The Essentials of American Constitutional Law — John Shaqi
The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
14. The general American doctrine is of the separation of delegated
powers, and is commonly set forth in State constitutions.[35] Such
separation of powers is not expressly declared in the Constitution
of the United States; the principle here is of limitation no further
than is necessary for the protection of each department of government.
Fundamentally it is a question of functions. Whatsoever authority
is necessary and proper for a department of government to exercise,
belongs to that department. The separation of powers,—legislative,
executive, judicial,—is a matter of agreement or convention made
by the sovereign. Government is a _unit_, not a tripartite machine
or device. But in order to administer government, and make it, as
the business man would say, “a going concern,” it is conceived and
organized into departments. Sovereignty in America vests legislative
power, so far as the people of the United States have delegated that
power,—in Congress. The Constitution does not specify all the powers
so delegated. Such specification is impossible. Such specification
“could scarcely be embraced by the human mind”; its details “would
partake of the prolixity of a legal code.”[36] The practical procedure
is followed in the Constitution of selecting general—that is, large,
comprehensive powers, or groups of powers, and authorizing Congress to
exercise them. As a matter of practical government, had the American
people chosen to declare in the Constitution that Congress shall have
power to make all laws necessary and proper for the government of
the United States, the grant would be essentially the same as that
made by naming the powers of Congress in that instrument. The powers
delegated to Congress are mentioned chiefly in the eighth section of
the first article of the Constitution. In other parts of the same
article other powers of Congress are declared, such as the power of
each House over its members; to choose a presiding officer; the power
of the Representatives to impeach; of the Senators to convict,—or try
impeachments, and the respective powers of the Houses, under some
circumstances, to elect a Vice-President, or a President,—and other
powers, as of proposing amendments.[37]
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