Griswold v. Hepburn

Decision Date17 June 1865
Citation63 Ky. 20
PartiesGriswold vs. Hepburn.
CourtKentucky Court of Appeals


The only question involved in this appeal is the constitutional validity of so much of the congressional statute of the 25th of February, 1862, as enacted that "United States treasury notes (authorized by it) shall also be lawful money, and a legal tender in payment of all debts, public and private, in the United States."

A solution of the grave and apparently difficult problem now, for the first time, presented for the consideration of this court, has been attempted by several of the State tribunals, whose opinions have been various in reasons, and, to some extent, conflicting in conclusion. And, as the great controversy, thus far presenting such manifold phases, can be finally concluded only by the judicial organ of all the people of all the States, and as, therefore, no transient opinion of the appellate court of Kentucky can ultimately have any authoritative effect, we had hoped that we might be spared the peculiar responsibilities of announcing our own judicial conclusion on a subject as important to constitutional liberty and union as any ever presented to the American judiciary. But neither duty nor propriety will permit evasion or longer delay. And now, in reluctantly approaching a question of so much magnitude in principle and so momentous in its bearing on the consistency, stability, and practical supremacy of the Federal Constitution, our only fear is, that we may not be able to divest our judicial minds of all extraneous influence, and, with perfect impartiality, looking to the Constitution and its historic interpretation alone, expound it truly for the welfare of the country and the security of posterity.

The political mechanism of the United States is a simple dualism, consisting of separate State governments for all local concerns, and a common government for all national affairs.

The Constitution of the United States defines the spheres of each of these forms of government; and, in it, the people of the States, who, as pre-existing sovereignties, made it, reserved to themselves all powers not transferred by it, and declared that, in the ultimate sense, it shall be the supreme law of the land. As thus defined, each State government possesses the inherent sovereignty of its local constituency, modified by the delegation of all national power to the general government, and by the limitations of their common Constitution. Our unique system — Federo-national — is, therefore appropriately styled "Imperium in Imperio," and theoretically resembles the simplicity and harmony of the solar system, whose separate planets revolve in their own distinct orbits around their own central sun.

This new and beautiful organism is yet in the course of practical development, which may soon prove whether its fundamental equilibrium of local and national power is in most danger of disturbance from the centrifugal tendencies of the States, or the centripetal attractions of the central government. To preserve the constitutional balance, hitherto deemed indispensable to union and security, each government must, as their organic law contemplates and enjoins, confine its action within its own allotted sphere, and never cross the boundary line of their respective powers. Their common judiciary is their organic guardian of that sacred line, and no human tribunal was ever endowed with a higher power, or intrusted with a more responsible duty. Tranquility and fraternity demand that the general government especially should carefully abstain from the assumption of undelegated power, and the exercise of even a doubtful power which might jeopard the reserved rights of the States. And, consequently, as it is the duty of the Judiciary to pronounce the law in every judicial case, and as no act of Congress, not authorized by the Constitution, can be law, fidelity to official trust requires every court to adjudge any such act unconstitutional and void, and even to withhold its sanction and co-operation in every obscure case, unless it can see some satisfactory reason for admitting the constitutionality of the questionable act. When twilight vexatiously obscures the boundary between national and State power, there may be imminent danger, and especially in seasons of tempting disturbances by war or otherwise, of encroachment on the reserved rights of the States, whereby our Federal system might be dislocated, and its harmony, so essential to union, might be destroyed. To prevent such a national catastrophe, the judiciary should be slow to enforce an adventurous act pregnant with so much peril, and of such doubtful authority. But the same reason being inapplicable to State legislation of doubtful compatibility with a State Constitution, proper deference to the legislative department should preponderate in favor of the constitutionality of its acts, and require the judicial department to recognize them as laws, unless it shall be clearly satisfied that they are not.

Whenever a jurist inquires whether a State statute is consistent with the State Constitution, he looks into that Constitution, not for a grant, but only for some limitation of the power inherent in the people's legislative organ so far as not forbidden by their organic law.

But, as Congress derives its power from grants by the people of pre-existent State sovereignties, an enlightened inquirer into the constitutionality of any of its acts, looks only for a delegation of power by the Federal Constitution; for that Constitution expressly declares that all power not delegated by it, is reserved to the States or to the people. In this class of cases, therefore, he who asserts the power holds the affirmative, and, unless he "maintains it," the controverted act should not be enforced as law by the judiciary. On the contrary, the party affirming that a legislative act of a State is prohibited by the State Constitution, must prove it, and, unless the proof be clear, the contested act must be admitted to be law. The distinctive difference between the two classes of cases is, that, in the former, the power must be shown to have been delegated; but, in the latter, it must appear to have been prohibited.

And, in this case, therefore, the power to pass the tender act must satisfactorily appear to have been delegated before the judiciary should recognize and enforce it.

But express power to attain a designated end or fulfill a specific trust, necessarily implies the subsidiary power to employ the means necessary for effectuating the contemplated end, excepting only so far as a particular mean may be inconsistent with the charter of authority. And this clear principle of philosophy — applicable to political as well as to personal trusts — is expressly recognized and confirmed by that provision of the Federal Constitution which, immediately succeeding the enumerated powers, declares that Congress shall have power "to make all laws which shall be necessary and proper for carrying into execution the foregoing power."

To avoid controversy or doubt this clause was adopted, not as a grant, but only as an authoritative recognition of the necessary existence and true range of incidental powers too numerous and various for specific enumeration; and, consequently, this fundamental declaration neither enlarges nor contracts the specific powers expressly granted, but only certifies and defines the natural and necessary sphere of implied powers, which are as much delegated as the express powers to which they are properly subservient — as means to ends. These means must be both "necessary and proper." And what are such means may, in nearly all instances, be freed from rational doubt by a logical test consistently applied.

Indispensable is neither the popular nor the constitutional sense of the simple word "necessary." No one mean can be indispensable if any other mean could attain the same end; and therefore there could be no implied power in any case if none but indispensable means were constitutional. But all means relating to the end of any express power, and conducive to the execution of it, are, in the constitutional sense, "necessary means." And, among all such adaptable means, Congress may choose any one which, in the exercise of a sound discretion, it may deem most befitting. Over that choice — whether wise or unwise, politic or impolitic — the judiciary has no jurisdiction. Its revisory cognizance is confined to questions of power, and can never, without usurpation, be extended to questions of policy or expediency. And while, in this case, this court cannot consider the expediency or inexpediency of the tender act, it may and must decide whether it was an unprohibited mean adapted to the end of any express power.

"Proper" is neither synonymous with "necessary," nor a superfluous addition to it, as it would be if it import merely fitting, or appropriate, or adaptable, which is the meaning of "necessary." But, as a chosen mean may be prohibited by the letter or the spirit and aim of the Constitution, however adaptable, and, in that sense, "necessary," it cannot be "proper," and, therefore, it must be adjudged unconstitutional, as being thus prohibited. The true test of implied power is, whether a preferred mean is adapted to the end of an express power, and is also unprohibited, or, in other words, is congenial with the spirit and purpose of the Constitution. This test constructively excludes from "necessary and proper means" all power that is intrinsically substantive and independent, the non-delegation of which implied that the States and people intended to reserve it to themselves, or, in any event, to withhold it from Congress.

The incorporation of the national bank of 1816 raised this very question, in the great case of McCullough vs. Maryland, in which the supreme court of the...

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