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GEORGETOWN UNIVERSITY, SCHOOL OF LAW,

OFFICE OF SECRETARY,

WASHINGTON, D. C., February 19th, 1885.

Hon. GEORGE TICKNOR CURTIS.

DEAR SIR: I am directed by the Faculty of the Law Department of Georgetown University to request of you the manuscript of your lecture on "The Implied Powers of the Constitution," with a view to its publication.

Very respectfully,

S. M. YEATMAN,

Secretary.

We hear a great deal, and probably we shall continue to hear a great deal, about a liberal and a strict construction of the Constitution. You are engaged in a study of the Constitution preparatory to taking your places in active life as lawyers and citizens. It is of great importance for you, therefore, to know whether it is correct to regard the socalled strict construction as inadmissible because it is too narrow; whether the so-called liberal construction is always the safe one; and whether there is not a clear and well defined rule of interpretation, which should not be called either strict or liberal, in the sense of being harmful and injurious to the great objects for which this Constitution was created. And here let me advise you not to be governed by what is supposed to be the characteristic tendency of this or that political party, in forming your opinions about the Constitution of your country. You have something higher and better to do, in prosecuting the studies in which you are now engaged, than to accept the dogmas of a party because you or your friends may happen to act with it. What you have to do is to subject party dogmas to the proper tests of truth and sound reasoning, leaving the result to fall where it may, so far as all political parties are concerned.

Still there have been from the first two schools of interpretation, one of which has been characterized as liberal and the other as strict. Great names may be arrayed on either side. The two schools have mutually charged each other with very

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wrong and very dangerous tendencies. But I have long believed that it is best to discard the epithets of strict and liberal, and to inquire into the true and sound method of interpretation, without characterizing it by either of these phrases. Nine men out of ten whom you hear talking glibly about the mode in which the Constitution should be construed, could not tell the meaning of the strict or the liberal construction on which they insist. The true method of interpretation can not be characterized or described by a phrase. It must be ascertained by certain fundamental rules, which are to be deduced from a careful study of the text, from the surrounding historical facts which show why the text was made as it was, and from the great leading purposes for which the Constitution was established. These sources of interpretation all point to certain conclusions, namely, that the Government of the United States is a limited government, with certain enumerated and described powers; that it is not a government of universal authority like many other governments; but that its authority is specific, confined to certain described subjects and relations, which the Constitution itself denominates its "powers," and to one or more of which powers all its acts must be referred.

The fundamental principle on which our Constitution is based is that all government derives its existence and authority from the people. Hence it can have no powers but such as the people choose to confer upon it. Its powers are grants made to it by the people. From the limited number and specific character of the powers conferred by the Constitution on the General Government-less than all the powers of sovereignty-it follows that the people of this country are a nation only for certain defined purposes and objects which concern them all alike. All other powers of government,

IMPLIED POWERS OF THE CONSTITUTION.

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all other objects of government, are expressly reserved to the respective States or their people, by a provision which is a part of the Constitution itself.

But there is another truth of equal importance and equally undeniable. This is the supremacy of the Federal Constitution. It declares itself to be the supreme law of the land. Its supremacy means that to the full extent of its granted powers, the authority of the Constitution is perfect, incapable of being controlled by the State governments; and that when any conflict arises the State must give way. A mode of effecting a peaceful solution of all such conflicts is provided through the Supreme Federal Judiciary. But it is sometimes a matter for careful interpretation how far the authority of this Government extends, or what is the sphere of its constitutional operation. Hence arises the necessity for inquiring what are its implied powers, or powers which incidentally result from or are embraced in the express powers that are described in the text in general terms. This is the principal topic on which I propose to say something this evening.

I will, however, first advert to the unwritten history of opinion and belief concerning the nature of the Constitution. I call it an unwritten history, because, although the materials for it are ample, they have never yet been embodied in a connected and methodical narrative. I hope ere long to make an effort to do this. It is a part of our constitutional history that it is both very curious and very instructive. It bears directly upon that long conflict which finally culminated in a civil war; and it shows how completely the two opposite theories of the Constitution were matters of opinion and belief, about which men could and did honestly and conscientiously differ, whatever were the immediately excit