842 



SCIENCE 



[N. S. Vol. X5XVIII. No. 989 



diction or right which is not expressly delegated 

 by the confederation, it does not then follow that 

 the United States in congress have no other pow- 

 ers, jurisdictions or rights, than those delegated 

 by the particular states. The United States have 

 general rights, general powers and general obliga- 

 tions, not derived from any particular states taken 

 separately; but resulting from the union of the 

 whole. To many purposes the United States are 

 to be considered as one undivided, independent na- 

 tion; and as possessed of all rights, powers and 

 properties by the law of nations incident to such. 

 Whenever an object occurs, to the direction of 

 which no particular state is competent, the man- 

 agement of it must, of necessity, belong to the 

 United States in congress assembled. There are 

 many objects of this extended nature. 



In one of his speeches, after a few compli- 

 mentary words for James Wilson, Mr. Eoose- 

 velt said: 



He developed even before Marshall the doctrine 

 (absolutely essential not merely to the efficiency 

 but to the existence of this nation) that an in- 

 herent power rested in the nation outside of the 

 •enumerated powers conferred upon it by the con- 

 ^stitution, in all cases where the object involved 

 Tvas beyond the power of the several states, and 

 ■was a power ordinarily exercised by sovereign na- 

 tions. . . . Certain judicial decisions have done 

 just what Wilson feared; they have, as a matter 

 of fact, left vacancies, left blanks between the 

 limits of actual national jurisdiction over the 

 control of the great business corporations. Aetual 

 experience has shown that the states are 

 wholly powerless to deal with this subject [con- 

 trol of corporations] and any action or decision 

 that deprives the nation of the power to deal with 

 it simply results in leaving the corporations free 

 to work without any effective supervision. 



One might quote no end of decisions and 

 texts declaring that Congress has only con- 

 ferred and implied powers. Until this act the 

 proposition has been regarded as settled. 

 Therefore only one very recent case will be 

 cited. In the case of Kansas v. Colorado, 206 

 U. S. 46, 1907, the same argument as that 

 underlying the bird law was presented, and the 

 court by Justice Brewer replied : 



But the proposition that there are legislative 

 powers affecting the nation, as a whole, which be- 

 long to, although not expressed in, the grant of 

 jiowers, 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 amendments, 

 for otherwise there would be an instrument grant- 

 ing certain specified things made operative to 

 grant other and distinct things. 



He then shows it to be conflicting with the 

 10th amendment, which declares : 



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. 



This means that in the ordinary way — <;on- 

 stitutional amendment — this new power could 

 be thrown into the federal sphere, but in no 

 other way can it be accomplished. 



Constitutional thought then would seem to 

 be unanimous against the validity of the Mc- 

 Lean law, although there is " a " theory on 

 which it might be vindicated. Public opinion 

 is quite interested in a national bird law, and 

 naturally hopes for a favorable decision. 



What will be the effect of a decision declar- 

 ing valid this new type of national powers, 

 never before exercised. It will mean that 

 Congress can legislate on any subject in which 

 uniformity is desirable but impossible by 

 diverse state action. It will open the way for 

 a federal divorce law, a federal marriage law, 

 a federal incorporation law, a federal insur- 

 ance law, federal laws regulating hours of 

 labor and the conditions of labor, federal laws 

 on negotiable instruments, bills of lading, 

 warehouse receipts, partnership, in fact the 

 whole list of subjects which is now being 

 urged upon the states for uniform adoption. It 

 is conceivable too that after Congress has once 

 legislated on such a subject, conditions may 

 change, and uniformity become undesirable. 

 Would it not follow then that the particular 

 power would again be shifted to the states, 

 and could not be constitutionally exercised by 

 the federal branch? It is apparent that this 

 new doctrine would virtually wipe out our 

 whole division of powers between the state 

 and federal branches, and would erect in its 

 place a shifting rule depending on economic 

 conditions. It would virtually destroy our con- 

 stitution as far as the division of powers is 



