As to him,if it deprived him of any more of his rights and powers,than his own words prove that he intended to relinquish.It is evident that this remark of the author proceeds upon the leading idea,that the people of the United States are the only party to the contract;an idea which,we have already seen,can by no means be justified or allowed.The States are parties;each agreeing with each,and all the rest,that it will exercise,through a common agent,precisely so much of its sovereign rights and powers,as will,in its own opinion,be beneficial to itself when so exercised.
The grant "inures to the sole and exclusive benefit of the grantor";and who but the grantor himself shall determine what benefit he had in view,and how far the grant shall extend,in order to secure it?This he has done,in the case before us,by the very terms of the grant.If you hold him bound by anything beyond those terms,you enable others to decide this matter for him,and may thus virtually abrogate his contract,and substitute another in its place.
I certainly do not mean to say,that in construing the Constitution,we should at all times confine ourselves to its strict letter.This would,indeed,be sticking in the bark,to the worst possible purpose.Many powers are granted by that instrument,which are not included within its express terms,literally taken,but which are,nevertheless,within their obvious meaning.The strict construction for which I contend,applies to the intention of the framers of the Constitution;and this may or may not require a strict construction of their words.There is no fair analogy as to this matter between the Federal Constitution and those of the States,although the author broadly asserts that they are not "distinguishable in this respect";
and this will sufficiently appear from the following considerations:
1.The entire sovereignty of each State is in the people thereof.When they form for themselves a constitution of government,they part with no portion of their sovereignty,but merely determine what portion thereof shall lie dormant,what portion they will exercise,and in what modes and by what agencies they will exercise it.There is but one party to such a government,to wit,the people of the State.Whatever power their government may possess,it is still the power of the people;and their sovereignty remains the same.So far,therefore,there is "no solid objection to implied powers"in a State constitution;because,by employing power in the government,you take no power from those who made the government.
2.As government is the agent and representative of the sovereign power of the people,the presumption is,that they intend to make it the agent and representative of all their power.In every frame of limited government,the people deny to themselves the exercise of some portion of their rights and powers,but the larger portion never lies thus dormant.In this case,therefore,(viz.:of a government established by an aggregate people),the question naturally is,not what powers are granted,but what are denied;
and the rule of strict construction,if applied at all,should be applied only to the powers denied.This would have the effect of enlarging the powers of government,by limiting the restraints imposed on it.
3.As it is fair to presume that a people absolutely sovereign,and having an unlimited right to govern themselves as they please,would not deny to themselves the exercise of any power necessary to their prosperity and happiness,we should admit all fair and reasonable implications in favor of the government,because,otherwise,some power necessary to the public weal,might be dormant and useless.
In these respects,there is no just analogy between the State constitutions and that of the United States.
In the first place,the Constitution of the United States is not a frame of government to which there is but one party.The States are parties,each stipulating and agreeing with each and all the rest.Their agreement is,that a certain portion of that power which each is authorized to exercise within its own limits shall be exercised by their common agent,within the limits of all of them.This is not the separate power of each,but the joint power of all.In proportion,therefore,as you increase the powers of the Federal Government,you necessarily detract from the separate powers of the States.We are not to presume that a sovereign people mean to surrender any of their powers;still less should we presume that they mean to surrender them,to be exerted over themselves by a different sovereignty.In this respect,then,every reasonable implication is against the Federal Government.
In the second place,the Constitution of the United States is not the primary social relation of those who formed it.The State governments were already organized,and were adequate to all the purposes of their municipal concerns.The Federal Government was established only for such purposes as the State government could not answer,to wit:the common purposes of all the States.Whether,therefore,the powers of that government be greater or less,the whole power of the States,(or so much thereof as they design to exercise at all),is represented,either in the Federal Government or in their own.In this respect,therefore,there is no necessity to imply power in the Federal Government.
In the third place,whatever power the States have not delegated to the Federal Government,they have reserved to themselves.Every useful faculty of government is found either in the one or the other.Whatever the Federal Government cannot do for all the States,each State can do for itself,subject only to the restraints of its own constitution.No power,therefore,is dormant and useless,except so far only as the States voluntarily decline to exert it.In this respect,also,there is no necessity to imply power in the Federal Government.
