§ 293. If the test should be applied to every Constitution made since that time, the result would be the same. The constitution of every State in the Union, in force to-day, would present the same phase. The maxim in question is supposed to have been founded on the famous saying of Lord Bacon, that " exception strengthens the force of law, in cases not excepted; and enumeration weakens it, in cases not enumerated." But, whatever may be considered its origin, it can have no applicability to this part of the Constitution of the United States. The 1st section vests "all the legislative powers" of the Constitution in Congress, and subsequent sections vest particular powers in the same body. These grants of power may be repetitions, reduplications, or pleonasms, with respect to each other; but no one or more of them, however comprehensive or restrictive, can supersede or abrogate any other. It would be as sensible to contend that the commercial power superseded the money and currency powers, or the war power the army and navy power, as it would be to insist that the power " to constitute tribunals" abrogated the power "to establish justice," and the power " to declare war" the power of " common defence." And either of them would be as sensible as it would be to say, that the special powers supersede the duty of providing for the safety, welfare, and liberty of the people; or that the safety, welfare, and liberty of the people, are only to be sought and secured through the particular regulations specifically authorized and prescribed.
§ 294. It is difficult to consider a suggestion of the idea, that special grants of power to Congress were intended as a full specification of the particulars of the rights and duties of the government under a Constitution avowedly ordained "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty,"—as strictly compatible with honesty of purpose in reasoning. They do not purport to be a specification for any purpose, or the particulars of any whole. They are not embodied or aggregated for any purpose, but scattered throughout the whole instrument. The 8th section cannot be such specification, because it contains but a fraction of the particulars themselves. It requires all the parts to constitute a whole; and, if any smaller number of parts are expected to limit, restrict, or in any respect change the form of that whole, a special authority must be shown for that purpose.
§ 295. But what renders it absolutely impossible that any or all the special powers should have been intended to limit the general powers, is that the special powers themselves expressly reiterate and confer all the general powers. The 8th section authorizes Congress "to pay the debts, and provide for the common defence and general welfare, of the United States," which is an abridgment or epitome of all the avowed purposes of the Constitution, and of all the legitimate purposes of any free government. The last clause of the section is, if possible, still more explicit, expressly giving Congress power "to make all laws . . . necessary and proper for carrying into execution the . . . powers vested ... in the government of the United States, or in any department or officer thereof." The general legislative power is here renewed and again vested in Congress, in as broad and comprehensive terms as it was originally granted in the 1st section, under the name of " all legislative powers" of the Constitution. So that there can be no ground for an argument, that, in this place, a specification of particulars is an exclusion of generals.
§ 296. All the express restrictions on the powers of Congress go far to prove the existence of the power restricted; for who will charge the framers of our Constitution, or the American people, with the absurdity of restricting a non-existing power?1 These restricted powers will be usually found among the more general and undefined legislative powers of the government. The particulars under this head are numerous and satisfactory. We will cite a few of them.
§ 297. By the 4th section, Congress shall meet annually "on the first Monday in December, unless they shall by law appoint a different day." This implies that Congress have the power to appoint any day they please for their annual sessions; and they have practised accordingly. Where is the power delegated? Certainly there is no special and particular provision in the Constitution to this effect. By section 9, "The migration or importation of persons . . . shall not be prohibited by Congress" for twenty years; which implies that both may be done afterwards: and they have been done. By what right? If it be said by the commercial power, it may be
1 "It
would be absurd ... to except from a granted power that which wab not
granted, or that which the words did not comprehend." —2
Story's Com., 508.
"It is a rule of construction,
that exceptions from a power mark its extent." —Per Cur., in
Gibbons v. Ogden, 9 Wheat. K., 191.
added, that the commercial power itself is but a fraction of the
general power which regulates the foreign intercourse of the people,
in order to provide for the " defence and welfare " of the
United States. The writ of habeas corpus was a common-law
right, everywhere respected in the United States before and at the
time of the adoption of the Constitution, for the protection of
personal liberty. By this 9th section, it is in effect made
perpetual, with the liberty it protects, for, if the right "
shall not be suspended" or temporarily abrogated, a fortiori
it shall not be repealed or permanently abrogated. This
restriction is certainly applicable to Congress as well
as the executive, and every body else having any control over the
subject. But what special power is given to Congress over the habeas
corpus, other than what is included in the general legislative
power of the government?§ 298. "No bill of attainder, or ex post facto law, shall be passed." According to the best authorities, these are not rightfully within the category of legislative powers at all.1 But the British Parliament had often passed such statutes before our Revolution, and many of our Revolutionary legislatures afterwards; so it was adjudged wise, ex abundanti cautela, to insert this express restriction, lest a similar power should be wrongfully claimed, not by any specific grant certainly, but under the general authority of the Constitution. But the wisdom and expediency of even this restriction, unnecessary though it may be held to have been, carries with it a broad and irrefragable implication in favor of the validity of any other statute, coming within the rightful purview of legitimate legislation, and free from any such restriction.
1 "A
law that punishes a citizen for an innocent action, or, in other
words, for an act which, when done, was in violation of no existing
law; a law that destroys or impairs the lawful private contracts of
citizens; a law that makes a man judge in his own cause; or a law
that takes property from A, and gives it to B, — is contrary to the
great first principles of the social compact, and cannot be
considered as a rightful exercise of legislative authority." —
Calder v. BuU, 3 Dall. Rep., 386, per Chase, J.
§ 300. The first Amendment is even more explicitly to our purpose than any of the above. It relates to the establishment and free exercise of religion, freedom of speech and of the press, peaceable assemblies of the people, and the right to petition the government. "Which of the enumerated powers, as they have been insidiously called, or what other specific power mentioned in any part of the Constitution, authorizes Congress to touch any one of these subjects, for any purpose whatever? Why, then, restrict the power? So of "the right to keep and bear arms," and divers other valuable common-law rights. Obviously they are all carefully guarded; because, under the general powers of the government to provide for the common defence, the general welfare, and the blessings of liberty, and to do any thing necessary and proper for those purposes," nothing could be said to be beyond the legitimate claims of an agent charged with these duties.
§ 301. Mr. Madison said, in the speech above quoted, " If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands. They may appoint teachers in every State, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare." As Congress have, by express grant, unlimited power to levy and borrow money, and appropriate it to "the common defence and general welfare," what could be more natural or proper than the restrictions, in these Amendments, of this great power, if the people desired so to restrict it? But if, as Mr. Madison attempts to argue, in the face of the express words of the instrument, the Constitution delegates no such power, what could be more absurd, and even ridiculous, than to enact restrictions?
§ 302. Thus the plenary powers of general legislation for the public welfare, as embraced in the enacting clause, for the great purposes of government, are vested in Congress, and are limited only by the laws of God, the principles of free government, and the express or implied restrictions of the Constitution. These two false and groundless assumptions — to wit, that the first paragraph is no part of the Constitution or supreme law; and that the 8th section is an actual specification, by way of eminence, the enumerated powers of the government — form the whole foundation, and only apology for that stupendous perversion of the Constitution known as the State-rights doctrine, which has upheld slavery and culminated in rebellion, both equally opposed to the whole letter and spirit of the Constitution. To argue that, because the power to " provide for the common defence and general welfare" is important and extensive, therefore it ought not, and may not be delegated by the people to their own representatives and agents for their own benefit, is neither conclusive nor forcible. That therefore it is not and was not intended by the people to be so delegated to their own government, is not more convincing or satisfactory. But to say that therefore it is not in the Constitution in fact, as we see it and read it, would be both senseless and puerile, requiring no answer whatever.
- Judge Timothy Farrar, [MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. By TIMOTHY FARRAR, LL.D. Veritatem--"expellas furca, tamen usque recurret."--Horace. "Litera scripts manet." THIRD EDITION REVISED. With An Appendix. BOSTON: LITTLE, BROWN, AND COMPANY. 1872. Pg. 279-288] (The Hon. Timothy Farrar of New Ipswich, N.H. was a judge of the Court of Common Pleas, and vice president and director of the New England Historical and Genealogical Society. He also wrote the Review of the Dred Scott Decision)
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