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“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."
Regarding all the powers given to the national government it is to be said that the Constitution, like any other document, prima facie is to be understood as having in mind normal life and not abnormal life — for normal life is, so to speak, its atmosphere and context. As peace and not war is normal, the Constitution, in the absence of clear words to the contrary, by its express language creating express powers is understood to intend to create only the powers requisite for times of peace. Conversely, limitations expressly imposed are to be understood prima facie as dealing with times of peace
and not of war. Yet the prima facie meaning may be so enlarged as to cover the abnormal circumstance of war, in case such construction be reasonable and be not expressly forbidden.
It cannot be denied that both powers and limitations are created by implication. For example, it is by implication that we learn the existence of the national power to charter a corporation, and to take land in a State by eminent domain; 6 and it is by implication that we learn the national inability to tax an official salary paid by one of the States.?
If the federal government has an incidental power to secure by eminent domain the performance of some of the functions for which it exists, is it not obvious that it has an incidental power to preserve its own existence, and that this power is at least as applicable in time of war as in time of peace? When the preamble to the Constitution says that
“We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America," does it not indicate argumentatively, even without the aid of express provision in the Constitution, that the United States may preserve its own existence by force?
5 McCulloch v. Maryland, 4 Wheat. 316 (1819).
One is aided in answering such questions by remembering the doctrine regarding paper money. Notwithstanding the absence of express constitutional provision that the national government may issue legal tender paper, the national government through Act of Congress may issue such paper either as an incident of maintaining the government's existence in time of war or as an incident of sovereign power belonging to all governments to which it is not expressly denied.
A fortiori it would have to be held that the national government may preserve its existence by war. Yet it is unnecessary to rely on implication regarding this matter. The Constitution expressly provides that
"The Congress shall have Power ... To declare War . . .; To raise and support Armies ...; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States . . .; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." o
Thus the power to have forces and to prosecute war is granted expressly; and, further, though such a power obviously must carry with it vast incidental powers, the existence of such incidental powers is not left to implication alone but is itself recognized expressly.
The constitutional limitations most likely to be urged regarding emergency legislation are these:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” 10
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two witnesses to the same overt Act, or on Confession in
8 Legal Tender Cases, 12 Wall. 457 (1870); Juilliard v. Greenman, 110 U. S. 421 (1884). • Art. I., sect. 8.
10 Art. I., sect. 9.
11 Art. III., sect. 3.
“Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of griev
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” 13
“No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” 14
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 15
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 16
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” 17
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the
"The powers not delegated to the United States by the Constitu
15 Am. IV.
12 Am. I.
13 Am. II.
14 Am. III.
tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Let us now approach severally some of the items of the British emergency legislation.
The British government promptly, indeed even before the actual outbreak of war, took control over the transmission of messages by wireless telegraphy:20 As Congress has express power “to regulate Commerce with foreign Nations, and among the several States,” and as communication is commerce, and as wireless telegraphy is a mode of communication, and as wireless telegraphy even when not used for interstate or foreign communication may be an interference with such communication, it follows, even without the express provision that Congress shall have power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” that Congress may take control of wireless telegraphy; and, indeed, Congress took the necessary steps several years ago. 21 In the absence of the commerce clause such legislation would be upheld as an incident of the express powers “to declare War," "to raise and support Armies," "to provide and maintain a Navy," and "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” since the legislation in question is a reasonable method of making the army and navy efficient and of preventing the transmission of intelligence to the detriment of the army and navy and to the disadvantage of the purposes for which the country maintains the army and navy.
Similarly, when, under an Act of Parliament, the British government prohibited the navigation of aircraft over the whole area of the United Kingdom, the coast-line, and the adjacent territorial waters,22 what was done was what Congress might do either under the commerce clause or under the powers incident to making war and maintaining forces, as just now outlined.
The prohibition of the export of arms and ammunition 23 would be constitutional under the clause giving Congress power to regulate commerce with foreign nations. It would also be constitutional under the clauses giving Congress power to declare war, to
19 Am. X.
support armies and maintain a navy, and to make all laws necessary and proper for carrying into execution the foregoing powers; for clearly war is meant to be successful, and an army and a navy to be useful, and war could not be successful nor an army and navy useful without arms and ammunition. And so too of the prohibition of the export of provisions.
Further, it would be possible to sustain by the commerce clause the validity of part of the provisions in the British Aliens Restriction Act 24 for prohibiting aliens from landing and embarking, for deportation of aliens, and for requiring aliens to remain within certain places; but it would be simpler, and quite as easy, to sustain the whole of them under the war and army and navy clauses.
Similarly, it is upon the war and army and navy clauses that one would support in America the provisions of the British Act of Parliament 25 for requisitioning carriages, horses, vessels, aircraft, food, and stores of every description, and the provisions of later legislation expressly extending to all interferences with private rights of property for the purpose of serving the public safety. It is true that an appeal would be taken to the provision in the Fifth Amendment to the effect that no person “shall be deprived of life, liberty, or property, without due process of law”; but the seizure of property in the emergency of war is an ancient procedure, not to be overthrown by language so devoid of specification as is this. Here is a place where one must bear in mind that the due process clause of the Fourteenth Amendment - "nor shall any State deprive any person of life, liberty, or property, without due process of law”. is held not to deprive a State of the power to protect health, morals, quiet, and the like, even at the expense of restricting or destroying life, liberty, or property.26 If a State may thus, notwithstanding a due process limitation, interfere with life, liberty, and property for the sake of health, morals, quiet, and the like, it follows, a fortiori,
24 Aug. 5, 1914; EMERGENCY LEGISLATION, 6.
20 Bartemeyer v. Iowa, 18 Wall. 129 (1873) (State may prohibit use of intoxicating liquor); Munn v. Illinois, 94 U. S. 113 (1876) (State may regulate charges of grain elevators); Barbier v. Connolly, 113 U. S. 27 (1885) (Municipal ordinance may prohibit public laundry work between certain hours and within certain neighborhoods); Lawton v. Steele, 152 U. S. 133 (1894) (State may protect fish by destroying nets); Holden v. Hardy, 169 U. S. 366 (1898) (State may make an eight-hour day for underground mine workers).