Government and Administration of the United States

by Westel Woodbury Willoughby; William F. Willoughby

In the political history of our country since the adoption of the constitution, there have been ever present two great constitutional questions, in the conflicting answers to which we must seek the origin and creeds of our great political parties. If we can gain a proper conception of the character of these two questions, we shall have taken a long step towards the understanding of the reasons for the conduct of the various opposing parties, and the basis of the disputes arising between them. These have been the two questions. First, What is the extent of the powers granted by the constitution to the National Government? Second, What is the real nature of our Union; and, arising under this problem, What is the extent to which the States are justified in opposing what they believe to be unconstitutional acts on the part of the National Government; and, Can a State or States, as a last resort, withdraw from the Union? The remainder of this chapter will be mainly devoted to a more particular examination of these questions.

What are the legitimate powers of the United States Government?

The United States government was the result of the union of thirteen independent colonies—a union voluntary on the part of the colonies, yet forced upon them by the evident need of some central power strong enough to enforce obedience at home and demand respect abroad. The determination of what and how many the national powers should be, was the work of the Constitutional Convention. Of the difficulties of this task we have already spoken.

In forming a scheme for a central government, there was the double necessity of creating a government strong enough to perform the duties for which it was established, and yet not so strong as to endanger the free self-government of the States. The delicate point to be adjusted was to give to the Federal Government only such powers as were necessary for the establishment of an effective National Government, and, as far as possible, to retain in the States their full governmental powers; in other words, to harmonize federal strength with State sovereignty.

The fear exhibited by the States in the debates preceding the adoption and ratification of the constitution of 1787, that the National Government might become too strong at the expense of their own powers of government, was not set at rest by the compromises obtained in the convention, nor by the eleven amendments adopted soon after the inauguration of the new government. The reason for the continuance of this fear is that the constitution is so worded that the powers of the general government are not precisely fixed.

The statement sometimes loosely made that a description of our government is contained in the constitution, is apt to be misleading. The constitution has served rather as a foundation upon which to build the government, than as an entire framework. As a distinguished writer has termed it, "The constitution was meant only as a scheme in outline, to be filled up afterwards, and from time to time, by legislation."

A description of our present form of government is far from being contained in the instrument adopted in 1788. For example, the constitution makes no mention of how business shall be transacted by the legislature. Committee Government in Congress owes its existence to no provision of the constitution. The only mention made in the constitution of the Speaker of the House, to-day the most powerful officer in the legislature, is where it is provided that "The House of Representatives shall choose their speaker and other officers." All executive departments—the State, War, Navy, Treasury, Post Office, Interior, Justice, Agriculture, and Labor—have been created from time to time by act of Congress. Regarding the structure and number of federal courts, the constitution merely provides that "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish." Our elaborate system of district, circuit, and territorial courts, rests solely upon congressional enactments. So, too, the constitution gives to Congress the control of territories, but does not provide how that control shall be exercised.

The framers of our constitution were wise in not attempting to specify more particularly than they did, the manner in which the several powers granted to the Federal Government should be exercised. They realized that they were forming a scheme that was to endure for many years, and that if it was to be capable of meeting the needs of a changing and rapidly growing country, it would have to be elastic, and contain within itself the power of adapting itself to new needs and conditions. To secure the beneficial execution of the powers granted, Congress was given the power of selecting appropriate means. To have refused the grant of this power, would have been to attempt to provide by unchangeable rule for emergencies that could by no possibilities be foreseen. Or, as Chief Justice Marshall has put it, "It would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances."

After enumerating the various particular powers given to the Federal Legislature, the constitution further says (Art. I, Sec. 8) "and [shall have power] to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." This is the clause under whose authorization all those powers have been assumed, and functions exercised, that have made the United States government of to-day so different from that of 1789.

The general rule is, as has been said, that the United States government possesses only those powers granted to it by the constitution. But here, in this clause just quoted, is a general grant of all powers necessary or proper for carrying into effect any of the powers particularly granted. Who or what is to decide just what powers are necessary and proper for the accomplishment of this object? Naturally people have not been able to agree upon the question of just what powers are constitutional or expedient as "implied" under this title of "necessary and proper" and this question has been largely instrumental in dividing the people in opposing political parties. There has always been a party, the members of which, favoring great powers for the States rather than for the Federal Government, have been "strict constructionists," and have advocated a close and narrow interpretation of this clause of "implied powers." From their desire to retain in the State governments as many powers as possible, they have been known as the "States' Rights Party." Opposing them has been the party of "loose constructionists," the members of which have held to a free, liberal interpretation of the constitution, and have endeavored to increase the power of the Federal Government. There have never been political parties styling themselves "Strict Constructionists" and "Loose Constructionists," for these are terms that have been used not as titles, but as definitions of different principles of constitutional interpretation. But by whatever name they may have been known, there have been, during the greater part of our history, these two political parties, the one holding to the principle of strict construction and States' Rights, and the other to that of loose construction and federal power.