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 A Century of Federal Judicature-

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citizenship of the States were two different ited with having stayed, in this conspicuous things. In the amendments those who are instance, the tendency toward centralization, citizens of the States are pointed out, but the he was, nevertheless, a strong Federalist in privileges and immunities of such citizenship his constitutional views; he believed in giving are neither defined nor protected The only full scope to the political powers of the na rights which are protected from the encroach tional government. The most powerful state ments of State legislatures are the privileges ment of his general views will be found in his of the citizen of the United States, and these dissenting opinion in the Legal Tender Cas? are such as belong to the citizens of every of Hepburn v. Grisvvold, 8 Wall. 603. His national government. But the rights of trade argument in favor of this exercise of and commerce within a State are not among power by Congress was, briefly, as follows: The implied or auxiliary powers conferred them. There can be no doubt that this judgment upon Congress are founded largely upon the has exercised vast influence. Had these general provision which closed the enumera amendments been given the scope which tion of powers granted in express terms, many contended for, a marked tendency namely, that Congress shall have power also toward centralization would almost inevitably to make all laws necessary and proper to have resulted. Justice Miller's opinion has carry into execution the enumerated powers. been criticised upon other grounds, which will Although the Constitution prohibits any State be examined hereafter; but its author always from coining money, emitting bills of credit or making anything save gold and silver coin regarded it with pride. "Although this de cision," he said, some years later, "did not a legal tender, yet no such prohibition was meet the approval of four out of nine of the placed upon the power of Congress in rela judges on some points on which it rested, yet tion to this subject; on the contrary, Con public sentiment, as found in the press and gress was expressly authorized to coin money in the universal acquiescence which it re and to regulate the value thereof. The "neces ceived, accepted it with great unanimity, and sity" need not be absolute, nor the adapta although there were intimations that in the tion of the means to the end unquestioned. legislative branches of the government the The power to declare war, to suppress insur rection, to raise and support armies, to bor opinion would be reviewed, and criticised un row money on the credit of the United States, favorably, no such thing has occurred. . . . And while the question of the construction of to pay the debts of the Union, and to provide for the common defence and general welfare, these amendments, and particularly the four teenth, has often been before the Supreme are all express powers, and the operation of Court of the United States, no attempt to the legal tender acts in the execution of these overrule or disregard this elementary decision powers left no doubt that the means adopted of the effect of the three new constitutional in the emergency bore to the necessity a amendments to the Federal Government has proper constitutional relation. Moreover, been made. . . . The necessity of the great when there is a choice of means, the selection powers conceded by the Constitution origin rests with Congress, not with the court; ally to the Federal Government, and the equal hence if the act of Congress was in any sense necessity of the autonomy of the States, and essential to the execution of an acknowl their power to regulate their domestic affairs, edged power, the degree thereof was for the remain as the great features of our complex Legislature, not for the court, to determine. form of government." The extent of the national powers was fur Although Justice Miller may thus be cred ther discussed in the case of Ex parte Yar