To avoid all controversy as far as possible, - the plainest words in granting powers to the United States were used which the language affords. Still further to preclude doubts, the convention added, at the close of the seventeen powers expressly given, this clause: To make all taws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States or in any department or officer thereof." Art 1, § 8. This clause contains no grant of power. But in the Articles Confederation, which was a compact between the states as independent sover eignties, the word EXPRESSLY was used ; and a doubt troubled congress how far incidental powers were included. Articles of Confederation, art. 2. This clause was introduced to remove that doubt. It cov ered incidental, but not constructive, powers. Strange as it may appear, both those who wished larger powers granted to the United States, and, in the language of that day, thought that things must be worse before they could be better, and those who honestly feared that too much power was granted, fixed their eyes 'on this clause ; and perhaps no part of the constitution gave greater warmth to the con troversy than this. To disarm the designing and counteract the fears of the timid, the tenth amend ment was offered by the friends of the constitution. But so jealous were parties of each other that it was offered in the 'convention of Massachusetts by Governor Hancock, who favored and had the con fidence of the opposition, tbough it was in the hand writing of Mr. Parsons, afterwards chief justice. Life of Chief Justice Parsons. That amendment is in these words: "The* powers not delegated to the United States by the constitution, nor prohibited to the states, are reserved to the states respectively, or the people." Were the words of the original con stitution and the amendment hoth stricken out, it would leave the true construction unaltered. Story, Const. § 1232. Both are equally nugatory in fact ; but they have an important popular use. The amendment formally admits that certain rights are reserved to states, and these rights must be sover eign.
In Kansas v. Colorado, 206 U. S. 46, 89, 96, 97, 27 Sup. Ct. 655, 51 L. Ed. 956, it was said (Brewer, J., delivering the opinion): "The proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in, the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the constitution, independently of the amendment, for otherwise there would be an instru ment granting certain specified things made opera tive to grant other and distinct things. This natural construction of the original body of the constitution is made absolutely certain by the tenth amendment. This amendment, which was seemingly adopted with prescience of just such contention as the pres ent, disclosed the wide-spread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future further powers seemed neces sary they should be granted by the people in the manner they had provided for amending that act." It reads: "The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The argument of counsel Ignores the principal factor in this article to wit, "the people." Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the.people of all powers not grant
ed. The preamble of the constitution declares who framed it, "we, the people of the United States," not the people of one state, but the people of all the states, and article X reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the con stitution, nor proh,bited by it to the states, are re served to the states respectively, and all powers of a national character which are not delegated to the national government by the constitution are reserved to the people of tbe United States." We have seen that, within their limited powers, the United States are the natural expositors of the constitution and laws that when a case affecting individual rights arises, tbe supreme court stands for tile United States, and that they have the sole right to explain and enforce the laws and constitu tion. But their power is conflued to the facts be fore them, and they have no power to explain them in the form of an edict to effect other rights and cases. Beyond these powers the states are sover eign, and their acts are equally unexaminable. Of the separating line between the powers granted and the powers withheld, the constitution provides no judge. Between sovereigns there can be no common judge, but an arbiter mtitually agreed upon. If that power is given to one party, that may draw all pow er to itself, and it establishes a relation not of equal sovereignties, but of eovereign and subject. On this subject the constitution is silent. The great men who formed it did not undertake to solve a ques tion that in its own nature could not be solved. Between equals it made neither superior, but trust ed to the mutual forebearance of both parties. A larger confidence was placed in an enlightened pub lic opinion as the final umpire ; and not until the war of the rebellion was this conflict between the two sovereignties finally settled by the ultima ratio regum. The etatus of the states and their political rights under the constitution have been considered at large by the supreme court in the case of Texas v. White, 7 Wall. (U. S.) 700, 19 L. Ed. 227. It is there held that authority to suppress rebellion is found in the constitutional power to suppress insur rection, and carry on war ; authority to provide for the restoration of state governments under the constitution when suspended and overthrown is de rived from the obligation of the United States to guarantee to every state in the Union a republican form of government. The unity of the states never was a purely artificial and arbitrary relation. It began among the colonies, and grew out of common origin, mutual sympathies, kindred principles, simi lar interests, and geographical relations. It was confirmed and strengthened .by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these the Union was solemnly declared to be per petual; and when these articlee were found to be inadequate to the exigencies of the country, the constitution was ordained "to form a more perfect union." But the perpetuity and indissolubility of the Union by no means imply the loos of, distinct and and individual existence, or of the right of self government by the states. On ,the contrary, it may, not unnecessarily, be said that the preservation of the states and the maintenance of their government are as much within the design and care of the con stitution as the preservation of the Union and the maintenance of the national government. The con stitution, in all its provisions, looks to an inde structible Union composed of indestructible states. See SECESSION.