CHAPTER XI
THE LAW OF FUNDAMENTAL RIGHTS
149. The people of the several States, and the people of the United States, have delegated powers to the governments which they have respectively created. The powers thus delegated are general, or special. Doubtless the special are implied in the general, but in order to secure precision, and thus to mark off, in practical fashion, the boundaries of the grants, the delegation of a power, or the reservation of a power is declared as clearly as possible in language of adjudicated meaning, or capable of interpretation according to such meaning.
In the American constitutions, both federal and State, many provisions are administrative, that is, prescriptive of method, or procedure, as the strictly parliamentary provisions on the legislative respecting sessions, the journal, the quorum, adjournments, the method of passing bills, and the like. In the article on the judiciary, in State constitutions, provisions are found concerning appeals, writs, minor court officials, sessions of courts, records, decisions, and the like, all of which are of secondary importance as compared with the general grant of judicial power.
In the executive article,—and notably in State constitutions, all that does not strictly belong to the executive office,—that is, to the distinctive functions of the Governor, is administrative. In the Constitution of the United States there is little of this administrative matter formally expressed, but much by implication,—for the appointees of the President (excepting the federal judges) are administrative officers, and the appointees of the President, of the heads of departments, or of the courts of law,—constituting what is known in law as “inferior officers”[422] comprehends quite all persons in the employ of the federal government.
In the State constitutions the important administrative offices are usually named, as of treasurer, auditor general, secretary of state, superintendent of education, commissioner of labor, of insurance, of agriculture, of railways, and the like. The duties of persons elected to these offices are usually prescribed in general terms. Their delegated powers are ascertainable by judicial procedure. A little reflection will make clear that most of the mere business of government, State or federal, is carried on by administrative officials who number, in the aggregate, in the United States quite a million. These persons possess slight, if any discretionary authority; they are ministerial public servants, and in the exercise of authority vested in them they are all amenable to judicial process.
150. That Congress, with delegated powers of legislation, and exercising them as the representative and agent of the sovereign people of the United States, has power to lay and collect taxes, to coin money, to declare war, to regulate commerce, and to do other acts, whether or not these powers were specifically conferred, can hardly be denied. The exercise of such powers goes with the very existence of government. An example is afforded by the decision of the Supreme Court that the power of the United States to acquire territory and to govern it is an exercise of the war power.[423] The Court here reasons from the general to the particular: from the general grant of power to declare war to the particular use of the power in governing an area of territory acquired.
It might seem, then, that as the whole always includes the part, and the general the particular,—the necessary and essential thing to do in creating government is merely to create it; for example, that the people of the United States should ordain and establish a Constitution consisting of the Preamble, which states the purpose and authority of the Constitution, and three general articles:
Article I. The legislative power is vested in Congress.
Article II. The executive power is vested in the President.