A doctrine of construction radically different from that which has just been stated, and which has never been accepted by the Supreme Court, is that originally put forth by James Wilson of Pennsylvania, and in recent years urged by President Roosevelt.

This doctrine is, that when a subject has been neither expressly excluded from the regulating power of the Federal Government, nor expressly placed within the exclusive control of the States, it may be regulated by Congress if it be, or become, a matter the regulation of which is of general importance to the whole nation, and at the same time a matter over which the States are, in practical fact, unable to exercise the necessary controlling power. According, then, to this doctrine, the Ninth and Tenth Amendments which declare that: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and that "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," are not to be interpreted as reserving to the States, or to the people, those powers which, though not granted to the Federal Government, are, in fact, such as are of federal importance and which the States are unable effectively to exercise.

The argument of James Wilson, made in 1785 when the United States was under the Articles of Confederation but applicable, a fortiori, to the present Constitution, is in the following language: "Though the United States in Congress assembled derive from the particular States no power, jurisdiction, or right exigencies of a few years, but was to endure through a long lapse of ages, the as of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which at the present might seem salutary might in the end prove the overthrow of the system itself. Hence its powers are expressed in general term, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers own wisdom and the public interests should require."

President Roosevelt has expressly adopted the foregoing doctrine as sound. He says: "I cannot do better than base my theory of governmental action upon the words and deeds of one of Pennsylvania's greatest sons, Justice James Wilson." Interpreting this theory, Roosevelt says: "He developed even before Marshall the doctrine (absolutely essential not merely to the efficiency but to the existence of this nation) that an inherent power rested in the nation, outside of the enumerated powers conferred upon it by the Constitution, in all cases where the object involved was beyond the power of the several States and was a power ordinarily exercised by sovereign nations. In a remarkable letter in which he advocated setting forth in early and clear fashion the powers of the National Government, he laid down the proposition that it should be made clear that there were neither vacancies nor interferences between the limits of state and national jurisdictions, and that both jurisdictions together composed only one uniform and comprehensive system of government and laws; that is, whenever the States cannot act, because the need to be met is not one merely of a single locality, then the National Government, representing all the people, should have complete power to act. . . . 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. . . . The legislative or judicial actions and decisions of which I complain, be it remembered, do not really leave to the States power to deal with corporate wealth in business. Actual experience has shown that the States are wholly powerless to deal with this subject; and any action or decision that deprives the nation of the power to deal with it. simply results in leaving the corporations absolutely free to work without any effective supervision whatever; and such a course is fraught with untold danger to the future of our whole system of government, and, indeed, to our whole civilization." 51

The foregoing doctrine is one quite different from the established doctrine of implied powers as developed by Marshall, a doctrine which will be discussed in the next chapter. That doctrine, as it will be seen, holds that from an expressly given federal power there may be implied those powers which are necessary and proper for effectively exercising it. The doctrine thus does not justify, under any circumstances, the assumption of a new power by the Federal Government. The Wilson-Roosevelt doctrine on the other hand asserts that a given subject not originally within the sphere of federal control, may, by mere change of circumstances, be brought within the federal field. Thus, to illustrate concretely, it might be argued according to the doctrine of implied powers that as implied in authority expressly granted to Congress to regulate foreign and interstate commerce, Congress might compel all corporations or individuals manufacturing commodities for foreign or interstate commerce to obtain a federal license, such a license to be granted upon such terms as Congress might see fit to dictate. According to the Wilson-Roosevelt doctrine, however, it could be argued that the control of manufacturing is not expressly denied the Federal Government nor expressly placed within the exclusive control of the States, and that, under existing industrial conditions it being of federal importance that those manufacturing concerns, or certain of them, should be regulated, and the States being incompetent to furnish the necessary regulation, therefore, the Federal Government has the power.

51 Speech at the dedication of the Pennsylvania capitol at Harrisburg.

Here, it will be seen, there is no resort whatever to the commerce clause, or to any other express grant of power. The doctrine is thus one which in the absence of express prohibition in the Constitution will support the assumption by the Federal Government of any power whatsoever if there be fair ground for holding that regulation is needed and that the States are not able to furnish it.

In the very recent case of Kansas v. Colorado,52 decided May 13, 1907, substantially this Wilson doctrine was urged upon the court, the argument being, as summarized by Justice Brewer that: "All legislative power must be vested in either the State or the National Government, no legislative powers belong to a state government other than those which affect solely the internal affairs of that State; consequently all powers which are national in their scope must be found vested in the Congress of the United States."

In refutation of this argument Justice Brewer says: "But 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 Amendments, for otherwise there would be an instrument granting certain specified things made operative 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 present, disclosed the widespread 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 necessary, 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 granted. 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 Constitution, nor prohibited to it by the States, are reserved 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 the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This Article X is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning."

52 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.