far greater, power. As a matter of practice, also, the Senate usually increases the House appropriations, thus violating the ancient principle that burdens should be laid by those who are nearest to the tax-payers. The technical skill of the Senators, their long experience, and their superior legal talents frequently enable them to overshadow the House as a law-making body. Furthermore, owing to their relatively small number, they are able to give to measures more careful consideration; and for this reason some of the best of our legislation, at least on the technical side, comes from the Senate rather than from the House.

CHAPTER XIII

THE POWERS OF CONGRESS

THE Congress of the United States is limited to the exercise of the powers enumerated in the Constitution and the use of the means necessary and proper to carry them into execution. In this regard, it stands in sharp contrast to the English Parliament - King, Lords, and Commons. The power and jurisdiction of that great assembly, as Blackstone tersely puts it, "is so transcendent and absolute that it cannot be confined, either for causes or persons, within any bounds. . . . It hath sovereign and uncontrolled authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding laws concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal. . . . It can regulate or new model the succession to the crown, as was done in the reign of Henry VIII and William III. It can alter the established religion of the land, as was done in a variety of instances in the reigns of Henry VIII and his three children. It can change and create afresh even the constitution of the kingdom and of Parliaments themselves, as was done by the act of Union and the several statutes for triennial and septennial elections. It can in short do everything that is not naturally impossible, and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what Parliament doth, no authority upon earth can undo."

Compared with this omnipotence, the powers conferred upon Congress by the Constitution seem few indeed; and, as a matter of fact, most of the great questions which have agitated Great Britain during the last century—the extension of the suffrage, the regulation of factories and labor, the provision of popular education, the establishment of old-age pensions do not come within the range of federal authority at all, but are consigned to state legislatures and constitutional conventions. Nevertheless, Congress enjoys no slight power, and the swiftly multiplying interstate relations, over which it has a wide authority,

far greater, power. As a matter of practie Fercomic matters usually increases the House appropriati

ancient principle that burdens should r itten law has a pronearest to the tax-payers. The ter al aberations of Congress, their long experience, and their superet mica sare before that body enable them to overshadow the stops by some one. A measure Furthermore, owing to their reary,cessary, but if it is clearly able to give to measures more care, it is useless to discuss it. this reason some of the best technical side, comes fren House.

to the constitutionality of a e Sebert of searching inquiry and

lawyers in Congress. Some

s in our national history, -Hayne debate on Foote's stions of constitutionality. It proposal itself is lost sight of in orico-legal speculations, as was etsy just mentioned. The tenidquisition is especially marked is less restricted, and there are more the House. These discussions are fandoubted value in expounding on, but they are also quite as often Per lore or personal vanity. More

en impatient at these diffuse lucuthat many opposing members had ons on the merits of the bill under saght constitutional objections to it.

lebates have only added confusion y dear and simple. "If we must wait ial lawyers agree upon any subject,"

Jan in the House, "it is plain that a stop in any direction. We would stand add every legislative enterprise, amazed 1 to listinguish amid the din of their isable to us and how much of it

Buy any man to define Congress estitud sall lawyers, after he has read

2

Broadly speaking, there are three views of the Constitution which may be taken by any member of Congress in deciding upon a controverted constitutional question. The first of these is known as "strict construction," a view which would restrict the powers of Congress to the bare letter of the written instrument, and confine the means of carrying its powers into execution to those absolutely and imperatively necessary. This theory of interpretation was applied by Jefferson in his opinion on the constitutionality of a federal bank,' and was later used with great acumen by his party as the moral justification for their opposition to the Federalists. During the long controversy over slavery, it was the chief reliance of southern statesmen in resisting the northern pressure on Congress to use its powers as fully as possible in restricting the spread of slavery to the territories. With the disappearance of the old party antagonisms since the Civil War, there have not been many occasions to call the strict construction view into party services. The Democratic party, it is true, occasionally appears to oppose the encroachments of federal authority, but its concrete legislative proposals can hardly be regarded as consonant with a narrow conception of the Constitution.

The second view of the powers of Congress, originally assumed by the Federalist party and taken on various occasions by all parties, as their interests have required, is that of "liberal construction." The adherents to this doctrine deny that there is any warrant in the Constitution for taking the narrow view, and they lay great stress on that clause of the Constitution which authorizes Congress to make all laws necessary and proper for carrying into execution the powers expressly enumerated. They accordingly take a generous view of the enumerated powers, and then interpret the words "necessary and proper" to mean "highly useful and expedient."3 Under this construction, a national bank was created, American industries have been protected, national highways built, paper money issued, and irrigation, reclamation, and other large schemes of public improvement undertaken. Only under this conception of the Constitution has the federal government been made in any way adequate to the exigencies of a national system of economy.

1 Readings, p. 237. * Ibid., p. 240.

2 Ibid., p. 93.

4

Ibid., pp. 66 and 241.

Title of the proper attitude to be taken by Congress im vis daring'de constitutionality of any legislative proposition, yone which has been quite generally taken, consciously or uncarrously, by the liberal constructionists, was thus stated by M.. bourse Cockran, during a debate in the House: "It seems to me that the duty of Congress is to examine closely the condition of the country and keep itself constantly informed of everything alerting the common welfare. Wherever a wrong is found to exith which the nation can deal more effectively than a state, it is the business of Congress to suggest a remedy. . . . Our first step must be in the direction of legislation. The only way we can ascertain definitely whether a law which we believe will prove effective is constitutional or unconstitutional is not by abandoning our elves to a maelstrom of speculations about what the Court Lay hold or has held on subjects more or less kindred, but to legiate, and thus take the judgment of the Court on that specific proposal. We can tell whether it is constitutional or unconstitutional when the Court pronounces upon it and not before. Even if the Court declares it unconstitutional, its decision will not reduce us to helplessness. When it drives us from establishing a remedy by legislation, it will, by that very act, direct us to propose a remedy by constitutional amendment. Having framed a suitable amendment and proposed it to the legislatures of the states, our duty will have been accomplished. The final step toward full redress will then be with the bodies most directly representative of the people affected by the wrong."1

Although the important functions of Congress will be treated more in detail in the chapters which follow, it seems desirable to give here, even at the risk of some repetition, a general survey of all the powers vested in our national legislature. Such a presentation does more than satisfy the theoretical requirements of an academic presentation of the subject. A general view of all the powers of Congress is simply indispensable to an understanding of current politics, for questions of constitutionality underlie all of our political controversies over the powers of the federal and state governments, over centralization and state rights, over national and local reforms. Such a survey is rendered especially necessary by the altogether too widespread confusion which Reinsch, Readings p. 250.

1