“I am still laboring to prop the frail and worthless fabric,” wrote Alexander Hamilton to Gouverneur Morris, in 1802, a little more than two years before his death. He had done his utmost, in the convention of 1787, to secure for his country a strong constitution, and had been defeated. Persuaded, nevertheless, that the Constitution which that convention had framed was a vast improvement upon the old Articles of Confederation, he bent his energies in favor of its adoption; and by means of his force and perseverance the adhesion of New York to the charter was, tardily it is true, obtained. After five years of service at the head of the most important department of the executive branch of the government, to which, more than did any other man, he gave form, direction, and impulse, followed by seven years of close and interested observation, as a private citizen, of the working of the government in the hands of others, he passed upon the Constitution the judgment above quoted, — that it was “a frail and worthless fabric.”
It was not the fault of his political opponents that the judgment was not a true one. There is no fact of our early political history more obvious than that the people of the United States were opposed to a strong central government. They accepted the Constitution with a half-suspicious reliance upon the assurances of the leading Federalists that the new government would not be what they dreaded, and rejected the advice of the anti-Federalists with a strong apprehension that the forebodings of that party might be justified. But the existing condition of things was intolerable, and they were forced to take the risk.
Their dislike of “consolidated” government, however, remained, and was deep and all-pervading. “I own,” wrote Jefferson to Madison, from Paris, in December, 1787, “I am not a friend to a very energetic government. It is always oppressive.” Not only from a fear that an energetic government might be oppressive, but because they were fearful that their state governments, to which they were attached, might be extinguished or reduced to insignificance by the central authority, did the people agree with Jefferson. As soon as they decently could, they placed him at the head of affairs. Jefferson was the man for them. He believed, as a large majority of them did, in a strict limitation of the national authority, and in the inviolability of state rights. The theory that the Constitution gave any other rights to the general government than those which were expressly conferred, that there were any “implied” powers, was utterly abhorrent to him. He and his school, which is even now not quite extinct, set themselves sternly against the exercise of any power for which no express warrant could be found in the Constitution. Jefferson, Madison, and Monroe were all in favor of using the public money to build roads and canals, — to make internal improvements. But they could not deduce the right from the Constitution; and so they vetoed bills appropriating money for such objects, while warmly advising Congress, in the same breath, to propose an amendment to the Constitution authorizing such appropriations.
But even Jefferson was too late with his resistance to the tendency to find more in the Constitution than was in its words. The master-mind of Chief Justice Marshall had already laid the foundation of a school of constitutional interpretation which is now completely in the ascendant. There is no longer a vestige of pure Jeffersonianism in our politics. When the exercise of any new power by the general government is proposed, the objection that that power is not expressly conferred by the Constitution is never heard. One party is very prone to deny that such new power is implied by any other grant of power; but all the great principles for which the old party of “strict construction” battled have been, one by one, abandoned. This statement requires not a single exception to be made.
How this great change has been wrought it must be left for the political historian to relate. It is the combined result of political consistency and of inconsistency, — of men preaching nationalism from a conviction of its truth and wisdom, and of men driven by temporary party necessity to take the national view; of foreign and domestic war; of the acquisition of new territory; of the growth of a railroad system; and of a series of legal decisions. The fact that the change has come about is sufficient for our purposes. But it is essential to appreciate the extent of it. Let the student of political history read the dreary dissertations contained in the messages of early Presidents upon the strict division of powers between state and nation, and the narrow limitations of “federal” authority; let him, if he can, read through to the end Monroe’s diffuse and hair-splitting memorandum of 1822 on internal improvements; let him analyze the doctrine of nullification, which originated with Jefferson and was first embodied in the Virginia and Kentucky resolutions, and which survived long after the time of Jackson; let him recall the official sanction given to the principle that, though a State might not secede from the Union, the power did not reside in Congress to coerce a sovereign State; let him review the old controversies over the Bank, over the national control of the militia, — in the war of 1812, over the public-land fund, over slavery, — and then let him consider what are the undisputed powers of the national government to-day.
“The power to make the notes of the government a legal tender in payment of private debts being one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution, we are irresistibly impelled,” say all the justices of the Supreme Court of the United States, — excepting only Mr. Justice Field, — speaking by Mr. Justice Gray, “to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execution of undoubted powers of Congress.” …
The question of the constitutionality of the legal-tender issue, and the further question as to the effect of the recent decision upon the future of our currency, are matters by themselves. It is not proposed here to touch upon them even remotely. The significance of the decision, for present purposes, lies wholly in the assertion of a new source of power to the general government.
For let it be observed that Mr. Justice Gray, at the beginning of the paragraph from which the above quotation is taken, refers to Congress “as the legislature of a sovereign nation; … being clearly authorized, as incidental to” certain enumerated powers, “to emit bills of credit, to charter national banks, and to provide a national currency for the whole people in the form of coin, treasury notes, and national bank-bills,” etc. The emission of bills of credit, the charter of national banks, and the provision of a national currency are all implied or derived powers. Not one of them is found expressed in the Constitution. And now we have the new doctrine that any power possessed by other sovereign nations, not expressly withheld from Congress, which is adapted to the exercise of an implied power, may be constitutionally exercised by Congress.
It is needless to say that this decision thus takes us a longer step toward nationalism than did the great decision of Chief Justice Marshall in the Bank case, — longer than has any other former decision, — and that it bears us to a point much further from the position in which the fathers of the government stood than we have ever yet occupied.
Heretofore it has been held in a vague way, even by those who were most willing to discover implied and derived powers, that the government of the United States was a distinct creation. It gained authority, not as monarchical governments have gained it, by the rule of the strongest, sometimes the sovereign and sometimes the subject, evolving mutual rights and obligations as the result of successive contests, conquests, and compromises; nor yet as those republics have gained it which have arisen on the ruins of overthrown monarchies wherein all the rights previously possessed by the sovereign have been transferred to the people and their representatives. In our case a number of sovereignties, self-styled, first handed themselves by a league, and then deliberately surrendered certain of their powers to a new general government which embraced them all. There was never a national government created out of nothing in a truer sense than ours was; and heretofore it has invariably been held that the national authority is derived wholly, either in a direct or in an implied form, from the Constitution, — no power whatever resulting from the fact that it is “a sovereign nation,” or from the fact that this or that power “belongs to sovereignty in other civilized nations.”
Furthermore, and as a sort of consequence of this now-exploded doctrine, it has been supposed that there were certain things which other sovereign nations assumed and exercised the right to do which no government could do in the United States. There were powers not conferred upon Congress, nor yet reserved to the States, but reserved “to the people;” that is, they did not exist as governmental powers at all. No exact list of these rights could be made. Some of them are enumerated in state bills of rights; a few of them are named in the first nine amendments to the Constitution of the United States; and others, it might be reasonably contended, are “implied” in those amendments.
This idea of rights usually exercised by sovereign governments, and yet not possessed by any government in our own country, has not been much discussed, for the simple reason that the converse proposition that all legal powers in this land had their origin in a formal grant from the people was the broader theory, and covered this. But that it has existed every American knows. How often have we congratulated ourselves that in our favored country individuals had rights which were lightly treated by certain governments of the Old World, but which no authority, state or national, among us could legally take away!
In the decision of the Supreme Court upon the legal-tender case, Mr. Justice Gray remarks, “If, upon a just and fair interpretation of the whole Constitution, a particular power or authority appears to be vested in Congress, it is no constitutional objection to its existence, or to its exercise, that the property or the contracts of individuals may be incidentally affected.” This is a guarded way of asserting the right of Congress to pass a “law impairing the obligations of contracts,” which the States are expressly prohibited from doing.
But why should the right be affirmed in guarded language? Since it is “one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution,” why should not the court be “irresistibly impelled” to hold that a measure directly, and not merely “incidentally,” impairing the obligations of contracts is legal and constitutional? For example, should Congress deem it necessary, in order to make the legal-tender clauses effective, and to defeat every attempt to evade them, to enact that all contracts calling for the payment of a specified number of dollars, even if it were a part of the contract that such payment should be made in gold coin of the United States of the present standard, might be legally discharged with treasury notes, — in such a case there would be a direct impairment of the obligations of contracts. Whoever agrees to receive “dollars,” without specifying the kind of dollars, takes the risk of congressional interference with the monetary standard. If he specifies the metal and the weight of dollars, he endeavors to secure himself against such interference.
Certainly, Mr. Justice Gray and his associates upon the bench who concurred in his opinion and reasoning were not required, by the necessity of the case before them, to declare whether or not they believe Congress can pass a valid law which directly and necessarily impairs the obligations of contracts, as well as one which incidentally may do so. But neither was there any necessity for qualifying the assertion, as Mr. Justice Gray did, unless there was a doubt in his own mind, or in that of some of his associates, as to the constitutionality of such a law. If, as may be inferred without much risk, the court entertains such a doubt, that merely shows what we are just now endeavoring to prove: that some of the justices, if not the learned author of the legal-tender decision, have still lurking in their minds the old idea that there are certain attributes of sovereignty, not prohibited to Congress by the Constitution, that might conceivably be essential to the effective exercise even of undoubted powers, which Congress may not lawfully assume. What becomes of the relics of this notion, after Judge Gray’s decision, will be presently considered.
But let us here notice two important points. The first, while it most affects the particular matter which was before the court, has a bearing upon the general subject. It is this: Control over the money standard which extends so as to cover the right to debase the coinage and to change the terms of contracts is one of the highest, that is to say one of the most absolute, privileges of sovereignty. Congress has heretofore exercised this privilege without judicial rebuke, but never without at least a plausible excuse and a show of fairness. When the weight of the gold dollar was reduced, in 1834, — an act to which reference is made in this decision, — the country was without a gold currency. The old rating of gold and silver, established in accordance with Hamilton’s mint report, was fifteen to one, and the result was that silver, being overvalued, stayed in the country, and the gold, what little there was of it, went out. When, therefore, Congress diminished the intrinsic value of the gold dollar it impaired the obligations of few, if any, contracts, since at that time no debts were accustomed to be paid in gold; and it had a distinct and very commendable object in view, namely, to supply the country with gold currency, which would stay at home, from the then newly opened Carolina mines. The excuse in the other case, the resumption of the coinage of the silver dollar, is well known, as the affair is quite recent. It was asserted that silver was demonetized by a “trick,” and remonetization was demanded as an act of justice to silver—as though a senseless metal could be wronged—and to the people, although there was not a contract in existence which would not have been more easily satisfied with gold than with silver, at the time the silver dollar was demonetized. Silly as the argument was, it had force with people who did not, perhaps could not, comprehend the excellent reasons why the coinage of the old silver dollar was discontinued. The only other interference with the money standard was made when the legal-tender act was passed. For that act there was the excuse of war. But, in the words of Mr. Sumner, it was “the medicine of the Constitution,” which the court now virtually says may be legally made “its daily food.”
These cases are referred to, with the excuse for each, in order to show that Congress has never claimed the right to debase the coinage for such reasons as have impelled European sovereigns repeatedly to take that step. That Congress possesses the power to do so, at least so far as coined money is concerned, is as little doubtful as that it may declare war and conclude peace. But it is matter of history that this right can be and has been used by tyrants for the oppression of the people, and to rob private citizens of their property without due compensation, more effectively than almost any other weapon of despotism. While no limitation of the power is expressed in the Constitution, Congress has evidently felt under a moral obligation to exercise it so that no citizen would be oppressed, his property or income diminished, or his contracts impaired in value. Only under the stress of war for the nation’s life has this rule been disregarded.
The other point is that it makes no difference, in the exercise of such sovereign rights as involve loss to the individual, that the sovereign is the whole people rather than an absolute monarch. The good of all may require the sacrifice of one man, or of many men. But our government has been understood to differ from others in its implied and even expressed doctrine that each man has unalienable rights; and some of these are enumerated in the Constitution and its amendments, including certain exemptions which no other power upon earth admits to their fullest extent.
We have, then, reached this point: Congress, under the recent decision of the Supreme Court, has a right, in its own discretion, and without regard to the incidental results of its act upon the property of individual citizens, to adopt a measure which is more capable than almost any other exercise of sovereign power of being used as a means of oppression, in the use of a right which is only implied in and derived from the Constitution. This is a second full step away from the letter of the Constitution. The first was taken when implied powers were discovered. Now it is pronounced competent to do what, not being prohibited, other sovereign nations might do, — to carry out the secondary and derived powers.
As has been said already, the discussion of this decision upon the future of the currency is no part of the purpose of this article. It is pertinent, however, to point out that its reasoning covers, with the protection of the Constitution, every form of tampering with the currency that is possible. If it should seem advisable to Congress to confer the legal-tender quality upon the notes of national banks, the court must logically sustain the act. Should it be deemed necessary to emit notes bearing the legend, “This is legal tender for one dollar,” the court cannot pronounce the issue illegal. For the right to provide a national currency for the whole country being “undoubted,” and the further right to attach the legal-tender quality to any money which the government may provide being a sovereign power not prohibited to Congress, the exercise of these rights in any form which it may please Congress to adopt will be permitted under the reasoning of the court.
What has been said thus far has been by no means written in a spirit of adverse criticism upon this very important decision, although such a purpose may have been inferred from the form of the argument. The method adopted has been chosen in order to show how far the Supreme Court has carried us on the road which leads to nationalism.
We had nearly or quite reached the limit of national power, under the broadest interpretation of the Constitution which has at any time been given to it by any school of statesmen, and some close students of the operation of our institutions have feared that governmental progress would be soon impeded, if not altogether stopped, by the practical unchangeableness of a Constitution which apparently did not warrant the adoption of certain measures which are, or soon may be, necessary. But just as this point is reached we have this legal-tender decision, which broadens and lengthens the field of legitimate congressional action immensely. As the doctrine of derived powers was employed to give wider scope to a government which its founders intended to confine within narrow limits, so this new theory of powers, constitutional because they are not prohibited, provided they are designed to aid in the effective exercise of enumerated or derived powers, will be appealed to and relied upon, for the extension of national legislative functions.
The application of this new principle is for the future. But one or two conceivable examples of its usefulness may be given here, merely to show what a field of constitutional controversy and development has been opened.
It has heretofore been maintained, almost as a constitutional axiom, that all elections, state as well as national, must be held under the supervision and control of the States. No doubt, with regard to the choice of presidential electors and of Senators, such elections are a state concern, although it would not be difficult to discover a power in the government to ascertain whether or not the laws governing these elections had been faithfully and honestly observed. But with reference to the House of Representatives the case is quite different. Representatives must have certain qualifications; they must be chosen by the people of the several States; and the power is directly granted to Congress to make or alter laws regulating the times, places, and manner of holding elections for Representatives.
Under this power Congress has passed a law prescribing a time for holding such elections; arid by another law it has made provision in certain cases, upon application being made, for the appointment of supervisors of elections. These latter have, however, no actual control over the elections. They can only use their eyes, and report what they see. The registration is wholly independent of them. They cannot order an offered vote to be received or rejected. Their count of the votes is merely a verification, and is not the official count. The governing returns are made to the state authorities, and the credentials of the member-elect are issued by the governor. Why is this? Simply because it has always been assumed that Congress has no power to bring the national authority directly in contact with the people of the several States, and to take immediate, supreme, and exclusive control of an election of Representatives.
Yet Congress has power “to make all laws which shall be necessary arid proper for carrying into execution … all powers vested by this Constitution … in any department or officer thereof.” The House of Representatives is a department of the government, which has the power of judging “of the elections, returns, and qualifications of its own members;” and the power has been expressly conferred upon Congress to regulate the manner of choosing Representatives. Moreover, the fairness and honesty of elections for Representatives are especially a national concern, and of far less importance to the State, which may be improperly represented if the election has been carried by fraud and corruption, than to the country at large, whose whole policy may be modified by local dishonesty.
If, now, we apply the broadly stated principle of Mr. Justice Gray’s opinion to this matter, we shall see that the direction of a Representative election in all its parts, — the appointment of election judges, the custody of the ballot boxes, the reception or rejection of votes, the count and the returns, — being one of the powers belonging to sovereignty in other civilized nations, and not expressly withheld from Congress by the Constitution, and “being an appropriate means, conducive and plainly adapted to the execution of undoubted powers of Congress,” may be constitutional.
No other illustration is needed, at this time, of the possible effect which the new light cast upon the Constitution by the Supreme Court may have upon our future development. That it sanctions the use of more radical measures for carrying into execution the “undoubted powers” of Congress than have ever been regarded as within the legal capacity of the government is conspicuously evident, it may be predicted with great confidence that this decision will be made to serve, on many future occasions, as the justification of an extension of the national authority in various directions. It leaves but one step more for the court to take, namely, to declare that all powers not expressly withheld from the Congress by the Constitution, which inhere in the sovereignty exercised by other civilized nations, are vested in Congress. It may require another century to bring us to that point, as it has occupied nearly a hundred years to develop the principle of nationalism in the United States to its present position. But when the point is reached we shall find the Constitution not the “frail and worthless fabric” which it appeared to Hamilton, after thirteen years of operation, but an instrument which really authorizes Congress “to pass all laws which they shall judge necessary to the common defense and general welfare of the Union,” — according to Hamilton’s scheme of a government, to which the convention of 1787 did not pay even the compliment of a vote, yea or nay.
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