Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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CONGRESS

I.276.1

CONGRESS, Powers of, (IN U. S. HISTORY). Many of the powers given to congress by the constitution, such as the power to provide and maintain a navy, fall necessarily outside of the limits of party and political discussion. But there are others, such as the power to regulate commerce, which constantly provoke party contest: and on these the law, so far as it has been settled by the courts, is given below (see CONSTRUCTION, III.), the principles being necessarily given in very general terms. I. As a preliminary it must be laid down that the powers of congress are enumerated, not defined, in the constitution; that those powers were granted, not by the states, but by the people; that any power not enumerated among those granted to congress or prohibited to the states is reserved to the states or to the people; but that, in the exercise of the powers which have been delegated to congress, its powers are plenary, absolute and unlimited, and it is "as omnipotent as any other supreme legislative body within its own sphere." (See 4 Wheat., 316; 9 Wheat., 1; 27 N. Y., 400; 12 Wheat., 419; 1 Wheat., 304; 12 Wall, 457.) The manner and extent of the exercise of its powers are questions of party contest, not of constitutional law.

I.276.2

—II. Congress has power (under Art. I., § 8, ¶ 1) to lay taxes to any extent, and in its discretion: except that 1, direct and capitation taxes shall be apportioned; 2, that duties, imposts and excises shall be uniform throughout the United States; and 3, that no duties shall be imposed upon articles exported from any state. If the taxes are oppressive, congress is responsible not to the courts but to the people. But as the federal and state governments are never to interfere with one another, congress can not tax state officials, state institutions, or the agencies employed by state executives, legislatives or judiciaries in the proper performance of their duties. (See 7 How., 283; 7 Wall., 433; 5 Wheat., 317; 15 Wall., 112; 8 Wall., 533; 22 Ind., 276; 11 Wall., 113; 1 Bush, 239; 17 Wall., 322)

I.276.3

—III. Congress has power (under ¶ 2) to borrow money on the credit of the United States, and implied in this is the power to issue securities or evidences of debt, such as treasury notes. To increase the credit of the United States congress may make such evidences of debt a legal tender for debts, public or private, and may restrain the circulation as money of any notes not issued by itself. (See 27 N. Y., 400; 8 Wall., 533; 39 Barb, 427; 2 Duval, 20; 22 Ind., 282.)

I.276.4

—IV. Congress has power (under ¶ 3) to regulate commerce, including in the word commerce every variety of intercourse for purposes of trade, by land or water, external or internal, the carrying of passengers or of freight, the ships, seamen and officers, railroads and telegraphs, and the individuals or corporations owning them. (See 9 Wheat., 1; 17 Johns., 488; 4 Johns. Ch., 150; 7 How., 283; 91 U. S., 275; 4 Denio, 469; 15 Wall., 232; 31 N. J., 531; 8 Wall., 168; 8 Cal., 363; 12 How., 299; 2 Story, 455; 10 Wall., 557.) The term includes also the control and improvement of navigable rivers, salt or fresh, employed in foreign or inter-state commerce. (See 4 Wash. C. C., 371; 3 Wall., 713; 10 Wall., 537, 1 Brown, 193; 20 Wall., 430; 93 U. S., 4.) But it does not include the inter-course of citizens within the limits of a single state, which remains under state control, so long as it does not affect general commerce. (See 20 How., 84; 9 Wheat., 1; 19 Wall., 581; 61 Mass., 53; 28 Ind., 237; Newb., 241, 256; 23 N. J., 206, 4 McLean, 286) Nor does it prohibit the exercise of police power by the states, when not aimed at the regulation of commerce. (See 11 Pet., 102; 6 Cow., 169; 16 Grat., 139: 18 How., 71; 4 Wash. C. C., 371; 6 McLean, 237) In the exercise of its discretion congress may so regulate commerce as shall best conduce to the general interests of the country. (See 2 Am. L. J., 235; 9 How., 560; 10 Wall., 557; 1 Brown, 193). What regulations it shall make is a question of party contest, not of constitutional law.

I.276.5

—V. Congress has power (under ¶ 4) to establish a uniform rule of naturalization, and uniform bankruptcy laws throughout the United States. The former power is, not to naturalize, but to lay down a uniform rule by which the states shall naturalize. (See 19 How., 393; 5 Cal., 300; 50 N. H., 245.) The latter power, when exercised, supersedes and suspends all state insolvent laws. (See 4 Wheat., 122; 2 Ired., 463. See also, 12 Wheat., 213, and Webster's argument, 6 Webster's Works, 24)

I.276.6

—VI. Congress has power (under ¶ 5) to coin money, and by this is plainly meant metallic money. (See 27 N. Y., 400; 39 Barb., 427; 2 Duval, 20.) But this does not exclude the war power of congress to make treasury notes a legal tender. (See 12 Wall., 437; 22 Ind., 282; 27 N. Y., 400; 13 Wall., 604; 15 Wall., 195; and authorities under WAR POWER.)

I.276.7

—VII. Congress has power (under ¶ 11) to declare war and to prosecute it by all the legitimate methods known to international law. It may suppress rebellion, confiscate the property of public enemies, foreign or domestic, may emancipate their slaves, may prohibit intercourse with them, and (see cases last above cited) may make treasury notes legal tender. (See 7 Wall., 700; 2 Black., 635; 11 Wall., 268, 331; 1 Blatch. Pr, 119; 2 Sprague, 123; 63 N. C., 131; 25 Ark., 625.) It may acquire territory, by conquest or treaty. (See 1 Pet, 511; 9 How., 603.) For the further power, as a result of civil war, to reconstruct rebellious states, see under XII.

I.276.8

—VIII. Congress has power (under ¶ 12) to raise armies, and this includes the power to do so by draft or conscription, as well as by volunteering. (See 23 Wis., 423; 45 Penn, 238; 3 Grant, 465; 32 Conn., 118; 45 N. H., 544.) When congress (under ¶¶ 15 and 16) proceeds to call forth and organize the militia, it is no longer state but national militia. (See cases last cited, and 5 Wheat., 1; 80 Mass., 548; 27 N. Y., 400; 7 Wall., 700.)

I.276.9

—IX. Congress has power (under ¶ 18) to make all laws which shall be necessary and proper for carrying its powers into execution. This carries permission for congress to legislate on the vast mass of incidental powers implied in the constitution. (See 4 Wheat., 316; 2 A. K. Matsh., 75; 9 How., 560; 2 Cranch. 358.) But it does not operate to limit or restrain the powers of congress; any law which is either indispensably necessary, very necessary, or simply necessary, may be passed under it. (See cases last eited, and 12 Wall., 457; 27 N. Y., 400; 16 Pet., 539, 16 Barb., 268; 10 Wheat., 51.) The governing principle is that assigned in McCulloch vs. State (4 Wheat., 316), that a government which has a right to do an act, and has imposed upon it the duty of performing that act, must, according to the dictates of reason, be allowed to select that means which seems to it necessary and proper. (See also BANK CONTROVERSIES, II)

I.276.10

—X. Congress alone, not the president or any of his subordinates, has the power (under § 9, ¶ 2) to suspend the privilege of the writ of habeas corpus. (See 21 Ind, 370: 16 Wis., 359; 1 Deady, 233; 1 Abb. C. C., 212; Taney, 246; 3 Mart., 531.) But congress, by statute, may authorize the president to suspend the writ. (See cases last cited: 17 Wis., 681; and authorities under HABEAS CORPUS.)

I.276.11

—XI. Congress has power (under Art. IV., § 3) to govern the territories, either by forming a territorial government, or directly by its own laws. (See 19 How., 393; 14 Pet., 526; 6 McLean, 517; 11 Mart., 309; 1 Pet., 511; 6 Cranch, 332; 1 Oregon, 418.)

I.276.12

—XII. Congress has power (under § 4) to prescribe the terms on which a rebellious state shall be again recognized as a member of the Union, and when such a state has accepted the terms, and been recognized by congress, it is forever estopped to deny their validity. (See 7 Wall., 700; 7 How., 1; 39 Geo., 285, 425; 43 Ala., 469; 41 Mo., 63; 13 Wall., 646, 39 Geo., 306; 16 Wall., 46)

I.276.13

—XIII. Congress has power (under Amendment XIV.) to interfere to prevent any denial of equal rights to all citizens which springs from state laws, or from the general conflict between the white and black races, but not to punish or prevent those crimes which spring from the ordinary felonious or criminal intent of individuals. (See 1 Woods, 308; 92 U. S., 542; 16 Wall., 63; 100 U. S., 265, 310, 345, 385.) XIV. Congress has power (under Amendment XV.) to prevent the states from withholding the franchise on account of race, color, or previous condition of servitude, but not to prevent the states from withholding it for other reasons. (See cases last cited, and 7 Kans., 50; 3 Oregon, 568; 92 U. S., 214; 43 Cal., 43; 14 A. L. Reg., 105, 238; 95 U. S., 470.)

I.276.14

—See, in general, Bump's Constitutional Decisions, and the copious notes of decisions on the separate sections of the constitution in Smith's Manual of the House of Representatives, taken from the Revised Statutes.

ALEXANDER JOHNSTON.

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