Implied powers

“ All other powers, not prohibited to the States, are reserved to them or to the people. As I said in the case referred to, the doctrine that where a power is not expressly forbidden it may be exercised, would change the whole character of our government. According to the great commentators on the Constitution, and the opinions of the great jurists, who have studied and interpreted its meaning, the true doctrine is, that where a power is not in terms granted, and is not necessary or proper for the exercise of a power thus granted, it does not exist. ”

“ Where there are two powers, one in the State, another in the nation, one in individuals, or another in the nation, the exercise of the one power is not to be destroyed by the mere existence of the other, where that exercise is bona fide, with no intent or purpose of invading, or manifest, or natural tendency to invade it. ”

“ From which it follows, that in the case of every creature it is a result of his own works and movements, that those powers which appear either to hold sway over others or to exercise power or dominion, have been preferred to and placed over those whom they are said to govern or exercise power over, and not in consequence of a peculiar privilege inherent in their constitutions, but on account of merit. ”

“ And a little further on: “Which order of things is regulated by the providential government of the whole world, some powers falling down from a loftier position, others gradually sinking to earth: some falling voluntarily, others being cast down against their will: some undertaking, of their own accord, the service of stretching out the hand to those who fall; others being compelled to persevere for so long a time in the duty which they have undertaken.” ”

“ The solution of the difficulty in which the mind becomes involved when considering these most serious questions, seems reduced to a single proposition—that all strifes, difficulties and controversies regarding government and its administration, arise from the fact, that the governing power is not general but specific in its operations, or that the powers governed are not subservient to a common law of control. ”

“ They are still states, because their powers are original and inherent, not derivative; because their political rights are not also legal duties; and because they can apply to their commands the full imperative sanctions of law. ”

“ So long as there are two powers in a state, they will necessarily be at variance, and the one which arrogates the favor of the Almighty will have immense advantages over that which claims no authority above the earth. ”

“ The powers, therefore, belonging to any branch of our government, are to be construed and settled, not by remote analogies drawn from other governments, but from the words of the grant itself, in their plain sense and necessary import, and according to an interpretation consistent with our own history and the spirit of our own institutions. ”

“ But there arises, by this division of authority, the danger of its misuse to the disadvantage of the ruler himself. Since despotic government depends on might alone, and the voice of the people has no influence, every person in any way related to the ruler represents a danger. Nevertheless, the establishment of new powers to assist the ruler was the starting-point of constitutional government. ”

“ The Rulers, as well as all other Individuals, with all their individual powers, are taken into account in order to direct the powers of the governed,—who no more than they constitute the State,—towards the common purpose, so far as they understand it, and to enforce this purpose on all who are opposed to it. ”

“ If the implied power be otherwise plain it is difficult to see why it should be treated any differently as regards the exercise of it, or its relation to the spirit of the Constitution, from any other power. ”

“ I would give more for such an endowment, than for all the abstract rights this side the moon.
The third self-evident truth asserted, is expressed thus—"that to secure these rights" (meaning those we have just been contemplating) "governments are instituted among men, deriving their just powers from the consent of the governed," &c. ”

“ It asserts that whether in any degree promotes an end within the scope of a general power, whether, in the correct sense of the word, appropriate or not, may be done in the exercise of an implied power. ”

“ This power, so formed, is the governing power, which, while all parts have contributed to its formation, is in itself superior to any power that can be organized within its limits by any part of the originally consolidating powers. If at any time an opposition is organized to it, the result must either be, the reduction of the opposition or the destruction of the confederation. For a natural illustration the human body is again referred to. ”

“ It is, indeed, the negative power which makes the constitution — and the positive which makes the government. The one is the power of acting — and the other the power of preventing or arresting action. ”

“ This claim, wild as it may seem, this claim, which supposes dominion without authority, and subjects without subordination, has found among the libertines of policy many clamorous and hardy vindicators. The laws of Nature, the rights of humanity, the faith of charters, the danger of liberty, the encroachments of usurpation, have been thundered in our ears, sometimes by interested faction, and sometimes by honest stupidity. ”

“ To ask why I am to submit to the power of the state, is to ask why I am to allow my life to be regulated by that complex of institutions without which I literally should not have a life to call my own, nor should be able to ask for a justification of what I am called on to do. ”

“ And if Power comes down upon us, and with no questions asked or answers given, sets us rules or orders, and compels us to obey, and forces and punishes us till we do; what follows? Is this good for the one who is under rule? ”

“ When this solidification of many into one has been reached, we shall be at last face to face with the naked truth that it is not only the form but the fact of arbitrary power, of control without consent, of rule without representation that concerns us. ”

“ To avoid a dilemma so unpromising, the wide difference between a derivation from fixed moral principles, or from fluctuating mixtures of monarchical, aristocratical and democratical orders or powers, is contended for throughout this essay. ”

“ Rule stands by rule, usage beside usage,—a mere aggregate or multitude of petty tyrants, reduced to no unity or system, and each pressing with all the weight of an absolute mandate. The pettiest bit of ceremonial law is here of equal dignity with the most far-reaching principle of political obligation. ”

“ To provide against these certain and eternal evils, mixed forms of government were invented; where dominion and liberty are so equally tempered, and so mutually checked one by another, that neither of them can have interest and force enough to oppress the other. ”

“ Every authority that claimed man’s homage was weighed in the scales of the understanding, and, so weighed, every such authority was found wanting. The State had come to be regarded as only a collection of individuals who had agreed to live together under a ruler deriving all his claims from their consent, and invested with no divine right to their allegiance. ”

“ But from this grant I infer, as before hath been touched, that the sovereign, original, and foundation of civil power, lies in the people—whom they must needs mean by the civil power distinct from the government set up: and if so, that a people may erect and establish what form of government seems to them most meet for their civil condition. ”

“ It is a sad and false political system that places society and government, authority and liberty, in opposition to each other, by making them come from two different sources, by presenting them as two contrary principles. I often hear the principle of authority spoken of as a principle apart, independent, deriving from itself its force and legitimacy, and consequently made to rule. No error is deeper and more dangerous. ”

“ No obligation, then, as distinct from compulsion, to submit to an ostensibly sovereign power can consistently be founded on a theory according to which right either = simple power, or only differs from it, in the form of 'jus civile,' through being a power which an 'imperium' enables individuals to exercise as against each other. ”

“ To get justification for positive law, he takes us back to the absolute sovereignty of the power imposing it—a monarch, an aristocracy, or that larger body of men who have votes in a democracy; which body he also styles the sovereign, in contrast with the remaining portion of the community, which, from incapacity or other cause, remains subject. And having affirmed, or rather taken for granted, the unlimited authority of the body, simple or compound, small or large, which he styles sovereign, he, of course, has no difficulty in deducing the validity of its edicts, which he calls positive law. ”

“ For these various reasons there have been occasions in the history of all modern states at which men, or bodies of men, without the conscious assertion of any right not founded upon law, might naturally deem themselves entitled to resist an authority which on its part claimed a right—a legally established power—to enforce obedience, and turned out actually to possess the power of doing so. ”

“ The whole system of this country, like the constitution we boast to inherit, and are glad to uphold, is made up of established facts, prescriptive authorities, existing usages, powers that be, persons in possession, and communities or classes that have won dominion for themselves, and will hold it against all comers. ”

“ Every law is a command, not only, but the command of a supreme authority; and it would be a singular contradiction in terms to speak of this supreme power as limited by law. How can the supreme author of law within a state himself be subject to law: how can the creature bind the creator? How can one refrain from smiling at the logical incapacity of those who speak of limitations to sovereignty, or, more absurdly still, of divisions of sovereignty?65 Is there a hierarchy of supremacies: can there be a co-ordination of creators? ”

“ They are the expressions in which it becomes real. As conflicting with the momentary inclinations of the individual, these institutions are a power which he obeys unwillingly; which he has to, or is made to, obey. ”

“ Upon the principles of the Declaration of Independence, the dissolution of the ties of allegiance, the assumption of sovereign power, and the institution of civil government, are all acts of transcendent authority, which the people alone are competent to perform ”

“ No being is fit to rule, govern, and dictate, until he has been controlled, governed, and dictated,—has yielded obedience to law, and proved himself worthy, by magnifying the law that was over him, to be master of that law. ”

“ A power lodged in the hands of one single man, to judge and determine, without any limitation, without any control or appeal, is a sort of power unknown to our laws, inconsistent with our constitution. ”

“ For if sovereign authority is derived formally from the consent of the people and not from God, who is the supreme and Eternal Principle of all power, it loses in the eyes of the governed its most august characteristic and degenerates into an artificial sovereignty which rests on unstable and shifting bases, namely, the will of those from whom it is said to be de- rived. ”

“ But I am unable to perceive in this fact, which all sensible men acknowledge, any cause for the exercise of ungranted power. The greater its lawful power, the greater the reason for not usurping more. ”

“ So long as the State preserves its power among the people, the people must render their obedience to the State,—to the sovereign in whom the contract was vested. The might of the political State makes right. ”

“ It was felt that a central power must reside somewhere, a power which should guide the people and control the magistrates, a power which should above all avert the terrible conflicts between rival authorities so amply encouraged by the existing law. ”

“ No government or governments in the world, except their own one state government could interfere at all directly with those rights, and they had given to, and they could take from, that government any power of that kind. ”

“ This power is a much more complex and less determinate, or less easily determinable, thing; but a sense of possessing common interests, a desire for common objects on the part of the people, is always the condition of its existence. Let this sense or desire—which may properly be called general will—cease to operate, or let it come into general conflict with the sovereign's commands, and the habitual obedience will cease also. ”

“ Pretensions to power, destructive of the natural and inherent privileges of humanity, and inconsistent with every principle of common sense, were asserted from the pulpit, were claimed by the sovereign. ”

“ It is evident that such Governments as are by them erected and established, have no more power, nor for no longer time, then the civill power or people consenting and agreeing shall betrust them with. ”

“ It amounts to asking whether a certain power is also a power over itself: or, more precisely, whether a man possessing a certain power—that which we call freedom—has also the same power over that power. ”