The Atlantic Monthly, Volume 12, No. 69, July, 1863: A Magazine of Literature, Art, and PoliticsVarious
General
The Atlantic Monthly, Volume 12, No. 69, July, 1863: A Magazine of Literature, Art, and Politics
Various
American periodicals
2. As to the degree of the necessity which renders constitutional a law
framed to carry a constitutional power into execution, the rule by this
decision is,--
"If a certain means to carry into effect any of the powers
expressly given by the Constitution to the Government of the Union
be an appropriate measure, not prohibited by the Constitution, the
degree of its necessity is a question of legislative discretion,
not of judicial cognizance."
3. But still more explicitly is the question answered, who is to be the
judge of the appropriateness and necessity of the means to be employed,
thus:--
"The Government which has a right to do an act, and has imposed
upon it the duty of performing that act, must, according to the
dictates of reason, be allowed to select the means."
Thus, then, the matter stands. The powers to lay and collect taxes, to
exercise authority over forts and arsenals of the United States, to
suppress insurrection, and various others equally essential, are expressly
given by the Constitution to Congress. It is the right and duty of
Congress to carry these powers into effect. In case of obstruction or
defeat of existing laws framed to that intent, it is the right and duty of
Congress to select such means and pass such additional laws as may be
necessary and proper to overcome such obstruction and enforce obedience to
such laws. In the selection of the means to effect this constitutional
object, Congress is the sole judge of their propriety or necessity. These
means must not be prohibited by the Constitution; but whether they are the
most prudent or the most effectual means, or in what degree they are
necessary, are matters over which the Supreme Court has no jurisdiction.
As Chief-Justice Marshall has elsewhere in this decision expressed it, for
the Supreme Court to undertake to inquire into the degree of their
necessity "would be to pass the line which circumscribes the judicial
department and to tread on legislative ground."
There must, of course, be congruity or relevancy between the power to be
enforced and the means proposed to enforce it. While Congress is to judge
the degree of necessity or propriety of these means, they must not be such
as to be devoid of obvious connection with the object to be attained.
In this case, the object to be attained is the enforcement, in the
insurrectionary States, of laws without which no government can exist, and
the suppression in these States of an insurrection of which the object is
the dismemberment of the Union.
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