The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
In the State constitutions the important administrative offices are
usually named, as of treasurer, auditor general, secretary of state,
superintendent of education, commissioner of labor, of insurance,
of agriculture, of railways, and the like. The duties of persons
elected to these offices are usually prescribed in general terms.
Their delegated powers are ascertainable by judicial procedure. A
little reflection will make clear that most of the mere business
of government, State or federal, is carried on by administrative
officials who number, in the aggregate, in the United States quite a
million. These persons possess slight, if any discretionary authority;
they are ministerial public servants, and in the exercise of authority
vested in them they are all amenable to judicial process.
150. That Congress, with delegated powers of legislation, and
exercising them as the representative and agent of the sovereign people
of the United States, has power to lay and collect taxes, to coin
money, to declare war, to regulate commerce, and to do other acts,
whether or not these powers were specifically conferred, can hardly
be denied. The exercise of such powers goes with the very existence
of government. An example is afforded by the decision of the Supreme
Court that the power of the United States to acquire territory and to
govern it is an exercise of the war power.[423] The Court here reasons
from the general to the particular: from the general grant of power to
declare war to the particular use of the power in governing an area of
territory acquired.
It might seem, then, that as the whole always includes the part, and
the general the particular,—the necessary and essential thing to do
in creating government is merely to create it; for example, that the
people of the United States should ordain and establish a Constitution
consisting of the Preamble, which states the purpose and authority of
the Constitution, and three general articles:
Article I. The legislative power is vested in Congress.
Article II. The executive power is vested in the President.
Article III. The judicial power is vested in a Court.
151. The Preamble and these three delegations of power comprise the
essentials of the Constitution, lacking one other:
Article IV. The powers not delegated are reserved to the States or to
the people, and the enumeration of certain rights in the Constitution
shall not be construed to deny or disparage others retained by the
people.[424]
The rights thus retained, that is, _not delegated_, are _fundamental
rights_, are inviolate, and to guard against transgressions of the high
powers delegated to government by the people are excepted out of the
general powers of government; and being excepted out of the general
powers, they are logically excepted out of the particular.
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