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may have urged in debate in regard to the meaning to be given to a proposed amendment does not furnish a firm ground for its construction, nor is it important as explanatory of the grounds upon which the Members voted in adopting it.

Legal Tender Cases, 12 Wall. 560; 110 U. S. 444.
Maxwell v. Dow, 176 U. S. 601.

See also
U. S. v. Wong Kim Ark, 169 U. S. 699.
Watkins v. Holman, 16 Pet. 62.

Buchanan v. Litchfield, 102 U. S. 293.
In the case of Downes v. Bidwell (182 U.S. 254) the court said:

It is unnecessary to enter into the details of this debate. The arguments of individual legislators are no proper subjects for judicial comment. They are 80 often jufluenced by personal or political considerations or by the assumed necessities of the situation that they can hardly be considered even as the deliberate views of the persons who make them, much less as dictating the construction to be put upon the Constitution by the courts.

Contemporary legislation.—Legislation by Congress immediately following the adoption of the Constitution, and legislation enacted at the time of proposing or immediately following the proposal or adoption of an amendment, is authoritative in determining the scope of a constitutional provision, and is entitled to great weight. The first ten amendments to the Constitution were proposed by the First Congress of the United States, at its first session, on September 25, 1789. At the same session an act was passed “ to regulate the collection of duties imposed by law on the tonnage of ships or vessels, and on goods, wares, and merchandise imported into the United States." The statute authorized the customs officials to seize and search for goods suspected of having been fraudulently entered or concealed. It can not be suggested with any force that the same Congress which proposed the amendments could have regarded the fourth and fifth amendments as forbidding the enactment of those or of kindred provisions. At the same session the judiciary act was passed. As an important legislative construction of the seventh amendment, guaranteeing the right of trial by jury in suits at common law, that a statute giving a summary judgment is consistent with it, the judiciary act provided that the court of the United States shall have power, in the trial of actions at law, to require the parties to produce books and papers in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery; and if plaintiff shall fail to comply with such order it shall be lawful for the court to give judgment for the defendant as in case of nonsuit.

Waring v. Clarke, 6 How. 456.

Ames v. Kansas, 111 U, S. 469. This rule can be relied upon only in cases of doubt, and before any appeal can be made to practical construction it must appear that the true meaning of a provision of the Constitution is not clear. No number of statutes, or infractions of the Constitution, however numerous, can be permitted to import a power which does not exist, or

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to furnish a construction not warranted; long acquiescence of Congress and the Executive, by which the rights of parties have been determined and adjudged for many years, does not make constitutional that which is unconstitutional.

Fairbank v. U. S., 181 U. S. 307.
U. S. v. Boyer, 85 Fed. 425.

Field v. Clark, 143 U. S. 691. The Federalist.—The Federalist is a collection of 85 essays, which were published in the newspapers immediately after the submission of the Constitution to the conventions of the several States. They were written by Hamilton, Madison, and Jay, suggesting the defects existing under the Confederation, and advocating the adoption of the Constitution. As in the case of other contemporaneous exposition, the construction given to the Constitution by the authors of the Federalist is entitled to great weight. But in applying their opinions to cases which may arise, a right to judge of their correctness must be retained.

McCulloch v. Maryland, 4 Wheat. 433.
Cohens v. Virginia, 6 Wheat. 418.

Pollock v. Farmers' Loan, etc., Co., 158 U. S. 627. Meaning of words.-In construing the Constitution, the intention of the instrument is to prevail, and this intention is to be collected chiefly from its words understood in their ordinary sense; reference is to be had to the literal meaning of the words to be expounded, their connection with other words, and the general objects to be accomplished. Although the spirit of an instrument is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words; it can not be inferred from extrinsic circumstances that a case for which the words expressly provide shall be exempted from its operation. The argument of inconvenience can not prevail over plain words, but a construction which would necessarily occasion public or private mischief must yield to a construction which will occasion neither. A case within the words of a rule must be deemed within its operation unless something in the literal construction is so obviously absurd or mischievous, or so repugnant to the spirit of the instrument as to justify an exception.

Ogden v. Saunders, 12 Wheat. 332.
Houston v. Moore, 5 Wheat. 1.

Briscoe v. Bank of Kentucky, 11 Pet. 257. No word or clause can be rejected as superfluous or meaningless, but each must be given its due force and appropriate meaning. Words in a constitution, as well as words in a statute, are always to be given the meaning they have in common use unless there are other strong reasons to the contrary. They are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. Words and terms are to be taken in the sense in which they were used and understood at common law and at the time the Constitution and the amendments were adopted. Where any particular word or sentence is obscure or of doubtful meaning, taken by itself, its obscurity may be removed by comparing it with the words and

12703°-S. Doc. 157, 68-1-7

sentences with which it stands connected. Where the meaning is plain and clear, resort to collateral aids to interpretation is unnecessary and can not be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction is entitled to the greatest weight.

Knowlton v. Moore, 178 U. S. 87.
Tennessee v. Whitworth, 117 U. S. 147.
Pollock v. Farmers Loan etc., Co., 158 U. S. 618.

See also
Holmes v, Jennison, 14 Pet. 571;
Virginia v. Tennessee, 148 U. S. 519, as to construction of agree

ment" and compact" in Art. I, sec. 10;
Hurtado v. California, 110 U. S. 534, as to construction of " due

process of law” in the fifth and fourteenth amendments; Jacobson v. Massachusetts, 197 U. S. 22, as to the spirit of the Con

stitution -not justifying an attempt to control its words; Locke v. New Orleans, 4 Wall. 172; Wheaton v. Peters, 8 Pet. 061 ; McCulloch v. Maryland, 4 Wheat. 414, as to construction of the words "

necessary and proper" in Art. I, sec. 8, cl. 18, and “necessary” in Art. I, sec. 10; Mononga hela Nav. Co. v. U. S. 148 U. S. 327, as to construction of

the words “ just compensation" in the fifth amendment; Munn v. Illinois, 94 U. S. 123, as to the use of the word "deprive"

in the fourteenth amendment.

The Constitution is to be construed in the sense in which the words and terms used were understood hy those who made and those who adopted it. The term “ex post facto," literally construed, would apply to any act operating upon a previous fact, yet it was understood at the time the Constitution was adopted, both in this country and in England, as embracing only criminal laws and laws providing for the recovery of penalties or forfeitures.

It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. Noscitur a sociis is a rule of construction applicable to all written instruments.

The Huntress, 2 Ware (U. S.) SI.
Locke v. New Orleans, 4 Wall. 172.
Viriginia v. Tennessee, 148 U. S. 519.
Ex parte Bain, 121 U. S. 12.
Carpenter v. Pennsylvania, 17 How. 463.

Kendall v. U. S., 12 Pet. 524. A general rule has been laid down that affirmative words are to be given a negative operation, but this rule can be applied, and a negative be implied from affirmative words, only where the implication promotes, not where it defeats, the obvious intention of an article. Every part of the article must be taken into view, and that construction adopted which will consist with its words and promote its general intention. In the case of the grant to the Supreme Court of original jurisdiction in certain cases, a negative or exclusive sense must be given or it has no operation, but in the grant of appellate jurisdiction, that jurisdiction may be exercised in every case cognizable under Article III, in the Federal courts, in which original jurisdiction can not be exercised; and the extent of this judicial power is to be measured, not by giving the affirmative words of the distributive clause a negative operation in every possible case, but by giving their true meaning to the words which define its extent.

Cohens v. Virginia, 6 Wheat. 394.

Marbury v. Madison, 1 Cranch 174. Powers reserved by the States. The rule of construction governing reserved state powers is given by the court in Livingston v. Van Ingen, 9 Johns. (N. Y.) 507, in the following language:

When the people create a single, entire government, they grant at once all the rights of sovereignty. The powers granted are indefinite and incapable of enumeration. Everything is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people. But when a federal government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserved to the members that is not, either in express terms or by necessary implication, taken away from them, and vested exclusively in the federal head. This rule has not only been acknowledged by the most intelligent friends to the Constitution, but is plainly declared by the instrument itself. Congress have power to lay and collect taxes, duties, and excises, but as these powers are not given exclusively, the States have a concurrent jurisdiction, and retain the same absolute powers of taxation which they possessed before the adoption of the Constitution, except the power of laying an impost, which is expressly taken away. This very exception proves that, without it, the States would have retained the power of laying an impost; and it further implies, that in cases not excepted, the authority of the States remains unimpaired (p. 574).

Conflict between National and State laws.-It was held in Tarble's Case (13 Wall. 397), that whenever any conflict arises between the enactments of the National and State Governments, or in the enforcement of their asserted authorities, those of the National Government have supremacy until the validity of the different enactments and authorities are determined by the tribunals of the United States. The court said (p. 407):

This temporary supremacy until judicial decision by the national tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two Governments.

In speaking of this conflict of authority in connection with State process in Ableman v. Booth (21 How. 506), and holding that the process of a State court or judge has no authority beyond the limits of the sovereignty which confers the judicial power, Chief Justice Taney said:

The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home; for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose, it was felt by the statesmen who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government; and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities.

This language was quoted in substantiation of the opinion of the court by Mr. Justice Field in Tarble's Case, supra.

The seventh amendment applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in State courts, or the standards which must be applied concerning the same.

Minneapolis, etc., R. Co. v. Bombolis, 241 U. S. 211. The guaranty of equal privileges and immunities to citizens of the United States by the fourteenth amendment does not limit the power of the State government over the rights of its own citizens.

Holden v. Hardy, 46 Pac. 756, affirmed in 169 U. S. 366. Effect of exceptions.—The exceptions from a power mark its extent, and an exception of any particular case presupposes that those which are not excepted are embraced within the grant or prohibition. Where no exception is made in terms, none will be made by mere implication or construction.

Gibbons v. Ogden, 9 Wheat. 191.

Brown v. Maryland, 12 Wheat. 438. The rule that in the enforcement of provisions guaranteeing civil rights Congress is limited to the enactment of legislation corrective of any wrong committed by the States and not by the individuals, does not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such powers to the States, as in the regulation of commerce, the coining of money, the establishment of post offices and post roads, the declaring of war, etc. In such cases Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof.

Civil Rights Cases, 109 U. S. 18. Where a particular power has been granted to Congress and has never been expressly denied to the States, the States may exercise the power, in the absence of congressional legislation, on the principle that it is not the grant of power to Congress, but its actual exercise of that power, that makes its action exclusive. State legislation which conflicts with the acts of Congress is, of course, null and void, ipso facto.

Houston v. Moore, 5 Wheat. 49.

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