but from the fault of the body of citizens themselves, non-attendance at caucuses and primaries; non-attendance at registration and at the polls; slavish fidelity to party organizations and party names; a contributing to and winking at the corrupt use of money at nominating conventions and elections; and the encouragement or tolerance of individual self-seeking in respect of getting possession of offices, all of which are truly public trusts. Eighth, that in ninety-five instances out of a hundred, if there be an evil or inadequate senator or other officer in the public service, it is because the power that elected or appointed him his State or community has been either grievously negligent or else is fairly represented. We must believe that the people's government is a failure and a delusion, to think otherwise. Ninth, and finally, there is neither reasonable nor plausible ground then, for taking the grave step of disturbing the exact and solid balance of the powers and functions of our national Constitution, which has in these respects given us a century of security, of State representation, and of State rights, as well as a wonderful national progress as a people. 95. The Instruction of Representatives in Congress It is a principle of our constitutional law that Senators and Representatives are not to be instructed by their constituents, but this principle is constantly violated in practice by state legislatures in passing resolutions similar in form to this resolution adopted by Missouri in 1885. Joint and concurrent resolution instructing our Senators and requesting our Representatives in Congress to procure legislation authorising receivers of railroad companies appointed by Federal courts to be sued in local State courts, and preserve the right of trial by jury in such suits. Whereas the circuit courts of the United States, in the exercise of their powers as courts of equity jurisdiction, have, of late, 1 Burgess, Political Science and Constitutional Law, II, p. 50. The Senator should obey or resign. adopted the extraordinary practice of taking charge of and for years operating and managing railroads, oftentimes embracing a system of roads hundreds of miles in length and extending into different and distinct States. . . . Be it resolved by the house of representatives (the senate concurring therein), That our Senators in Congress be instructed and our Representatives requested, to procure such legislation as shall be necessary to secure to all persons the right to sue receivers of railroad companies appointed by Federal courts in places and courts of the States, and to prosecute to judgment, under the same form of law as is provided by State laws for suits against the companies, and for such further legislation therein as will properly regulate and limit the powers of the Federal courts in their equitable interference with and control over railroad companies, so as to preserve to the people their common law and constitutional rights. Approved March 19, 1885. Henry Clay thus committed himself to the doctrine that representatives were ordinarily bound by instructions from their constituents. What is the basis, and what the principle of the doctrine of instruction? Sir, to a certain extent, I have always believed in this doctrine, and have been ever ready to conform to it. But I hold to the doctrine as it stood in 1789; that, in general, on questions of expediency, the representative should conform to his instructions, and so gratify the wishes, and obey the will, of his constituents, though on questions of constitutionality his course might be different; and, therefore, when the senator last up (Mr. Strange) declared that he would rather submit to a certain operation, than to give his vote declaring that there had been a violation of the Constitution, I felt some alarm, lest the true doctrine of instruction should itself be subverted. And it did not appear to occur to him at the time, that there was another alternative besides obeying, that is, to resign. And what is the doctrine of instruction, as it is held by all? constituents Is it not that we are to conform to the wishes of our constituents? Senators to Is it not that we are to act, not in our own, but in a delegated express their character? And will any who stand here, pretend, that whenever will they know the wishes or will of those who sent them here, they are not bound to conform to that will entirely? Is it not the doctrine, that we are nothing more than the mirror to reflect the will of those who called us to our dignified office? That is the view which I take of the doctrine of instruction. CHAPTER XIII Section VIII of the federal THE POWERS OF CONGRESS 96. Express Powers Conferred upon Congress by the Constitution THE Congress shall have power: 1. To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare Constitution. of the United States; but all duties, imposts, and excises shall be uniform throughout the United States; 2. To borrow money on the credit of the United States; 3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; 4. To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; 5. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures; 6. To provide for the punishment of counterfeiting the securities and current coin of the United States; 7. To establish post-offices and post-roads; 8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; 9. To constitute tribunals inferior to the Supreme Court; 10. To define and punish felonies committed on the high seas. and offenses against the law of nations; II. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; 12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years; 13. To provide and maintain a navy; 14. To make rules for the government and regulation of land and naval forces; 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; 16. 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, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; 17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased, by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and, 18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. 97. The Doctrine of Strict Construction The method of reasoning employed by those who would restrict the powers of Congress to the plain letter of the law is illustrated in the following paper by Jefferson, in which he strove to show the unconstitutionality of the proposition to establish a national bank.' I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." (XIIth amendment.) To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition. 1 See above, p. 63. The first principle of the Constitution |