all the peril and all the oppression impend on the other side. The people have not so said, or thought; and they have the exclusive right to judge for themselves on the subject. They avow, that the constitution of the United States was adopted by them, “in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity.” It would be a mockery to ask, if these are odious objects. If these require every grant of power, withdrawn from the state governments, to be deemed strictissimi juris, and construed in the most limited sense, even if it should defeat these objects. What peculiar sanctity have the state governments in the eyes of the people beyond these objects? Are they not framed for the same general ends? Was not the very inability of the state governments suitably to provide for our national wants, and national independence, and national protection, the very groundwork of the whole system?

§ 416. If this be the true view of the subject, the constitution of the United States is to receive as favourable a construction, as those of the states. Neither is to be construed alone; but each with a reference to the other. Each belongs to the same system of government; each is limited in its powers; and within the scope of its powers each is supreme. Each, by the theory of our government, is essential to the existence and due preservation of the powers and obligations of the other. The destruction of either would be equally calamitous, since it would involve the ruin of that beautiful fabric of balanced government, which has been reared with so much care and wisdom, and in which the people have reposed their confidence, as the truest safeguard of their civil, religious, and political liberties. The exact limits of the powers confided by the people to each, may not always be capable, from the inherent difficulty of the subject, of being defined, or ascertained in all cases with perfect certainty.14 But the lines are generally marked out with sufficient broadness and clearness; and in the progress of the development of the peculiar functions of each, the part of true wisdom would seem to be, to leave in every practicable direction a wide, if not an unmeasured, distance between the actual exercise of the sovereignty of each. In every complicated machine slight causes may disturb the operations; and it is often more easy to detect the defects, than to apply a safe and adequate remedy.

§ 417. The language of the Supreme Court, in the case of Martin v. Hunter,15 seems peculiarly appropriate to this part of our subject. “The constitution of the United States,” say the court, “was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States.16 There can be no doubt, that it was competent to the people to invest the general government with all the powers, which they might deem proper and necessary; to extend or restrain those powers according to their own good pleasure; and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the states the exercise of any powers, which were in their judgment incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation; or to reserve to themselves those sovereign authorities, which they might not choose to delegate to either. The constitution was hot, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions. For the powers of the state governments depend upon their own constitutions; and the people of every state had a right to modify or restrain them according to their own views of policy or principle. On the other hand, it is perfectly clear, that the sovereign powers, vested in the state governments by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.” These deductions do not rest upon general reason, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the constitution, which declares, that “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.”17

    ” The government, then, of the United States, can claim no powers, which are not granted to it by the constitution; and the powers actually granted must be such, as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction according to the import of its terms. And where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.”

§ 418. A still more striking response to the argument for a strict construction of the constitution will be found in the language of the court, in the case of Gibbons v. Ogden, Mr. Chief Justice Marshall, in delivering the opinion of the court, says, “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 for 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 construction, which would extend words beyond their natural and obvious import, we might question the application of the terms, 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 is 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 ensure 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 connexion with the purposes, for which they were conferred.”18

§ 419. IV. From the foregoing considerations we deduce the conclusion, that as a frame or fundamental law of government, (2.) The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution; that, which will give it efficacy and force, as a government, rather than that, which will impair its operations, and reduce it to a state of imbecility. Of course we do not mean, that the words for this purpose are to be strained beyond their common and natural sense; but keeping within that limit, the exposition is to have a fair and just latitude, so as on the one hand to avoid obvious mischief, and on the other hand to promote the public good.19

§ 420. This consideration is of great importance in construing a frame of government; and a fortiori a frame of government, the free and voluntary institution of the people for their common benefit, security, and happiness. It is wholly unlike the case of a municipal charter, or a private grant, in respect both to its means and its ends. When a person makes a private grant of a particular thing , or of a license to do a thing, or of an easement for the exclusive benefit of the grantee, we naturally confine the terms, however general, to the objects clearly in the view of the parties. But even in such cases, doubtful words, within the scope of those objects, are construed most favourably for the grantee; because, though in derogation of the rights of the grantor, they are promotive of the general rights secured to the grantee. But, where the grant enures, solely and exclusively, for the benefit of the grantor himself, no one would deny the propriety of giving to the words of the grant a benign and liberal interpretation. In cases, however, of private grants, the objects generally are few; they are certain; they are limited; they neither require, nor look to a variety of means or changes, which are to control, or modify either the end, or the means.

§ 421. In regard also to municipal charters, or public grants, similar considerations usually apply. They are generally deemed restrictive of the royal or public prerogative, or of the common rights secured by the actual organization of the government to other individuals, or communities. They are supposed to be procured, not so much for public good, as for private or local convenience. They are supposed to arise from personal solicitation, upon general suggestions, and not ex certa causa, or ex mero motu of the king, or government itself. Hence, such charters are often required by the municipal jurisprudence to be construed strictly, because they yield something, which is common, for the benefit of a few. And yet, where it is apparent, that they proceed upon greater or broader motives, a liberal exposition is not only indulged, but is encouraged, if it manifestly promotes the public good.20 So that we see, that even in these cases, common sense often dictates a departure from a narrow and strict construction of the terms, though the ordinary rules of mere municipal law may not have favoured it.

§ 422. But a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. That would be to destroy the spirit, and to cramp the letter. It has been justly observed, that “the constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specification of its powers, or to declare the means, by which those powers should be carried into execution. It was foreseen, that it would be a perilous, and difficult, if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years; but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen, what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.”21 Language to the same effect will be found in other judgments of the same tribunal.22

§ 423. If, then, we are to give a reasonable construction to this instrument, as a constitution of government established for the common good, we must throw aside all notions of subjecting it to a strict interpretation, as if it were subversive of the great interests of society, or derogated from the inherent sovereignty of the people. And this will naturally lead us to some other rules properly belonging to the subject.

§ 424. V. Where the power is granted in general terms, the power is to be construed, as coextensive with the terms, unless some clear restriction upon it is deducible from the context. We do not mean to assert, that it is necessary, that such restriction should be expressly found in the context. It will be sufficient, if it arise by necessary implication. But it is not sufficient to show, that there was, or might have been, a sound or probable motive to restrict it. A restriction founded on conjecture is wholly inadmissible. The reason is obvious: the text was adopted by the people in its obvious, and general sense. We have no means of knowing, that any particular gloss, short of this sense, was either contemplated, or approved by the people; and such a gloss might, though satisfactory in one state, have been the very ground of objection in another. It might have formed a motive to reject it in one, and to adopt it in another. The sense of a part of the people has no title to be deemed the sense of the whole. Motives of state policy, or state interest, may properly have influence in the question of ratifying it; but the constitution itself must be expounded, as it stands; and not as that policy, or that interest may seem now to dictate. We are to construe, and not to frame the instrument.23

§ 425. VI. A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate; and in its common aspect addresses itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is no wise entitled. The argument ab inconvenienti is sufficiently open to question, from the laxity of application, as well as of opinion, to which it leads. But the argument from a possible abuse of a power against its existence or use, is, in its nature, not only perilous, but, in respect to governments, would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible to foresee all the exigencies, which may arise in the progress of events, connected with the rights, duties, and operations of a government. If they could be foreseen, it would be impossible ab ante to provide for them. The means must be subject to perpetual modification, and change; they must be adapted to the existing manners, habits, and institutions of society, which are never stationary; to the pressure of dangers, or necessities; to the ends in view; to general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those, who administer the government, a very large mass of discretionary powers, capable of greater or less actual expansion according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed some where; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise; and ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies. Few cases are to be supposed, in which a power, however general, will be exerted for the permanent oppression of the people.24 And yet, cases may easily be put, in which a limitation upon such a power might be found in practice to work mischief; to incite foreign aggression; or encourage domestic disorder. The power of taxation, for instance, may be carried to a ruinous excess; and yet, a limitation upon that power might, in a given case, involve the destruction of the independence of the country.

§ 426. VII. On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous.25 If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may fairly be presumed, that the mischief is less than what would arise from a further extension of the power; or that it is the least of two evils. Nor should it ever be lost sight of, that the government of the United States is one of limited and enumerated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people, what they hare not chosen to do for themselves It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta est, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice, than mere policy and convenience Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes, or the policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and for ever.

§ 427. It has been observed with great correctness, that although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter; yet the spirit is to be collected chiefly from the letter. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case, for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent, unless the natural and common import of words be varied, construction becomes necessary, and a departure from the obvious meaning of words is justifiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one, where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.26 This language has reference to a case where the words of a constitutional provision are sought to be restricted. But it appears with equal force where they are sought to be enlarged.

§ 428. VIII. No construction of a given power is to be allowed, which plainly defeats, or impairs its avowed objects. If, therefore, the words are fairly susceptible of two interpretations, according to their common sense and use, the one of which would defeat one, or all of the objects, for which it was obviously given, and the other of which would preserve and promote all, the former interpretation ought to be rejected, and the latter be held the true interpretation. This rule results from the dictates of mere common sense; for every instrument ought to be so construed, ut magis valeat, quam pereat.27 For instance, the constitution confers on congress the power to declare war. Now the word declare has several senses. It may mean to proclaim, or publish. But no person would imagine, that this was the whole sense, in which the word is used in this connexion. It should be interpreted in the sense, in which the phrase is used among nations, when applied to such a subject matter. A power to declare war is a power to make, and carry on war. It is not a mere power to make known an existing thing, but to give life and effect to the thing itself.28 The true doctrine has been expressed by the Supreme Court: “If from the imperfection of human language there should be any serious doubts respecting the extent of any given power, the objects, for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.”29

§ 429. IX. Where a power is remedial in its nature, there is much reason to contend, that it ought to be construed liberally. That was the doctrine of Mr. Chief Justice Jay, in Chisholm v. Georgia;30 and it is generally adopted in the interpretation of laws.31 But this liberality of exposition is clearly inadmissible, if it extends beyond the just and ordinary sense of the terms.

§ 430. X. In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself. This results from the very nature and design of a constitution. In giving the power, it does not intend to limit it to any one mode of exercising it, exclusive of all others. It must be obvious, (as has been already suggested,) that the means of carrying into effect the objects of a power may, nay, must be varied, in order to adapt themselves to the exigencies of the nation at different times.32 A mode efficacious and useful in one age, or under one posture of circumstances, may be wholly vain, or even mischievous at another time. Government presupposes the existence of a perpetual mutability in its own operations on those, who are its subjects; and a perpetual flexibility in adapting itself to their wants, their interests, their habits, their occupations, and their infirmities.33

§ 431. Besides; if the power only is given, without pointing out the means, how are we to ascertain, that any one means, rather than another, is exclusively within its scope? The same course of reasoning, which would deny a choice of means to execute the power, would reduce the power itself to a nullity. For, as it never could be demonstrated, that any one mode in particular was intended, and to be exclusively employed; and, as it might be demonstrated, that other means might be employed, the question, whether the power were rightfully put into exercise, would for ever be subject to doubt and controversy. If one means is adopted to give it effect, and is within its scope, because it is appropriate, how are we to escape from the argument, that another, falling within the same predicament, is equally within its scope? If each is equally appropriate, how is the choice to be made between them? If one is selected, how does that exclude all others? If one is more appropriate at one time, and another at another time, where is the restriction to be found, which allows the one, and denies the other? A power granted in a frame of government is not contemplated to be exhausted in a single exertion of it, or uno flatu. It is intended for free and permanent exercise; and if the discretion of the functionaries, who are to exercise it, is not limited, that discretion, especially, as those functionaries must necessarily change, must be coextensive with the power itself. Take, for instance, the power to make war. In one age, this would authorize the purchase and employment of the weapons then ordinarily used for this purpose. But suppose these weapons are wholly laid aside, and others substituted, more efficient and powerful; is the government prohibited from employing the new modes of offence and defence? Surely not. The invention of gunpowder superseded the old modes of warfare, and may perhaps, by future inventions, be superseded in its turn. No one can seriously doubt, that the new modes would be within the scope of the power to make war, if they were appropriate to the end. It would, indeed, be a most extraordinary mode of interpretation of the constitution, to give such a restrictive meaning to its powers, as should obstruct their fair operation. A 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 be their intention, to clog and embarrass its execution, by withholding the most appropriate means. There can be no reasonable ground for preferring that construction, which would render the operations of the government difficult, hazardous, and expensive; or for imputing to the framers of the constitution a design to impede the exercise of its powers, by withholding a choice of means.

§ 432. In the practical application of government, then, the public functionaries must be left at liberty to exercise the powers, with which the people by the constitution and laws have entrusted them. They must have a wide discretion, as to the choice of means; and the only limitation upon that discretion would seem to be, that the means are appropriate to the end. And this must naturally admit of considerable latitude; for the relation between the action and the end has has been justly remarked) is not always so direct and palpable, as to strike the eye of every observer.34 If the end be legitimate and within the scope of the constitution, all the means, which are appropriate, and which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect.35 When, then, it is asked, who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the Union, the true answer is, that the national government, like every other, must judge in the first instance of the proper exercise of its powers; and its constituents in the last. If the means are within the reach of the power, no other department can inquire into the policy or convenience of the use of them. If there be an excess by overleaping the just boundary of the power, the judiciary may generally afford the proper relief; and in the last resort the people, by adopting such measures to redress it, as the exigency may suggest, and prudence may dictate.36

§ 433. XI. And this leads us to remark, in the next place, that in the interpretation of the constitution there is no solid objection to implied powers.37 Had the faculties of man been competent to the framing of a system of government, which would leave nothing to implication, it cannot be doubted, that the effort would have been made by the framers of our constitution. The fact, however, is otherwise. There is not in the whole of that admirable instrument a grant of powers, which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.38 There is no phrase in it, which, like the articles of confederation,39 excludes incidental and implied powers, and which requires, that every thing granted shall be expressly and minutely described. Even the tenth amendment, which was framed for the purpose of quieting the excessive jealousies, which had been excited, omits the word “expressly,” (which was contained in the articles of confederation,) and declares only, that “the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” thus leaving the question, whether the particular power, which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument. The men, who drew and adopted this amendment, had experienced the embarrassments, resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions, of which its great powers will admit, and of all the means, by which these may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredient which compose those objects, be deduced from the nature of those objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why, else, were some of the limitations, found in the ninth section of the first article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term, which might prevent its receiving a fair and just interpretation. In considering this point, we should never forget, that it is a constitution we are expounding.40

§ 434. The reasoning of the Federalist is to the same effect. Every power, which is the means of carrying into effect a given power, is implied from the very nature of the original grant. It is a necessary and unavoidable implication from the act of constituting a government, and vesting it with certain specified powers. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws?41 No axiom, indeed, is more clearly established in law or in reason, than that, where the end is required, the means are authorized. Whenever a general power to do a thing is given, every particular power necessary for doing it is included. In every new application of a general power, the particular power, which are the means of attaining the object of the general power, must always necessarily vary with that object; and be often properly varied, whilst the object remains the same.42 Even under the confederation, where the delegation of authority was confined to express powers, the Federalist remarks, that it would be easy to show, that no important power delegated by the articles of confederation had been, or could be, executed by congress, without recurring more or less to the doctrine of construction or implication!43

§ 435. XII. Another point, in regard to the interpretation of the constitution, requires us to advert to the rules applicable to cases of concurrent and exclusive powers. In what cases are the powers given to the general government exclusive, and in what cases may the states maintain a concurrent exercise? Upon this subject we have an elaborate exposition by the authors of the Federalist;44 and as it involves some of the most delicate questions growing out of the constitution, and those, in which a conflict with the states is most likely to arise, we cannot do better than to quote the reasoning.

§ 436. “An entire consolidation of the states into one complete national sovereignty, would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the state governments would clearly retain all the rights of sovereignty, which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation of state sovereignty, would only exist in three cases: where the constitution in express terms granted an exclusive authority to the Union; where it granted, in one instance, an authority to the Union, and in another, prohibited the states from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another, which might appear to resemble it; but which would, in fact, be essentially different: I mean, where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority. These three cases of exclusive jurisdiction in the federal government, may be exemplified by the following instances. The last clause but one in the eighth section of the first article, provides expressly, that congress shall exercise ‘exclusive legislation ‘ over the district to be appropriated as the seat of government. This answers to the first case. The first clause of the same section empowers congress ‘to lay and collect taxes, duties, imposts, and excises; ‘ and the second clause of the tenth section of the same article declares, that ‘no state shall, without the consent of congress, lay any imposts or duties on imports or exports, except for the purpose of executing its inspection laws;’ Hence would result an exclusive power in the Union to lay duties on imports and exports, with the particular exception mentioned. But this power is abridged by another clause, which declares, that no tax or duty shall be laid on articles exported from any state; in consequence of which qualification, it now only extends to the duties on imports. This answers to the second case. The third will be found in that clause, which declares, that congress shall have power ‘ to establish an uniform rule of naturalization throughout the United States.’ This must necessarily be exclusive; because, if each state had power to prescribe a distinct rule, there could be no uniform, rule.” The correctness of these rules of interpretation has never been controverted; and they have been often recognised by the Supreme Court.45

§ 437. The two first rules are so completely selfevident, that every attempt to illustrate them would be vain, if it had not a tendency to perplex and confuse. The last rule, viz. that which declares, that the power is exclusive in the national government, where an authority is granted to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant, is that alone, which may be thought to require comment. This rule seems, in its own nature, as little susceptible of doubt, as the others in reference to the constitution. For, since the constitution has declared, that the constitution and laws, and treaties in pursuance of it shall be the supreme law of the land; it would be absurd to say, that a state law, repugnant to it, might have concurrent operation and validity; and especially, as it is expressly added, any thing in the constitution or laws of any state to the contrary notwithstanding. The repugnancy, then, being made out, it follows, that the state law is just as much void, as though it had been expressly declared to be void; or the power in congress had been expressly declared to be exclusive. Every power given to congress is by the constitution necessarily supreme; and if, from its nature, or from the words of the grant, it is apparently intended to be exclusive, it is as much so, as if the states were expressly forbidden to exercise it.46

§ 438. The principal difficulty lies, not so much in the rule, as in its application to particular cases. Here, the field for discussion is wide, and the argument upon construction is susceptible of great modifications, and of very various force. But unless, from the nature of the power, or from the obvious results of its operations, a repugnancy must exist, so as to lead to a necessary conclusion, that the power was intended to be exclusive, the true rule of interpretation is, that the power is merely concurrent. Thus, for instance, an affirmative power in congress to lay taxes, is not necessarily incompatible with a like power in the States. Both may exist without interference; and if any interference should arise in a particular case, the question of supremacy would turn, not upon the nature of the power, but upon supremacy of right in the exercise of the power in that case.47 In our complex system, presenting the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only enumerated powers, and of numerous state governments, which retain and exercise many powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers would be often of the same description, and might sometimes interfere. This, however, does not prove, that the one is exercising, or has a right to exercise, the powers of the other.48

§ 439. And this leads us to remark, that in the exercise of concurrent powers, if there be a conflict between the laws of the Union and the laws of the state, the former being supreme, the latter must of course yield. The possibility, nay the probability, of such a conflict was foreseen by the framers of the constitution, and was accordingly expressly provided for. If a state passes a law inconsistent with the constitution of the United States it is a mere nullity. If it passes a law clearly within its own constitutional powers, still if it conflicts with the exercise of a power given to congress, to the extent of the interference its operation is suspended; for, in a conflict of laws, that which is supreme must govern. Therefore, it has often been adjudged, that if a state law is in conflict with a treaty, or an act of congress, it becomes ipso facto inoperative to the extent of the conflict.49

§ 440. From this great rule, that the constitution and laws, made in pursuance thereof, are supreme; and that they control the constitutions and laws of the states, and cannot be controlled by them, from this, which may be deemed an axiom, other auxiliary corollaries may be deduced. In the first place, that, if a power is given to create a thing, it implies a power to preserve it. Secondly, that a power to destroy, if wielded by a different hand, is hostile to and incompatible with this power to create and preserve. Thirdly, that where this repugnancy exists, the authority, which is supreme, must control, and not yield to that, over which it is supreme.50 Consequently, the inferior power becomes a nullity.51

§ 441. But a question of a still more delicate nature may arise; and that is, how far in the exercise of a concurrent power, the actual legislation of congress supersedes the state legislation, or suspends its operation over the subject matter. Are the state laws inoperative only to the extent of the actual conflict; or does the legislation of congress suspend the legislative power of the states over the subject matter? To such an inquiry, probably, no universal answer could be given. It may depend upon the nature of the power, the effect of the actual exercise, and the extent of the subject matter.

§ 442. This may, perhaps, be best illustrated by putting a case, which has been reasoned out by a very learned judge, in his own words:52 “Congress has power,” says he, “to provide for organizing, arming, and disciplining the militia; and it is presumable, that the framers of the constitution contemplated a full exercise of all these powers. Nevertheless, if congress had declined to exercise them, it was competent to the state governments to provide for organizing, arming, and disciplining their respective militia in such manner, as they might think proper. But congress has provided for these subjects in the way, which that body must have supposed the best calculated to promote the general welfare, and to provide for the national defence. After this, can the state governments enter upon the same ground, provide for the same objects, as they may think proper, and punish, in their own way, violations of the laws they have so enacted? The affirmative of this question is asserted by counsel, etc. who contend, that unless such state laws are in direct contradiction to those of the United States, they are not repugnant to the constitution of the United States. – From this doctrine I must, for one, be permitted to dissent. The two laws may not be in such absolute opposition to each other, as to render the one incapable of execution without violating the injunctions of the other; and yet the will of the one legislature may be in direct collision with that of the other. This will is to be discovered, as well by what the legislature has not declared, as by what they have expressed. Congress, for example, have declared, that the punishment for disobedience of the act of congress shall be a certain fine. If that provided by the state legislature for the same offence be a similar fine with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But surely the will of Congress is nevertheless thwarted and opposed.”53 He adds, “I consider it a novel and unconstitutional doctrine, that in cases, where the state governments have a concurrent power of legislation with the national government, they may legislate upon any subject, on which congress has acted, provided the two laws are not in terms, or in their operation contradictory and repugnant to each other.”54

§ 443. Another illustration may be drawn from the opinion of the court in another highly important case. One question was, whether the power of congress to establish uniform laws on the subject of bankruptcies was exclusive, or concurrent with the states. “It does not appear,” it was then said, “to be a violent construction of the constitution, and is certainly a convenient one, to consider the power of the states as existing over such cases, as the laws of the Union may not reach. Be this as it may, the power of congress may be exercised, or declined, as the wisdom of that body shall decide. If, in the opinion of congress, uniform laws concerning bankruptcies ought not to be established, it does not follow, that partial laws may not exist, or that state legislation on the subject must cease. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws; but their actual establishment, which is inconsistent with the partial acts of the states. If the right of the states to pass a bankrupt law is not taken away by the mere grant of that power to congress, it cannot be extinguished. It can only be suspended by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer the power on the states; but it removes a disability to its exercise, which was created by the act of congress.”55

It is not our intention to comment on these cases; but to offer them as examples of reasoning in favour and against the exclusive power, where a positive repugnancy cannot be predicated.

§ 444. It has been sometimes argued, that when a power is granted to congress to legislate in specific cases, for purposes growing out of the Union, the natural conclusion is, that the power is designed to be exclusive; that the power is to be exercised for the good of the whole by the will of the whole, and consistently with the interests of the whole; and that these objects can no where be so clearly seen, or so thoroughly weighed, as in congress, where the whole nation is represented. But the argument proves too much; and pursued to its full extent, it would establish, that all the powers granted to congress are exclusive, unless where concurrent authority is expressly reserved to the states.56 For instance, upon this reasoning the power of taxation in congress would annul the whole power of taxation of the states; and thus operate a virtual dissolution of their sovereignty. Such a pretension has been constantly disclaimed.

§ 445. On the other hand, it has been maintained with great pertinacity, that the states possess concurrent authority with congress in all cases, where the power is not expressly declared to be exclusive, or expressly prohibited to the states; and if, in the exercise of a concurrent power, a conflict arises, there is no reason, why each should not be deemed equally rightful.57 But it is plain, that this reasoning goes to the direct overthrow of the principle of supremacy; and, if admitted, it would enable the subordinate sovereignty to annul the powers of the superior. There is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to these very measures, is declared to be supreme over that, which exerts the control.58 For instance, the states have acknowledgedly a concurrent power of taxation. But it is wholly inadmissible to allow that power to be exerted over any instrument employed by the general government to execute its own powers; for such a power to tax involves a power to destroy; and this power to destroy may defeat, and render useless the power to create.59 Thus a state may not tax the mail, the mint, patent rights, custom-house papers, or judicial process of the courts of the United States.60 And yet there is no clause in the constitution, which prohibits the states from exercising the power; nor any exclusive grant to the United States. The apparent repugnancy creates, by implication, the prohibition. So congress, by the constitution, possess power to provide for governing such part of the militia, as may be employed in the service of the United States. Yet it is not said, that such power of government is exclusive. But it results from the nature of the power. No person would contend, that a state militia, while in the actual service and employment of the United States, might yet be, at the same time, governed and controlled by the laws of the state. The very nature of military operations would, in such case, require unity of command and direction. And the argument from inconvenience would be absolutely irresistible to establish an implied prohibition.61 On the other hand, congress have power to provide for organizing, arming, and disciplining the militia; but if congress should make no such provision, there seems no reason, why the states may not organize, arm, and discipline their own militia. No necessary incompatibility would exist in the nature of the power; though, when exercised by congress, the authority of the states must necessarily yield. And, here, the argument from inconvenience would be very persuasive the other way. For the power to organize, arm, and discipline the militia, in the absence of congressional legislation, would seem indispensable for the defence and security of the states.62 Again, congress have power to call forth the militia to execute the laws of the Union, to suppress insurrections, and repel invasions. But there does not seem any incompatibility in the states calling out their own militia as auxiliaries for the same purpose.63

§ 446. In considering, then, this subject, it would be impracticable to lay down any universal rule, as to what powers are, by implication, exclusive in the general government, or concurrent in the states; and in relation to the latter, what restrictions either on the power itself, or on the actual exercise of the power, arise by implication. In some cases, as we have seen, there may exist a concurrent power, and yet restrictions upon it must exist in regard to objects. In other cases, the actual operations of the power only are suspended or controlled, when there arises a conflict with the actual operations of the Union. Every question of this sort must be decided by itself upon its own circumstances and reasons. Because the power to regulate commerce, from its nature and objects, is exclusive, it does not follow, that the power to pass bankrupt laws also is exclusive.64

§ 447. We may, however, lay down some few rules, deducible from what has been already said, in respect to cases of implied prohibitions upon the existence or exercise of powers by the states, as guides to aid our inquiries. (1.) Wherever the power given to the general government requires, that, to be efficacious and adequate to its end, it should be exclusive, there arises a just implication for deeming it exclusive. Whether exercised, or not, in such a case makes no difference. (2.) Wherever the power in its own nature is not incompatible with a concurrent power in the states, either in its nature or exercise, there the power belongs to the states. (3.) But in such a case, the concurrency of the power may admit of restrictions or qualifications in its nature, or exercise. In its nature, when it is capable from its general character of being applied to objects or purposes, which would control, defeat, or destroy the powers of the general government. In its exercise, when there arises a conflict in the actual laws and regulations made in pursuance of the power by the general and state governments. In the former case there is a qualification engrafted upon the generality of the power, excluding its application to such objects and purposes. In the latter, there is (at least generally) a qualification, not upon the power itself, but only upon its exercise, to the extent of the actual conflict in the operations of each. (4.) In cases of implied limitations or prohibitions of power, it is not sufficient to show a possible, or potential inconvenience. There must be a plain incompatibility, a direct repugnancy, or an extreme practical inconvenience, leading irresistibly to the same conclusion. (5.) If such incompatibility, repugnancy, or extreme inconvenience would result, it is no answer, that in the actual exercise of the power, each party may, if it chooses, avoid a positive interference with the other. The objection lies to the power itself, and not to the exercise of it. If it exist, it may be applied to the extent of controlling, defeating, or destroying the other. It can never be presumed, that the framers of the constitution, declared to be supreme, could intend to put its powers at hazard upon the good wishes, or good intentions, or discretion of the states in the exercise of their acknowledged powers. (6.) Where no such repugnancy, incompatibility, or extreme inconvenience would result, then the power in the states is restrained, not in its nature, but in its operations, and then only to the extent of the actual interference. In fact, it is obvious, that the same means may often be applied to carry into operation different powers. And a state may use the same means to effectuate an acknowledged power in itself, which congress may apply for another purpose in the acknowledged exercise of a very different power. Congress may make that a regulation of commerce, which a state may employ as a guard for its internal policy, or to preserve the public health or peace, or to promote its own peculiar interests.65 These rules seem clearly deducible from the nature of the instrument; and they are confirmed by the positive injunctions of the tenth amendment of the constitution.

§ 448. XIII. Another rule of interpretation deserves consideration in regard to the constitution. There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience. Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another. Lord Bacon’s remark, “that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated,” has been perpetually referred to, as a fine illustration. These maxims, rightly understood, and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition. But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text, and the objects of the instrument. Thus, it has been suggested, that an affirmative provision in a particular case excludes the existence of the like provision in every other case; and a negative provision in a particular case admits the existence of the same thing in every other case.66 Both of these deductions are, or rather may be, unfounded in solid reasoning.67 Thus, it was objected to the constitution, that, having provided for the trial by jury in criminal cases, there was an implied exclusion of it in civil cases. As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases, and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt, or reject it in all or any other cases.68 One might with just as much propriety hold, that, because congress has power “to declare war,” but no power is expressly given to make peace, the latter is excluded; or that, because it is declared, that “no bill of attainder, or ex post facto law shall be passed” by congress, therefore congress possess in all other cases the right to pass any laws. The truth is, that in order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument. These, and these only, can properly determine the rule of construction. There can be no doubt, that an affirmative grant of powers in many cases will imply an exclusion of all others. As, for instance, the constitution declares, that the powers of congress shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretensions to a general legislative authority. Why? Because an affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended.69 In relation, then, to such a subject as a constitution, the natural and obvious sense of its provisions, apart from any technical or artificial rules, is the true criterion of construction.70

§ 449. XIV. Another rule of interpretation of the constitution, suggested by the foregoing, is, that the natural import of a single clause is not to be narrowed, so as to exclude implied powers resulting from its character, simply because there is another clause, which enumerates certain powers, which might otherwise be deemed implied powers within its scope; for in such cases we are not, as a matter of course, to assume, that the affirmative specification excludes all other implications. This rule has been put in a clear and just light by one of our most distinguished statesmen; and his illustration will be more satisfactory, perhaps, than any other, which can be offered. “The constitution,” says he, “vests in congress, expressly, the power to lay and collect taxes, duties, imposts, and excises, and the power to regulate trade. That the former power, if not particularly expressed, would have been included in the latter, as one of the objects of a general power to regulate trade, is not necessarily impugned by its being so expressed. Examples of this sort cannot sometimes be easily avoided, and are to be seen elsewhere in the constitution. Thus, the power ‘to define and punish offences against the law of nations’ includes the power, afterwards particularly expressed, ‘to make rules concerning captures,’ etc. from offending neutrals. So, also, a power ‘to coin money’ would, doubtless, include that of ‘ regulating its value,’ had not the latter power been expressly inserted. The term taxes, if standing alone, would certainly have included ‘duties, imposts, and excises.’ In another clause it is said, ‘ no tax or duty shall be laid on exports.’ Here the two terms are used as synonymous. And in another clause, where it is said ‘no state shall lay any imposts or duties,’ etc. the terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terms and phrases, differing in their shades of meaning, (always to be expounded with reference to the context, and under the control of the general character and scope of the instrument, in which they are found,) are to be ascribed, sometimes to the purposes of greater caution, sometimes to the imperfection of language, and sometimes to the imperfection of man himself. In this view of the subject it was quite natural, however certainly the power to regulate trade might include a power to impose duties on it, not to omit it in a clause enumerating the several modes of revenue authorized by the construction. In few cases could the [rule], ex majori cautela, occur with more claim to respect.”71

§ 450. We may close this view of some of the more important rules to be employed in the interpretation of the constitution, by adverting to a few belonging to mere verbal criticism, which are indeed but corollaries from what has been said, and have been already alluded to; but which, at the same time, it may be of some use again distinctly to enunciate.

§ 451. XV. In the first place, then, every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.

§ 452. XVI. But, in the next place, words, from the necessary imperfection of all human language, acquire different shades of meaning, each of which is equally appropriate, and equally legitimate; each of which recedes in a wider or narrower degree from the others, according to circumstances; and each of which receives from its general use some indefiniteness and obscurity, as to its exact boundary and extent.72 We are, indeed, often driven to multiply commentaries from the vagueness of words in themselves; and perhaps still more often from the different manner, in which different minds are accustomed to employ them. They expand or contract, not only from the conventional modifications introduced by the changes of society; but also from the more loose or more exact uses, to which men of different talents, acquirements, and tastes, from choice or necessity apply them. No person can fail to remark the gradual deflections in the meaning of words from one age to another; and so constantly is this process going on, that the daily language of life in one generation sometimes requires the aid of a glossary in another. It has been justly remarked,73 that no language is so copious, as to supply words and phrases for every complex idea; or so correct, as not to include many, equivocally denoting different ideas. Hence it must happen, that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms, in which it is delivered. We must resort then to the context, and shape the particular meaning, so as to make it fit that of the connecting words, and agree with the subject matter.

§ 453. XVII. In the next place, where technical words are used, the technical meaning is to be applied to them, unless it is repelled by the context.74 But the same word often possesses a technical, and a common sense. In such a case the latter is to be preferred, unless some attendant circumstance points clearly to the former. No one would doubt, when the constitution has declared, that “the privilege of the writ of habeas corpus shall not be suspended, unless” under peculiar circumstances, that it referred, not to every sort of writ, which has acquired that name; but to that, which has been emphatically so called, on account of its remedial power to free a party from arbitrary imprisonment.75 So, again, when it declares, that in suits at common law, etc. the right of trial by jury shall be preserved, though the phrase “common law” admits of different meanings, no one can doubt, that it is used in a technical sense. When, again, it declares, that congress shall have power to provide a navy, we readily comprehend, that authority is given to construct, prepare, or in any other manner to obtain a navy. But when congress is further authorized to provide for calling forth the militia, we perceive at once, that the word “provide” is used in a somewhat different sense.

§ 454. XVIII. And this leads us to remark, in the next place, that it is by no means a correct rule of interpretation to construe the same word in the same sense, wherever it occurs in the same instrument. It does not follow, either logically or grammatically, that because a word is found in one connexion in the constitution, with a definite sense, therefore the same sense is to be adopted in every other connexion, in which it occurs.76 This would be to suppose, that the framers weighed only the force of single words, as philologists or critics, and not whole clauses and objects, as statesmen, and practical reasoners. And yet nothing has been more common, than to subject the constitution to this narrow and mischievous criticism. Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the constitution a word used in some sense, which falls in with their favourite theory of interpreting it, have made that the standard, by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning, when it seemed too large for their purposes, and extending it, when it seemed too short. They have thus distorted it to the most unnatural shapes, and crippled, where they have sought only to adjust its proportions according to their own opinions. It was very justly observed by Mr. Chief Justice Marshall, in The Cherokee Nation v. The State of Georgia,77 that “it has been said, that the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument. Their meaning is controlled by the context. This is undoubtedly true. In common language, the same word has various meanings; and the peculiar sense, in which it is used in any sentence, is to be determined by the context.” A very easy example of this sort will be found in the use of the word “establish,” which is found in various places in the constitution. Thus, in the preamble, one object of the constitution is avowed to be “to establish justice,” which seems here to mean to settle firmly, to fix unalterably, or rather, perhaps, as justice, abstractedly considered, must be considered as forever fixed and unalterable, to dispense or administer justice. Again, the constitution declares, that congress shall have power “to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies,” where it is manifestly used as equivalent to make, or form, and not to fix or settle unalterably and forever. Again, “congress shall have power to establish post-offices and post-roads,” where the appropriate sense would seem to be to create, to found, and to regulate, not so much with a view to permanence of form, as to convenience of action. Again, it is declared, that “congress shall make no law respecting an establishment of religion,” which seems to prohibit any laws, which shall recognise, found, confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing, or to arise in future. In this clause, establishment seems equivalent in meaning to settlement, recognition, or support. And again, in the preamble, it is said, “We, the people, etc. do ordain and establish this constitution,” etc. where the most appropriate sense seems to be to create, to ratify, and to confirm. So, the word “state” will be found used in the constitution in all the various senses, to which we have before alluded. It sometimes means, the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by these societies; sometimes these societies as organized into these particular governments; and lastly, sometimes the people composing these political societies in their highest sovereign capacity.78

§ 455. XIX. But the most important rule, in cases of this nature, is, that a constitution of government does not, and cannot, from its nature, depend in any great degree upon mere verbal criticism, or upon the import of single words. Such criticism may not be wholly without use; it may sometimes illustrate, or unfold the appropriate sense; but unless it stands well with the context and subject matter, it must yield to the latter. While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget, that it is an instrument of government we are to construe; and, as has been already stated, that must be the truest exposition, which best harmonizes with its design, its objects, and its general structure.79

§ 456. The remark of Mr. Burke may, with a very slight change of phrase be addressed as an admonition to all those, who are called upon to frame, or to interpret a constitution. Government is a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. The business of those, who are called to administer it, is to rule, and not to wrangle. It would be a poor compensation, that one had triumphed in a dispute, whilst we had lost an empire;80 that we had frittered down a power, and at the same time had destroyed the republic.


FOOTNOTES

     1.    “The government of the Union,” says Mr. Chief Justice Marshall, in delivering the opinion of the court in McCulloch v. Maryland, 4 Wheat. 316, “is emphatically and truly a government of the people. It emanates from them; its powers are granted by them, and are to be exercised directly on them and for their benefit.” Id. 404, 405; see also Cohens v. Virginia, 6 Wheat. R. 264, 413, 414. “The government of the United States was erected,” says Mr. Chancellor Kent, with equal force and accuracy, “by the free voice and the joint will of the people of America for their common defence and general welfare.” 1 Kent’s Comm. Lect. 10, p. 189.
     2.    I have used the expressive words of Mr. Webster, deeming them as exact as any that could be used. See Webster’s Speeches, p, 410, 418, 419; 4 Elliot’s Debates, 338, 343.
     3.    1 Black. Comm. 59, 60. See also Ayliffe’s Pandects, B. 1, tit 4, p. 25, &c.; 1 Domat. Prelim. Book, p. 9; Id. Treatise on Laws, ch. 12, p. 74.
     4.    Id. See also Woodes. Elem. of Jurisp. p. 36. — Rules of a similar nature will be found laid down in Vattel, B. 2, ch. 17, from §262 to 310, with more ample illustrations and more various qualifications. But not a few of his rules appear to me to want accuracy and soundness. Bacon’s Abridg. title, Statute I. contains an excellent summary of the rules for construing statutes. Domat, also, contains many valuable rule in respect to interpretation. See his Treatise on Laws, c. 12, p. 74 &c. and Preliminary Discourse, tit. 1, §2, p. 6 to 16.
     5.    Book 2, ch. 7, §3.
     6.    The foregoing remarks are borrowed almost in terms from Rutherforth’s Institutes of Natural Law (B. 2, ch. 7, §4 to 11), which contain a very lucid exposition of the general rules of interpretation. The whole chapter deserves an attentive perusal.
     7.    The value of contemporary interpretation is much insisted on by the Supreme Court, in Stuart v. Laird, 2 Cranch, 299, 309, in Martin v. Hunter, 1 Wheat. R. 304, and in Cohens v. Virginia, 6 Wheat. R. 264, 418 to 421. There are several instances, however, in which the contemporary interpretations by some of the most distinguished founders of the constitution have been overruled. One of the most striking is to be found in the decision of the Supreme Court of the suability of a state by any citizen of another state;a and another in the decision by the Executive and the Senate, that the consent of the latter is not necessary to removals from office, although it is for appointments.b
     a.    Chisholm v. Georgia, 2 Dall. 419.
     b.    The Federalist, No. 77.
     8.    Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution.c The first is “The capital and lending object of the constitution was, to leave with the states all authorities, which respected their own citizens only, and to transfer to the United States those, which respected citizens of foreign or other states; to make us several as to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favour of the states in the former, if possible, to be so construed.” Now, the very theory, on which this canon is founded, is contradicted by the provisions of the constitution itself. I many instances authorities and powers are given, which respect citizens of the respective states, without reference to foreigners, or the citizens of other states.d But if this general theory were true, it would furnish no just rule of interpretation, since a particular clause might form an exception to it; and, indeed, every clause ought, at all events, to be construed according to its fair intent and objects, as disclosed in its language. What sort of a rule is that, which, without regard to the intent or objects of a particular clause, insists, that it shall, if possible, (not if reasonable) be construed in favour of the states, simply because it respects their citizens? The second canon is, “On every question of construction [we should] carry ourselves back to the time, when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying, what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed.” Now, who does not see the utter looseness, and incoherence of this canon. How are we to know, what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail? Besides; of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done, as to the other eight states? What is to be done, as to the eleven new states, which have come into the Union under constructions, which have been established, against what some persons may deem the meaning of the framers of it? How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed. Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few now living, simply because they were actors in those days, (constituting not one in a thousand of those, who were called to deliberate upon the constitution, and not one in ten thousand of those, who were in favour or against it, among the people)? Or are we to be governed by the opinions of those, who constituted a majority of those, who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States? If so, how are we to ascertain, what that sense was? Is the sense of the constitution to be ascertained, not by its own text, but by the “probable meaning” to be gathered by conjectures from scattered documents, from private papers, from the table talk of some statesmen, or the jealous exaggerations of others? Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature, by endeavouring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed, as to “the probable meaning” of the framers or of the people, what interpretation is to be followed? These, and many questions of the same sort, might be asked. It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the “probable meaning” of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own? The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results; but they can never be conclusive. The Federalist denied, that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?
     c.     Jefferson’s Corresp. 373; Id. 391, 392; Id. 396.
     d.     Jefferson’s Corresp. 391, 392, 396.
     9.    1 Tucker’s Black. Comm. App. 151.
  10.    B. 2, § 305.
  11.    § 508.
  12.    Rawle on the Constitution, ch. 1, p. 31.
  13.    Martin v. Hunter, 1 Wheat. R. 304, 325.
  14.    The Federalist, No. 37.
  15.    Wheat. R. 304; S. C. 3 Peters’s Cond. R. 575.
  16.    This is still more forcibly stated by Mr. Chief Justice Marshall in delivering the opinion of the court in McCulloch v. Maryland, in a passage already cited. 4 Wheat. R. 316, 402 to 405.
  17.    See also McCulloch v. Maryland, 4 Wheat. R. 316, 402 to 406.
  18.    See also Id. 222, and Mr. Chief Justice Marshall’s opinion in Ogden v. Saunders, 12 Wheat. R. 332.       It has been remarked by President J.Q. Adams, that “it is a circumstance, which will not escape the observation of a philosophical historian, that the constructive powers of the national government have been stretched to their extremest tension by that party when in power, which has been most tenderly scrupulous of the state sovereignty, when uninvested with the authority of the union themselves.” He adds, “Of these inconsistencies, our two great parties can have little to say in reproof of each other.” Without inquiring into the justice of the remark in general, it may be truly stated. that the Embargo of 1807, and the admission of Louisiana into the Union, are very striking illustrations of the application of constructive powers.
  19.    See Ogden v. Saunders, 12 Wheat. R. 332, Opinion of Mr. Chief Justice Marshall.
  20.    See Gibbons v. Ogden, 9 Wheat. R. 189.
  21.    Hunter v. Martin, 1 Wheat. R. 304, 326, 327; S. C. 3 Peters’s Cond. R. 575, 583.
  22.    See Gibbons v. Ogden, 9 Wheat. R. 1,187, &c. 222, &c.
  23.    See Sturgis v. Crowninshield, 4 Wheat. R. 112, 202.
  24.    Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn, (6 Wheat. 204, 226) uses the following expressive language: “The idea is Utopian, that government can exist without leaving the exercise of discretion some where. Public security against the abuse of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries at short intervals deposit it at the feet of the people, to be resumed again only at their own wills, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger.”
  25.    See United States v. Fisher, 2 Cranch, 358; S. C. Peters’s Cond. R. 421.
  26.    Sturgis v. Crowninshield, 4 Wheat R 122, 202.
  27.    See Bacon’s Abridg. Statute I; Vattel, B. 2, ch. 17, § 277 to 285, 299 to 302.
  28.    See Bas v. Tingey 4 Dall. R. 37; S. C. 1 Peters’s Cond. R. 221.
  29.    Gibbons v. Ogden, 9 Wheat. R. 1,188, 189.
  30.    2 Dall. R. 419; S. C. 2 Cond. R. 635, 652.
  31.    Bacon’s Abridg. Statute 1. 8.
  32.    The Federalist, No. 44.
  33.    The reasoning of Mr. Chief Justice Marshall on this subject, in McCulloch v. Maryland, (4 Wheat. 316) is so cogent and satisfactory, that we shall venture to cite it at large. After having remarked, that words have various senses, and that what is the true construction of any used in the constitution must depend upon the subject, the context, and the intentions of the people, to he gathered from the instrument, he proceeds thus:

    The subject is the execution of those great powers, on which the welfare of a nation essentially depends. It must have been the intention of those, who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits, as not to leave it in the power of congress to adopt any, which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means, by which government should, in all future time, execute its powers, would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies, which, if foreseen at all, must have been seen dimly, and which can be best provided for, as they occur. To have declared, that the best means shall not be used, but would deny a choice of means to execute the power, would reduce the power itself to a nullity. For, as it never could be demonstrated, that any one mode in particular was intended, and to be exclusively employed; and, as it might be demonstrated, that other means might be employed, the question, whether the power were rightfully put into exercise, would for ever be subject to doubt and controversy. 1 If one means is adopted to give it effect, and is within its scope, because it is appropriate, how are we to escape from the argument, that another, falling within the same predicament, is equally within its scope? If each is equally appropriate, how is the choice to be made between them? If one is selected, how does that exclude all others? If one is more appropriate at one time, and another at another time, where is the restriction to be found, which allows the one, and denies the other? A power granted in a frame of government is not contemplated to be exhausted in a single exertion of it, or uno flatu. It is intended for free and permanent exercise; and if the discretion of the functionaries, who are to exercise it, is not limited, that discretion, especially, as those functionaries must necessarily change, must be coextensive with the power itself. Take, for instance, the power to make war. In one age, this would authorize the purchase and employment of the weapons then ordinarily used for this purpose. But suppose these weapons are wholly laid aside, and others substituted, more efficient and powerful; is the government prohibited from employing the new modes of offence and defence? Surely not. The invention of gunpowder superseded the old modes of warfare, and may perhaps, by future inventions, be superseded in its turn. No one can seriously doubt, that the new modes would be within the scope of the power to make war, if they were appropriate to the end. It would, indeed, be a most extraordinary mode of interpretation of the constitution, to give such a restrictive meaning to its powers, as should obstruct their fair operation. A 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 be their intention, to clog and embarrass its execution, by withholding the most appropriate means. There can be no reasonable ground for preferring that construction, which would render the operations of the government difficult, hazardous, and expensive; or for imputing to the framers of the constitution a design to impede the exercise of its powers, by withholding a choice of means.e

    So, with respect to the whole penal code of the United States: whence arises the power to punish, in cases not prescribed by the constitution? All admit, that the government may legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered ‘to provide for the punishment of counterfeiting the securities and current coin of the United States,’ and ‘to define and punish piracies and felonies committed on the high seas, and offences against the law of nations.’ The several powers of congress may exist, in a very imperfect state to be sure, but they may exist, and be carried into execution, although no punishment should be inflicted in cases, where the right to punish is not expressly given.

    Take, for example, the power ‘to establish post offices and post roads.’ This power is executed by the single act of making the establishment. But, from this has been inferred the power, and duty of carrying the mail along the post road, from one post office to another. And, from this implied power has again been inferred the right to punish those, who steal letters from the post office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those, who rob it, is not indispensably necessary to the establishment of a post office, and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record, or process of a court of the United States, or of perjury in such court. To punish these offences is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.

    The baneful influence of this narrow construction, on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced without hesitation, that the power of punishment appertains to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.f

     e.    McCulloch v. Maryland, 4 Wheat. R. 316, 408.
     f.     See United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters’s Cond. R. 421, 429.
  34.    See the remarks of Mr. Justice Johnson, in delivering the opinion of the court in Anderson v. Dunn, 6 Wheat. R. 204, 226; United States v. Fisher, 2 Cranch. 358; S. C. 1 Peters’s Cond. R. 421, 429.
  35.    McCulloch v. Maryland, 4 Wheat. R, 316, 409, 410, 421, 423; United States v. Fisher, 2 Cranch, 358; S. C. 1 Peters’s Cond. R. 421.
  36.    The Federalist, No. 33, 44; McCulloch v. Maryland, 4 Wheat. R. 316, 423.
  37.    In the discussions, as to the constitutionality of the Bank of the United States, in the cabinet of President Washington, upon the original establishment of the Bank, there was a large range of argument, pro el contra, in respect to implied powers. The reader will find a summary of the lending views on each side in the fifth volume of Marshall’s Life of Washington, App. p. 3, note 3, &c.; 4 Jefferson’s Corresp. 523 to 526; and in Hamilton’s Argument on Constitutionality of Bank, 1 Hamilton’s Works, 111 to 155.
  38.    Anderson v. Dunn, 6 Wheat. 204, 226.
  39.    Article 2.
  40.    Per Mr. Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat R. 316, 406, 407, 421.
  41.    The Federalist, No. 33.
  42.    The Federalist, No. 44.
  43.    The Federalist, No. 44.
  44.    The Federalist, No. 32.
  45.    See Huston v. More, 5 Wheat. R. 1, 22, 24, 48; Ogden v. Gibbons, 9 Wheat. R. 1, 198, 210, 228, 235; Sturgis v. Crowninshield, 4 Wheat. R. 122, 192, 193; Ogden v. Saunders, 12 Wheat. 1, 275, 307, 322, 334, 335.
  46.    Sturgis v. Crowninshield, 4 Wheat. R. 122, 192, 193; Gibbons v. Ogden, 9 Wheat. R. 1, 198, &c.
  47.    The Federalist, No. 32; Gibbons v. Ogden, 9 Wheat. R. 1,198, 199 to 205; McCulloch v. Maryland, 4 Wheat, R. 316, 425.
  48.    Gibbons v. Ogden, 9 Wheat. R. 1, 205. — Mr. Chancellor Kent has given this whole subject of exclusive and concurrent power a thorough examination; and the result will be found most ably stated in his learned Commentaries, Lecture 18. 1 Kent Comm. 364 to 379, 2d edit. p. 387 to 405.
  49.    Ware v. Hylton, 3 Dall. 199, S. C. 1, Conden. R. 99, 112,127, 128, 129; Gibbons v. Ogden, 9 Wheat. R. 1, 210, 211; McCulloch v. Maryland, 4 Wheat. R. 316, 405, 406, 425 to 436 Houston v. Moore. 5 Wheat. R. 1, 22, 24, 49, 51, 53, 56; Sturgis v. Crowninshield, 2 Wheat. R. 1, 190,196; Golden v. Prince, 3 Wash. C. C. R. 313, 321; The Federalist, No. 32; Brown v. Maryland, 12 Wheat. R. 419, 419.
  50.    McCulloch v. Maryland, 4 Wheat. R. 316, 426.
  51.    Sturgis v. Crowninshield, 4 Wheat. R. 1, 193.
  52.    Mr. Justice Washington, Houston v. Moore, 5 Wheat. R. 1, 21, 22.
  53.    5 Wheat R. p. 22.
  54.    Id. 24. See also Golden v. Prince, 3 Wash. C. C. R. 313, 324, &c.;
  55.    Sturgis v. Crowninshield, 4 Wheat. R. 122, 195, 196. See also Gibbons v. Ogden, 9 Wheat. R. 1, 197, 227, 235, 238; Houston v. Moore, 5 wheat. R. 34, 49, 52, 54, 55. — This opinion, that the power to pass bankrupt laws is not exclusive, has not been unanimously adopted by the Supreme Court. Mr. Justice Washington maintained at all times an opposite opinion; and his opinion is known to have been adopted by at least one other of the judges of the Supreme Court. The reasons, on which Mr. J. Washington’s opinion is founded, will be found at large in the case of Golden v. Prince, 3 Wash. C. C. R. 313, 322, &c. See also Ogden v. Saunders, 12 Wheat. R. 213, 264, 265, and Gibbons v. Ogden, 9 Wheat. R. 1, 209, 226, 238.
  56.    Houston v. Moore, 5 Wheat. R. 1, 49, 55, 56.
  57.    See Gibbons v. Ogden, 9 Wheat. R. 1,197, 210; McCulloch v. Maryland, 4 Wheat. R. 316, 527.
  58.    McCulloch v. Maryland, 4 Wheat. R. 316, 431.
  59.    Ibid.
  60.    Id. 432.
  61.    Houston v. Moore, 5 Wheat. R. 1, 53.
  62.    Houston v Moore, 5 Wheat. R. 50, 51, 52.
  63.    Id. 54, 55.
  64.    Sturgis v. Crowninshield, 4 Wheat. 122, 195, 197, 199; Gibbons v. Ogden, 9 Wheat. R. 1,196,197, 209.
  65.    See Gibbons v. Ogden, 9 Wheat. R. 1, 203 to 210.
  66.    See The Federalist, No. 83, 84.
  67.    Cohens v. Virginia, 6 Wheat. R. 395 to 401.
  68.    The Federalist, No. 83.
  69.    The Federalist, No. 83. See Vattel, B. 2, ch, 17, §282.
  70.    The Federalist, No. 83.
  71.    Mr. Madison’s Letter to Mr. Cabell, 18th September, 1828.
  72.    See Vattel, B. 2, ch. 17, §262, §299.
  73.    The Federalist, No. 37.
  74.    See Vattel, B. 2, ch. 17, §276, 277.
  75.    Ex parte Bollman & Swartout, 4 Cranch, 75; S. C. 2 Peters’s Cond. R. 33.
  76.    Vattel, B. 2, ch. 17, §281.
  77.    5 Peters’s Rep. 1, 19.
  78.    Mr. Madison’s Virginia Report, 7 January, 1800, p. 5; ante, §208, p. 193.
  79.    See Vattel, B. 2, ch. 17, §285, 286.
  80.    Burke’s Letter to the Sheriffs of Bristol in 1777.