"If,"says he,"there be any general principle which is inherent in the very definition of government,and essential to every step of the progress to be made by that of the United States,it is that every power vested in the government is,in its nature,sovereign,and includes,by force of the term,a right to employ all the means requisite,and fairly applicable to the attainment of the end of such power,unless they are excepted in the Constitution,or are immoral,or are contrary to the essential objects of political society."This is by no means a legitimate conclusion from his own fair and forcible reasoning.The doctrine here is,in effect,that the Federal Government is absolutely unrestricted in the selection and use of the means of executing its own powers,except only so far as those means are excepted in the Constitution.Whether or not they are "requisite,"
"fairly applicable to the attainment of the end of such power,""immoral or contrary to the essential objects of political society,"all these are questions which the government alone can decide,and,of course,as their own judgment and discretion are their only rule,they are under no sort of limitation or control in these respects.The standards of political morality,of public convenience and necessity,and of conformity to the essential objects of society,are quite too fluctuating and indeterminate to be relied on,by a free people,as checks upon the powers of their rulers.
The only real restriction,then,which the author proposes in the above passage,is that which may be found in the fact,that the proposed means are "excepted"in the Constitution;and this is directly contrary to the letter and spirit of that instrument.The Federal Government possesses no power which is not "delegated";"the powers not delegated to the United States by the Constitution,nor prohibited by it to the States,are reserved by the States respectively,or to the people."Judge Story's idea is,that every thing is granted which is not excepted;whereas,the language of the tenth amendment is express,that every thing is excepted which is not granted.If the word "excepted"is to be understood in this sense,the author's idea is correct;but this does not accord with the general scope of his opinions,and reasoning.He approaches much nearer to the true rule in the following passage.Let the end be legitimate;let it be within scope of the Constitution;and all means which are appropriate,which are plainly adapted to the end,and which are not prohibited,but are consistent with the letter and spirit of the instrument ,are constitutional."
The words in italics are all important,in the matter,and give to the passage a meaning wholly different from that of the passage first quoted.
Judge Story's error is equally great,and far more dangerous,in supposing that the means of executing its powers are conferred on the government.
The general proposition is true,as he has stated it;but it is not true in the application which he has made of it to our government.He regards the tenth amendment as altogether unnecessary,and tells us,in express terms,that the powers of the government would be exactly the same with or without it.This is a great and obvious mistake.The tenth amendment was wisely incorporated into the Constitution for the express purpose of denying to the government that unbounded discretion in the selection and use of its means,for which it contends.The power to make all laws necessary and proper for carrying into effect the granted powers is conferred on Congress alone;it is exclusively a legislative power.So far,therefore,as the government is concerned,it derives no power from this clause;and the same is true of its several departments.They have no discretion in the selection of any incidental means of executing their several trusts.
If they need the use of such means,they must apply to Congress to furnish them;and it is discretionary with that body whether to furnish them or not.All this is perfectly clear from the very language of the Constitution,and the propriety of such a provision must be apparent to every one.If power could be implied in favor of such a government as ours,it would,if nothing were add to the contrary,be implied in favor of every department and officer thereof,to the execution of whose duties it might seem to be necessary.This would be a wide extent of discretion,indeed;so wide,that it would render all the limitations of the Constitution nugatory and useless.It is precisely this result which was intended to be prevented by the clause in question.The States were unwilling to entrust such a discretion either to the government,or to the several departments or officers thereof.They were willing to confer it on Congress alone;on the legislative department,the more immediate representatives of the States and their people,who would be most apt to discharge the trust properly,because they had the least temptation to abuse it.It is not true,then,as our author supposes,or,at least,it is not true of our system,that "every power in the government is,in its nature,sovereign,and includes,by force of the term,a right to employ all the means requisite,and fairly applicable to the attainment of the ends of such power,unless they are excepted in the Constitution,or forbidden by some consideration of public morals,or by their unsuitableness to the proper objects of government."
In our government,the means are at the disposal of one department only,which may either grant or withhold them at its pleasure.
