[28] Compare the Preamble. The entire discussion in The Federalist is of the conformity of the Constitution to a republican government and of the necessity of governmental powers adequate to governmental purposes.
[29] Art. x.
[30] Marbury v. Madison, 1 Cranch, 176 (1803).
[31] Every question in constitutional law, in the United States, sooner or later leads back to a question of sovereignty. What that sovereignty is can be known only by its operation,—that is, by political experience. What powers are delegated by the Constitution is the question answered (at least in part) by courts of law and legislatures, by publicists and by the actual administration of government. Widely divergent interpretations of that sovereignty and that law have been held throughout our history as a nation. These divergent opinions are recorded in the Debates during the formation and ratification of the Constitution; in the discussions incident to the Kentucky and Virginia Resolutions of 1798; in the discussions relating to Nullification, in 1833; again in 1860 and immediately prior; and in various decisions of the Supreme Court of the United States. Chief Justice Marshall’s decisions (some thirty-six in number), the opinion of that Court in his time, remain the classic interpretation of national sovereignty. The Federalist remains the classic contemporaneous interpretation of the Constitution.
The issue involved is, fundamentally, one of functions, and is viewed at different times with different understandings. As a practical question, it is one of jurisdiction as legally understood, but as a question of service as politically understood. Here enter many and diverse factors as morals, industry, communal interest, public safety, social needs, and the like. Questions growing out of these are not and cannot be decided finally by any generation. Each generation interprets these factors. Thus constitutional interpretation becomes, not a fixed quantity, but an adjustment to reason and necessity. Prudence dictates that interpretation be conservative. The constitutional and political history of America must be read along with its constitutional law. In addition to cases already cited in this chapter, the following may advantageously be read, though each contains matter of special application to other aspects of the subject: Ex parte Siebold, 100 U. S., 371 (1879); The Civil Rights Cases, 109 U. S., 3 (1883); Rogers v. Alabama, 192 U. S., 226 (1904).
[32] Marbury v. Madison, 1 Cranch, 177.
[33] Art. i., 1.
[34] Art. vi., 2.
[35] A typical formulation in Massachusetts, (1780) Pt. I., xxx. Discussed in Taylor v. Place, 4 R. I., 324 (1856.)
[36] McCulloch v. Maryland, 4 Wheaton, 316.