Page:Nature and Character of our Federal Government.djvu/124

 provisions of the Constitution, but also to the general nature and character of our institutions. Ours is a free government, which implies that it is also an equal government; it therefore authorizes the employment of no means for the execution of its powers, except such as are consistent with the spirit of liberty and equality. Ours is a confederated government; it therefore authorizes no means which are inconsistent with the distinct sovereignty of the States, the confederating powers. Ours is a government of "delegated" powers, limited and specifically enumerated; it therefore authorizes no means which involve, in the use of them, any distinct substantive power, not granted. This single rule, if fairly and honestly observed, will go far to remove many serious difficulties upon this point, and will deprive the federal government of many important powers which it has hitherto exercised, and which are still claimed for it, by our author, and the whole political school to which he belongs. The propriety, and, indeed, the absolute necessity of the rule, appear to me to be obvious. If powers not granted might be used as means of executing the granted powers, it is manifest that no power whatever could be considered as denied. It is not enough that there is no apparent unconstitutionality in the use of such means, in the particular case. If they involve a principle which will authorize the use of ungranted powers in any other case, they are forbidden by the Constitution. To illustrate this idea by an example. Congress has power to regulate commerce among the several States. This is supposed by some to give them power to open channels of commerce, by making roads, cutting canals, &c., through the territories of the States. But this is a substantive power in itself, not granted to the United States, but reserved to the States respectively, and therefore is not allowed as a means of regulating commerce among the States. Let us suppose, however, that the opening of roads and cutting of canals are the very best means of facilitating and regulating commerce among the States, and that there is nothing in the language of the Constitution to forbid it; we are still to enquire what farther powers would be necessarily implied, as incidents of this. We find that the power to open a road though a *State, implies the power to keep it in repair; to impose fines and penalties on those who