Introduction

by Jon Roland

Many Americans who are alarmed about the exercise of powers by
government, especially the central government, that go beyond those
delegated by the Constitution, think that most of these usurpations
began with the New Deal, but an examination of the constitutional
history of the United States reveals that efforts to exercise
unconstitutional powers date back to the beginning of the Republic.

Perhaps the two most revealing issues that divided early Americans
centered on the Alien and Sedition Act of 1798 and proposals to
establish a National Bank. The former provoked a vigorous response,
represented by the Kentucky Resolutions of 1798 and 1799 and the
Virginia Resolution of 1798, led by Thomas Jefferson and James Madison,
the leaders of those favoring a strict construction of the delegation of
powers to the central government.

When Joseph Story was appointed to the Supreme Court at the instigation
of Jefferson and Madison, his views on constitutional interpretation
were similar to theirs, but the fourth Chief Justice of the Supreme
Court, John Marshall, favored a broader interpretation of delegated
powers, and under Marshall's influence Story's views changed. He began
to find implied powers in the words of the Framers, mainly in the
Commerce Clause, discussed in his Commentaries in Book III Chapter XXII,
and the Necessary and Proper Clause, discussed in Book III, Chapter
XXIV.

This is not to say that Story, or even Marshall, would have agreed with
how far the proponents of the New Deal interpretative doctrine went.
Story's words make it clear that he would at least comply with the basic
grammar of the language of the Constitution and the clear intent of the
Framers. But by opening the door to expansion of powers by
re-interpreting the language of the Constitution rather than by amending
it, and writing a work, these Commentaries, which dominated
constitutional interpretation for the next 100 years, he certainly laid
the basis for these usurpations, which would be further advanced by
Justice Oliver Wendell Holmes before the Supreme Court became packed
with justices appointed by President Franklin D. Roosevelt and his
successors.

The reader should focus on a few key points that define the divide
between the two interpretative doctrines. First, in the 1798 Kentucky
Resolutions we find that the central government has been delegated
powers to make criminal laws in only the following jurisdictions:

     State territory: subject jurisdiction only over 
          Counterfeiting 
          Treason 
          Piracy and felonies on the high seas 
          Offenses against the laws of nations

     Ceded (non-state) territory: general jurisdiction over all matters
     (municipal powers), subject to the restrictions of the Bill of Rights
     and other constitutional protections of rights

     Anywhere: personal jurisdiction over U.S. military personnel and
     militia personnel when in federal service

Second, commerce was interpreted by the Jeffersonians as including only
commercial transactions, not primary production such as farming, mining,
or manufacturing, not retail sales, and not possession and use. It also
did not include travel or navigation unless such travel or navigation
was also a commercial transaction, that is, an exchange of goods or
services for a valuable consideration.

Third, those powers considered necessary and proper included only the
following:

     Sub-powers of those explicitly delegated 
     Powers essential to exercise explicitly delegated powers

They did not include powers needed to achieve the same objects that the
delegated powers were apparently intended to achieve.

Third, the power to regulate did not include the power to prohibit or to
impose criminal penalties for violating regulations, only civil
penalties, such as fines.

The first expansion of the commerce power was inclusion of navigation.
This is discussed by St. George Tucker in Tucker's Blackstone, which
represents the state of thought on the subject in 1803. One suspects
that had the issue been raised in the Federal Convention the Framers
would have added "and navigation" after "commerce", but they didn't
think about it. The result was a practical problem which it was easier
to resolve by expanding the definition of "commerce" than by amending
the Constitution.

By the time Story wrote in 1833, however, powers considered necessary
and proper included those needed to achieve the apparent objects of the
explicitly delegated powers, and in particular, powers to impose
criminal penalties for violation of regulations. Once one admits that
interpretation, there is no longer a clear line for limiting the
expansion of federal powers.

In fairness, however, it does not appear that Story was attempting to
impose his own views of how the Constitution should be interpreted so
much as reflecting the emerging consensus of his times. How he dealt
with the logical and interpretative problems that this presented is most
clearly revealed in his chapter on Rules of Interpretation, Book III
Chapter V.

A few words need to be said about this online edition. The original
footnotes have been converted to chapter endnotes and numbered. Very
long chapters have been divided into parts, and in a few cases long
endnotes get their own files. This editor's additional endnotes are
indicated by an "E" prepended to the number. The index has page numbers
replaced by Book, Chapter, and Section references using the format
BB:CC:SSSS. Where possible, references to other works have links to the
actual works and the referenced passages in those works.

Initially, this work is offered in rough form while cleanup takes place,
but it is likely that a few errors will persist for some time, so
readers are urged to seek such errors and report them to the editor at
jon.roland@the-spa.com.