How the Convention Distributed Power. If we wish to understand our political system we must gain clear notions respecting the manner in which the framers distributed power to the State and federal governments. Let us suppose that the men of the Constitutional Convention of 1787 had at their disposal all the powers of a sovereign state, all the powers that it is possible for a government to exercise, and that they divided these powers between the new federal government and the existing State government in such a manner as they thought best. With this supposition in mind let us see what disposal they made of the great reservoir of governmental power which was at their command. And first let us learn what powers they gave exclusively to the federal government:

I. Powers Exclusively Federal. When granting a power exclusively to the federal government it had to be plain to the minds of the framers (1) that the States would be willing to surrender the power; (2) that the federal government needed the power; (3) that the power when exercised would affect all the States alike. Applying these tests to each grant of power, the framers gave the federal government absolute control in the following matters: war, peace, treaties, alliances, ambassadors, postal affairs, the army and navy, foreign commerce, interstate commerce, naturalization, coinage of money, Indian affairs, bankruptey, patents, copyrights, territories, letters of marque and reprisal.

II. Concurrent Powers. If the proposed federal government was to be strong and efficient it must be permitted to raise money by taxation and to borrow money; it must define the qualifications of those who were to vote for its officers and regulate the time and manner of holding the elections of its officers; it must have the support of the State militia in times of war. But it was not considered wise for the federal government to be given the exclusive power of collecting taxes and borrowing money and controlling its elections and militia. Hence it became necessary for the framers to grant certain powers to the federal government,

and at the same time reserve powers of the same kind for the State. Powers belonging to both governments are called concurrent. The concurrent powers established by the Convention relate to the following matters: taxation, public debt, citizenship, suffrage, elections, militia, eminent domain. III. Powers Prohibited to the Federal Government. While the framers planned for a federal government which should be capable of achieving its rightful purposes, they at the same time took care that it should not be an instrument of oppression. To safeguard the interests of the States they formally prohibited certain powers to the federal government. The powers which were denied to the federal government in the Convention are stated in Article I, Section 9, of the Constitution (p. 403). Other prohibitions are found in the first eight articles of the Amendments which were adopted in 1791 to allay the fears of those who thought the new government might exceed its powers. These eight amendments are the bill of rights of the Constitution. They restrain the federal government, but they do not restrain the State.

IV. Powers Prohibited to the State. The framers saw that certain limitations upon the power of the State would also be wholesome. Indeed in 1787 prohibitions upon the power of the State were more necessary than prohibitions upon the federal government, for the States were strong, and were disposed to disregard the authority of the central government. Accordingly, as a pledge of good faith on the part of the States a self-denying section (Article I, Section 10) was inserted in the Constitution.

It should be noticed that there are three prohibitions upon both State and federal governments: neither a State nor the United States can grant any title of nobility (71, 73), or pass an ex post facto law, or any bill of attainder 2 (65, 73).

1 An ex post facto law makes an act criminal which was not so when done, or increases the severity of the punishment of a previous act. 2A bill of attainder is a legislative act which inflicts punishment without judicial trial.

These are things that no popular government ought to do, and in the United States they cannot possibly be done by any existing governmental agency.

V. Powers Reserved to the State. After the framers had provided for the general powers of the federal government, and had made the needful prohibitions of power, we may think of them as having reserved to the States and to the people all the remaining powers of government, They did not formally make this reservation in the Convention, but it was understood that the powers not granted to the federal government or prohibited to the States remained to be exercised as the States or as the people of the United States might ordain. In order that there might be no mistake on this point an amendment (144) adopted in 1791 declared 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." The nature and extent of the powers reserved to the State will be the subject of the following chapter. At present it is enough to say that the framers were able to invest the federal government with supreme powers in reference to the great affairs of a nation and still leave the State supreme in most of the affairs which concern us in daily life.

Implied and Resulting Powers of the Federal Government. The powers of the federal government are accurately defined and enumerated in the Constitution (Article I, Section 8). Among these powers is one giving Congress the right to make all laws which are necessary and proper (63) for the execution of the enumerated powers. Under the authority of this right there have been exercised many implied powers, -powers which are not specifically mentioned in the Constitution, but which naturally arise from those which are specifically mentioned. For example, from the expressed power of regulating commerce (47) arise the implied powers of building lighthouses and improving harbors; from the expressed power of coining money (49) arises the implied

power of establishing mints. Hundreds of things done by the federal government are justified by the doctrine of implied powers.

The Constitution does not expressly grant to the federal government certain powers which the government of a sovereign nation ought to have. To meet this deficiency Alexander Hamilton brought forward his doctrine of resulting powers,-powers which result from the "whole mass of the power of government, and from the nature of political society rather than as a consequence of any especially enumerated power." According to Hamilton's views a new sovereign nation had been brought into being by the events of the Revolution and the adoption of the Constitution, and this nation, by the very fact of its existence, possessed all the powers a nation ought to have, whether all were mentioned in the Constitution or not. For example, he contended that if the United States should conquer a country, it would have sovereign jurisdiction in that country although the Constitution says nothing whatever about such jurisdiction. Hamilton was bitterly. opposed by Jefferson and others who believed in holding the federal government strictly to the terms of the Constitution; but the doctrine of resulting powers carried the day, and Jefferson was destined to give to it its most distinguished application when he purchased Louisiana without authority specifically expressed in the Constitution.

Limitations of the Federal Government. It must not be understood that under the guise of implied and resulting powers the federal government can do anything and everything, for it is in a true sense a government of limited powers. Jefferson and Hamilton were both right. We are bound by the words of the Constitution, as Jefferson contended, but, as Hamilton contended, the words "general welfare" (45) are broad enough to permit us to do anything which is consistent with the purposes for which the Constitution was adopted.

Chief Justice Marshall, who did as much as any man to mold and direct the policy of the federal government, once said:

"This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising and will probably continue to arise as long as our system shall exist. . . . The powers of this government are limited, and its powers are not to be transcended. But the sound construction of the Constitution must allow to the national legislature that discretion with reference to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in a manner most beneficial to the people. 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 are consistent with the letter and spirit of the Constitution, are constitutional.'' 1

How the Federal Constitution is Amended. The fathers, when providing for the betterment of the federal government, avoided the rigidity of the Articles of Confederation, under which an amendment could be adopted only with the consent of all the States, and established easier methods of amendment. The two processes by which the Constitution may be changed are:

(1) Congress may, by a two-thirds vote of both Houses, propose an amendment, and then submit it to the States for ratification (122); (2) two thirds of the States may join in ordering Congress to call a National Constitutional Convention for the purpose of considering a desired amendment. In either case the amendment must be ratified by three fourths of the States before it can become a part of the Constitution (123).

Although it is much easier to amend the Constitution now than it was under the Articles, still experience has proved that it is very difficult in ordinary times to secure an amend

1 McCulloch vs. Maryland.