CHAPTER X

THE LAW OF LIMITATIONS

134. The government of the United States, as also that of each State, is a government of limited powers. In our day we speak of either government as one of _limitations_; in the eighteenth century the equivalent expression was “checks and balances.”[352] Fundamentally, American constitutional law is the law of constitutional limitations. These limitations confront us at whatever point we consider American law and government. Sovereignty,—the people of the United States, or the people of a State,—has never delegated all its powers to government, and never any of them without limitations.[353] Written constitutions are limitations of delegated powers. But powers delegated to what we commonly call a department,—as the legislative, the executive, or the judicial,—are sufficient for the necessary and proper performance of the functions (or as constitutional law would say, “execution of the office”) of the department. This concept of the nature of the grant of powers is fundamental; on no other concept of power can government in America be operated.

It remains then to know the scope and character of these checks and balances,—these limitations,—which, however obscure, distinguish constitutional law and government in America. In the federal system, the government of the United States is balanced against that of the States, the office, or function of the one, operating as a limitation on the office or function of the other. This, unquestionably, is the essential, or principal limitation in the American civil system. It discloses itself in the frequent question whether a public service shall be done by the United States or by the State,—touching such matters as public health, public safety, public morals, commerce, labor, and others. Here there always is the question of authority, whether it is State or federal, and, if any, to what extent? And if there is limitation, is it of State authority by federal, or of federal authority by State,—or, is it of both by fundamental limitations?

Passing the mutual limitation of the two governments, we come to limitations of each, and these limitations are similar. Powers of the Senate counterbalance powers of the House; powers of the Legislative counterbalance those of the Executive; powers of the Judicial counterbalance powers of the Executive and the Legislative. If the President nominates, the Senate may refuse to conform; if he negotiates a treaty, the Senate may refuse to ratify it. If President or federal Judge fails to execute his office, the House may impeach, and the Senate convict of “high crimes and misdemeanors.” If members of Senate or House fail to satisfy their constituents, these may elect other men as their successors. No office in the American system of government is for life, though it may be for good behavior. Lincoln states the whole case:

By the frame of government under which we live, this same people have wisely given their public servants but little power for mischief; and have, with equal wisdom, provided for the return of that little into their own hands at very short intervals. While the people retain their virtue and vigilance, no administration by any extreme of wickedness or folly, can very seriously injure the government in the short space of four years.[354]

135. Of checks on the Executive there are three: concerning his election; concerning his powers, or office, and concerning his removal from office. He is elected by a few persons, technically called “electors.”[355] Each State appointing as its Legislature may direct as many “electors” as the whole number of its Senators and Representatives to which it is entitled in Congress. Popular election of these “electors” is, in constitutional law, their appointment by the State legislatures. The so-called popular vote is unknown to the Constitution.[356]

The method of deciding disputed presidential elections, provided in the Constitution, was modified by adoption of the Twelfth Amendment in 1804. The Amendment means that if the decision is not made by the presidential electors by a certain time, the election shall go to the House of Representatives, in case of the President; and to the Senate, in case of the Vice-President. The vote in the House is by States; the Senators represent States. Thus the States, at a critical time, become the check on the United States in the selection of President and Vice-President.

That the President (and by implication, the Vice-President) must be native-born American citizens is a constitutional limitation of candidacy.

136. Of limitation of executive powers, the exception of the pardoning power in cases of impeachment, and of command of the State militia save when called into the actual service of the United States[357] are specified,—or, as commonly stated in legal language,—“expressed,” not “implied.” So too is the limitation of the President’s appointing power during recess of the Senate,—the appointee’s commission expiring “at the end of the next session.”[358] What limitations of executive power are implied in the Constitution is largely a matter of political interpretation. The practical question here is of confusion of functions, or offices. Thus the Executive may not exercise legislative or judicial functions. This conforms to the theory of separation of governmental functions expressed or implied in every American constitution.

Yet Congress may impose duties upon the President which are essentially legislative, as, for example, by empowering him to suspend, by proclamation, the collection of duties on articles from a nation which, by reciprocity, has suspended collection of duties on certain imports from the United States. Does the President in such a case transcend executive office?

The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be,—and conferring authority, or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.[359]

A very large proportion of the bills presented to Congress originate in the executive department. But Judge Ranney’s distinction (stated above) expresses the essential difference: it is Congress that determines what the law shall be. The bill, or measure, proposed, may come from a private citizen, or a State Legislature, or a railroad directorate, or the War Department, or a Committee of the House, or from some other source: it is Congress alone that can make it law. There is, however, a powerful check on the Executive as suggesting legislation: the check of public opinion, of custom, of precedent. These and like checks are sometimes called the limitations of the unwritten constitution.

137. The third check on the Executive is of removal from office for cause, by impeachment, in which procedure the House, the Senate, and the Chief Justice of the United States have definite offices.[360] Practically this check is utilized on political grounds; therefore it cannot be measured strictly as a process in law, although it is under a procedure distinctively in constitutional law. The check on the election of the Executive is essentially political, but that on the pardoning power, and on the command of the State militia is not political: yet all these checks, or limitations, are constitutional.

138. The constitutional limitations of the power of Congress,—checks on federal legislative power,—include term of service, qualifications for office, and authority in legislation. The large limitation is of term of service: six years for Senators; two years for Representatives. The people of the United States delegate legislative powers to Congress for a limited time. In an absolute monarchy there is no legislative, nor is there a time limit on the monarch as law-maker. Lincoln touched the vital spot when he said that the people have given their public servants but little power for mischief, having provided for the return into their own hands at very short intervals what little power they have delegated. Were Congress a corporation, with perpetual charter, and filling vacancies in its membership, it would, for practical purposes, exercise the office of sovereignty and would exercise power without limitation. The delegation of legislative power by the people of the United States is not to Senators or to Representatives, but to Congress, consisting of a Senate and a House of Representatives, and organized and proceeding according to the Constitution. The question in America is not alone, What will Congress do? but also, What can Congress do?

139. The expressed limitations of the power of Congress are that

(1) All duties, imposts, and excises shall be uniform throughout the United States.[361]

(2) No appropriations of money to raise and support armies shall be for a longer period than two years.[362]

(3) Militia officers must be appointed by the respective States.[363]

(4) No bill of attainder or _ex post facto_ law shall be passed.[364]

(5) No tax or duty shall be laid on exports from any State.[365]

(6) No discrimination shall be made as to ports of entry or the regulation of shipping.[366]

(7) No title of nobility shall be granted by the United States.[367]

(8) Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.[368]

(9) Revenue bills shall originate in the House of Representatives.[369]

(10) No Senator or Representative, during the time for which he is elected, can be appointed to any civil office under the United States, which shall have been created, or the emoluments of which shall have been increased during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office.[370]

(11) No act of Congress concerning treason can provide for conviction “unless on the testimony of two witnesses to the same overt act, or on confession in open court.”[371]

(12) A bill of attainder of treason is not a bill of attainder, but no bill of attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained.[372]

(13) A new State cannot be erected within the jurisdiction of another State, or be formed by the junction of two or more States, or parts of States, without consent of their respective legislatures.[373]

(14) The power of Congress to make rules and regulations respecting the territory or other property belonging to the United States cannot be exercised so as to prejudice the claims of any particular State.[374]

140. While the limitations thus far cited are specific and expressed, they go less to the fundamentals of government and civil rights than do other limitations expressed in the Constitution, and notably in the Amendments.[375]

It is not unusual that a State constitution declares that to guard against transgressions of the high powers of government delegated by the people through them, everything in the article, commonly known as the Bill of Rights, is excepted out of the general powers of government, and shall forever remain inviolate. The first ten Amendments of the Constitution are its Bill of Rights, and are a limitation not only of legislative powers but also of executive powers vested in the President, and of judicial powers vested in the Supreme and inferior courts of the United States.[376]

As respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging freedom of speech or the press, or the right of the people peaceably to assemble and to petition to government for a redress of grievances, Congress can make no law whatever.[377]

Nor can Congress infringe the right of the people to keep and bear arms, or violate their right to be secure in their persons, houses, papers, and effects, or pass any law holding a person to answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in the actual service of the United States in time of war, or public danger; or pass any law compelling any person to be subject for the same offence twice to be put in jeopardy of life or limb, or be compelled in any criminal case to be a witness against himself, or be deprived of life, liberty, or property, without due process of law; or pass any law taking private property for public use without just compensation.[378]

The practical effect of the limitations expressed in the Fifth Amendment can be known only by judicial interpretation, and decision of cases instituted under it; no theoretical definition can anticipate these decisions of the Supreme Court. The principle involved is the protection of certain fundamental rights of the people. In a similar manner do the Sixth, Seventh, and Eighth Amendments guard fundamental rights and limit the legislative power delegated to Congress by the people of the United States. This means that Congress has no power to deny or to disparage rights enumerated in these Amendments which are, as a group, enumerative of rights at common law. Nor are the rights enumerated, or set forth, in the Constitution as (practically) excepted out of the powers of government, and forever inviolate, the only rights which Congress, in exercising its powers, is inhibited from violating. Other and unmentioned rights of the people are distinctly implied,[379] as retained by them, and the Tenth Amendment is a general limitation of Congress, President, and Courts, for it declares that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[380]

141. The line of demarcation between powers delegated and powers reserved has always been, and doubtless always will be, in dispute. The question involved is political as well as constitutional. The abolition of slavery by the Thirteenth Amendment excludes pro-slavery legislation of any kind affecting the United States or any place subject to its jurisdiction. In like manner the Fourteenth Amendment forbids Congress, or any State, to assume or pay any debt, or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave. All these limitations of legislative power are practical guides and measurements by which the judicial power,—the law courts,—can determine what the law is, whether the act of Congress conflicts with the Constitution. It is largely through these expressed limitations that the judiciary becomes a check on the legislative.[381]

142. The limitations of the powers of the States are numerous and specific. As to limitations of State power (_i. e._, the power of the State government, executive, legislative, judicial, administrative), within State jurisdiction, the several State constitutions alone are authoritative and final.[382] The Union is an indestructible Union of indestructible States, yet the States composing the Union are under limitations as members of that Union. Except as to the places of choosing senators, Congress may at any time prescribe the times, places, and manner of holding elections of senators and representatives.[383]

Congress has exclusive jurisdiction over the District of Columbia, and over places purchased from any State, and over federal property.[384]

But the Constitution enumerates limitations of the States, each of which eliminates sovereignty from the State and all together, with some other limitations, reduce a State to what Hamilton, in _The Federalist_ calls “residuary sovereignty.”[385]

No State shall enter into any treaty, alliance, or confederation; grant letters of marque or reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, _ex post facto_, law, or law impairing the obligation of contracts, or grant any title of nobility.[386]

These limitations are of power usually classed as sovereign. Of similar scope are the limitations, prescribed by the Constitution, of State power of taxation,—that is, of laying imposts or duties; of keeping troops or ships of war; of entering into any agreement with another State, or with a foreign power; of engaging in war, unless actually invaded, or in imminent danger of invasion, not admitting of delay. None of these powers can a State in the Union exercise without the consent of Congress.[387]

143. When called into the actual service of the United States, the State militia are under the control of the President,—a limitation of the power of the State executives.[388] The Supreme Court of the United States has original jurisdiction in all cases in which a State is a party,[389] except in cases commenced or prosecuted against a State by citizens of another State, or by citizens or subjects of any foreign State, in which cases the judicial power of the United States has no jurisdiction whatever.[390] Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted shall exist in a State.[391] No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; or deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.[392] Denial of the right to vote by a State to electors qualified as electors by the Constitution of the United States shall work a proportional loss in the basis of representation in Congress from that State. No State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave.[393] A little reflection will lead one to the conclusion that these limitations on the States, provided in the Constitution of the United States, are essential to the existence of the Union.

144. On the other hand, the States are recognized as checks and balances, as limitations on the United States, by the Constitution:

(1) Representatives are apportioned among the several States, but each State shall have at least one Representative,[394] and no State can be deprived of its equal suffrage in the Senate without its own consent.[395]

(2) The State executive alone has authority to issue writs of election to fill vacancies in the representation of a State.[396]

(3) Each State appoints presidential electors equal to the whole number of Senators and Representatives to which it is entitled in Congress.[397]

(4) In case of a disputed election of President or Vice-President, the Vice-President is chosen by the Senate,—the President, by the House of Representatives, the vote in the House being by States, each State having one vote, a quorum for this purpose consisting of a member or members, from two thirds of the States, and a majority of all the States being necessary to a choice.[398]

(5) The States, as represented in the Senate, have power to confirm or to reject (two thirds of the senators present concurring) treaties and nominations to office submitted to it by the President.[399]

(6) No State can be divided, nor can a new State be erected within a State without its own consent.[400]

(7) Each State is guaranteed a republican form of government by the United States, and protection against invasion, and (on application of its Legislature, or of its Executive) against domestic violence.[401]

(8) The Legislatures of two thirds of the States may call a convention for amending the Constitution; but no amendment becomes part of the Constitution until ratified by the Legislatures of three fourths of the States, or by Conventions in three fourths of them, as the one or the other mode may be proposed by Congress.[402] In this procedure of amending the Constitution, the several States are equal. A proposed amendment may be ratified and become part of the Constitution by the approval of three fourths of the States irrespective of their respective area, population, wealth, or any other mark or quality.[403] Finally, both as conferring benefits, and as prescribing the fundamental limitations on the States and on the United States, the Constitution and the laws and treaties made in pursuance thereof comprise “the supreme law of the land,” and all officials “both of the United States and of the several States shall be bound by oath or affirmation to support it, anything in the constitution or laws of any State to the contrary notwithstanding.”[404]

The character of this supremacy of the “law of the land” is indicated in the Constitution itself: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[405] The fundamental character of the limitations which this provision establishes is seen as it affects the common interests of life. These interests include domestic relations, ordinary business transactions, recognized by common law; the ownership, acquisition, administration, and distribution of estates; peace and good order within the State; schools and education; the erection and care of public highways; personal liberty, freedom of worship, freedom of speech and of the press. These and cognate interests are within the scope and power of the State, and not, unless control over them is specially delegated, within the scope and power of the United States.

In truth, excepting in the election of United States Senators, members of the House of Representatives, and Presidential Electors, the citizen does not participate in federal government; and save through the post office, the customs, the income tax (which directly affects fewer than half a million persons in the United States), and in banking (including the use of the money of the country) the citizen rarely has anything to do with the United States. On the other hand, in the protection of his property, the education of his family, the right of use of highways, the validation of contracts, the rights, privileges and use of multitudinous relations safeguarded by the common law and the statute, it is the State, not the United States, which has first place, and, consequently, constitutional priority.

The exact line of division between State and federal powers is not known. The principle which rules in every attempt to fix this line is that the enumeration of rights and powers in a constitution,—State or federal,—“shall not be construed to deny or disparage others retained by the people”[406] of the State or of the United States.

145. The essential doctrine, here, is set forth by the Supreme Court in a decision which gives almost unlimited power to Congress in certain cases (its power over a Territory, or possession of the United States):

There are certain principles of natural justice inherent in the Anglo-Saxon character which need no expression in constitutions or statutes to give them effect, or to secure dependencies against legislation manifestly hostile to their real interests.... The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are in this, as in many other instances,—as that for example, of declaring war,—the sole restraints on which they have relied to secure them from its abuse. They are the _restraints on which the people must often solely rely in all representative government_.[407]

The limitation of powers delegated by the people of the United States, in the federal Constitution, or of a State, in its constitution, implies a delegation of powers adequate to performance of legitimate civil functions. The large question involved in every case of a constitutional nature, or constitutional construction, is whether in the discharge of a function, or an office, the government, or any department of it is transcending its delegated powers. This question is of the essence of constitutional law and judicial interpretation.

146. The people interpret their will in their election of executive, legislative, or judiciary, and the elective system prevails for all three in most of the States.[408] The courts interpret the laws in course of performance of their judicial duties, and their interpretation conforms to principles of justice. Thus in addition to the popular restraint, through frequent elections,—there is judicial restraint, or limitation of legislative and executive (but strictly ministerial) powers.[409] The entire case, as to the relation of the judiciary to the legislative, is covered by the rule laid down by the Supreme Court: “It is emphatically the province and duty of the judicial department to say what the law is.”[410] This duty is of State judges as well as federal, for all American judges are alike bound by oath to support the Constitution.[411] Any American judge has jurisdiction to pronounce as to the constitutionality of an act of Congress or of a State legislature. The essential fact necessary in such pronouncement is that the validity of the law is vital to the real interests of a party to the case or controversy before the court. The decision of the court is not an _obiter dictum_, a mere philosophical opinion, so-called, of the judges, individually, or collectively, based on an interpretation of justice. The constitutionality of the law in question must be an essential part of the issue before the court.

Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another there is presented a question involving the validity of any act of any Legislature, State or federal, and the decision necessarily rests on the competency of the Legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act is constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that by means of a friendly suit, a party beaten in the Legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.[412]

The principle of constitutional interpretation is given by Chief Justice Marshall:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.[413]

And he develops the principle further:

But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake (in courts of law) to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.[414]

147. The American constitutions are expressed and implied, limitations of governmental powers, though popularly considered as grants of such powers. “The truth is,” wrote Hamilton in _The Federalist_, “the Constitution is itself, in every rational sense, and to every useful purpose, a Bill of Rights.” It is “the Bill of Rights of the Union.” It declares and specifies “the political privileges of the citizens in the structure and administration of the government.” It “defines certain immunities and modes of proceeding which are relative to personal and private concerns.” It comprehends “various precautions for the public security which are not to be found in any of the State constitutions.”[415] James Wilson agreed with Hamilton that the Constitution is itself a Bill of Rights, remarking, in reply to the objection that the Constitution as it left the hands of its framers and went to the country had no Bill of Rights:

A Bill of Rights would have been improperly annexed to the federal plan (_i. e._, the Constitution, 1787), and for this plain reason that it would imply that whatever is not expressed was given, which is not the principle of the proposed Constitution.[416]

As constitutions are the most solemn form of limitations of governmental powers, their interpretation determines the whole character of the government. The principle of constitutional interpretation is that

words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its founders.[417]

The effect of the judicial pronouncement of the unconstitutionality of a law is to make it “in legal contemplation, as inoperative as if it had never been passed.”[418]

148. To whatsoever extent State or federal officials perform ministerial functions they are answerable to the judiciary for their acts. Ministerial officers comprise the vast body of appointees in the States and in the United States. They are not executive officers, for such perform functions distinctively outside judicial investigation, but as distinctively within the political powers of the legislature. The judiciary is a powerful limitation of ministerial powers, in the sense that the performance of those powers is examinable in courts of law.[419]

In the popular mind the veto power may seem to be the principal executive check on legislation. This conviction takes form in State constitutions[420] which authorize the Governor to veto any item in an appropriation bill, or to cut the item down.

One result of this popular conviction is acquiescence in exercise of executive power which, in former times would have been interpreted by the people as “executive usurpation.” At present the people rely upon their executives,—Governors, Presidents,—to act as a check,—a limitation,—on unwise legislation. This reliance, or expectation, is a powerful element in practical politics. Thus the limitations of government in America are threefold: first, the American constitutions themselves; secondly, frequent popular elections, and thirdly, the judiciary in its interpretation of constitutions and laws. These limitations are constitutional limitations. There is a fourth limitation but it belongs to another sphere,—the sphere of politics.[421]