Page:Harvard Law Review Volume 1.djvu/99

  of an express power, for example, to pass bankruptcy laws which necessarily and by its direct operation impairs the obligation of contracts, is inconsistent with the spirit of the Constitution.” Like arguments are drawn from the fifth amendment, prohibiting the taking of private property for public purposes without compensation, and the taking of property without due process of law. Indeed, this last provision is regarded as “a direct prohibition” of the legislation now in question; and so the reasoning, as regards this clause, is, that the legal-tender legislation is contrary not merely to the spirit of the Constitution, but to the letter of it.

This argument discriminates between laws made in pursuance of express powers and others. Why is this? If the argument is not good as regards express powers, which appears to be conceded, why should it be good as regards those that are implied or auxiliary? If the implied power be otherwise plain it is difficult to see why it should be treated any differently as regards the exercise of it, or its relation to the spirit of the Constitution, from any other power. As regards the existence of any alleged power, whether a main or auxiliary one, whether express, implied, constructive, inferential, or what not, the same questions are to be asked, viz.: Is it, upon the fair construction of the instrument, given? If it is given, how far, if at all, is it qualified? In the preference case, the Court saw no sufficient reason for denying the existence of an implied power on the ground of injustice in the exercise of it, as impairing the obligation of contracts or taking away private property without compensation or due process of law; although the direct and inevitable operation of the law was to deprive the debtor of the ability to pay a part of his debts, and so to deprive the creditor of his property. As regards the legal-tender law, it is not true, in any other sense than it was true in Fisher’s case, that there is the direct and inevitable injury spoken of by the Chief-Justice in Hepburn v. Griswold. If the notes are convertible and sufficiently secured, the legal-tender quality need not produce injury; that is the case to-day with our legal-tender notes; there is no direct and inevitable injury.

Ⅳ.Leaving now the special consideration of arguments against the power in question, it is time to give, affirmatively, the reasons