The Essentials of American Constitutional Law

by Francis Newton Thorpe

25. The powers of Congress, whether expressed or implied, are powers incident to sovereignty, being essential to the existence of the government which sovereignty has created. The principle is laid down in The Federalist, that the government of the Union “must possess all the means and have a right to resort to all the methods of executing the powers with which it is intrusted.”[60] The immediate comparison here is between the government of the United States and those of the States. The federal government must possess powers as adequate for its purposes as are the powers possessed and exercised by the particular States. The principle is laid down by Hamilton yet more explicitly:

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard for the public good and to the sense of the people.[61]

This principle applies to both American governments,—that of each State, and that of the United States. Each within its own jurisdiction is supreme. This means that the national government possesses powers adequate to the existence and efficient operation of such a government. With this principle in mind, the exercise, by Congress, of its powers becomes reasonably plain. The people of the United States are a sovereignty; they have ordained and established the Constitution of the United States. This Constitution is a plan of republican, that is of representative, government. The powers granted by this sovereignty to this government are adequate to the ends and purposes of this government. Whence follows all our constitutional law: for the constitutional law of the States cannot vary essentially from that of the United States. The principle here is stated by Chief Justice Marshall: “The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.”[62]

26. The powers of Congress are derived through this Constitution and are adequate to the legislative needs of the government thus created. Here again applies the principle as to proper legislative powers: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” If this principle be true (and it lies at the basis of government in America), it seems unnecessary that the Constitution should specify, or enumerate the powers of Congress. These which are enumerated may not be said to be in any logical order. Doubtless the qualities of sovereignty are equal qualities—each essential to the supreme end and purpose of sovereignty—which end and purpose is to be and to remain sovereignty.

27. But to Congress and to the State Legislatures powers are granted. Does the grant of powers to Congress extinguish the grant to the State Legislatures? Here, again, Hamilton states the principle:

An entire consolidation of the States into one complete 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 (“of 1787”) 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.[63]

The implication of the extinguishment of the powers of the State Legislature by the powers of Congress can arise only where exercise of State authority is “absolutely and totally contradictory and repugnant to the power delegated to Congress.”[64] Therefore “where the authority of the States is taken away by implication, they may continue to act until the United States exercise their power, because until such exercise there can be no incompatibility.”[65] The principle here laid down is illustrated by laws fixing the standard of weights and measures; bankruptcies; counterfeiting the coin and securities of the United States; copyrights and patent rights. If Congress legislates on these subjects, such legislation excludes State legislation in conflict with it. In the absence of congressional and in the presence of State legislation, on these (and some other subjects falling in the same class) the respective State legislation is supreme within the jurisdiction of the State.[66] Stated in a different way, this principle of American constitutional law would read,—the mere grant to the federal government of power over a subject does not necessarily extinguish State authority over the same subject. Thus the State has power by common law, or by statute, to fix a standard of weights and measures. The issue here is not one merely of authority but of relative authority. The exercise of authority by Congress is not, by that fact, prohibition of exercise of authority by a State. This exercise is radically different from that of legislation on coining money, making treaties, granting titles of nobility, issuing letters of marque and reprisal,—or any other subject over which Congress has exclusive, and a State no jurisdiction. Here the question is one of exclusive, or sole authority. Thus, State Legislatures have authority to pass bankrupt or insolvent laws, provided there is no act of Congress, on the subject, in force establishing a uniform system of bankruptcy conflicting with the State law, and, further, providing that the State law does not impair the obligation of contracts.[67]

28. But State insolvent laws apply to contracts within the State between one of its citizens and a citizen of another State, and they do not apply to contracts not made within the State. The principle here is one of jurisdiction: no State has authority outside its own jurisdiction. Therefore interstate matters are beyond State jurisdiction and are exclusively under the control of Congress. This principle is expressed judicially: “Insolvent laws of one State cannot discharge the contracts of citizens of other States because they have no extra-territorial operation.”[68]

29. Congress exercises any of its powers as an agent of its sovereign, the people of the United States. These powers, like those of the President, or of the federal courts, are expressed or implied; the government of the United States is “a national government with sovereign powers, legislative, executive, and judicial.”[69] Because this government is a sovereign government it possesses the choice of means to make its sovereignty real. Hence it possesses power to pay the debts of the United States, to borrow money, to incorporate banks, to coin money, to make war, and to do whatever acts it considers necessary and proper, and in such manner as it sees fit,—all acts of sovereignty. It alone can determine what is a legal tender, what the value of coins, domestic or foreign (within its jurisdiction) and, in brief it can do all acts such “as accord with the usage of sovereign governments.” Thus the national currency may be coin or paper, as Congress shall regulate. Whatsoever Congress by legislation declares to be a legal tender in payment of debts between individuals or corporations is thereby a legal tender, because Congress is “the legislature of a sovereign nation” and is expressly empowered by the Constitution to enact laws of the kind.[70] This power is commensurate with the jurisdiction of Congress in this matter,—a power which absolutely and totally excludes the power of the several States.

30. As a matter of constitutional law, it must be admitted that, granting the national sovereignty of the people of the United States, it must follow that the legislature of this sovereign nation would possess such power over currency and coinage. That is, the power would be implied if it were not expressed. It is the office or function of a supreme national government to legislate for national ends and purposes.[71]