496
Interpreting and Preserving the Constitution
which favors the States in cases involving the scope of Federal power.
Since the earliest days of the American republic, there has been considerable concern that the Federal government, through a broad interpretation of its powers, might swallow up the reserved powers of the States.
Many of the powers delegated by the States to Congress, for example,
are expressed in general terms and are susceptible to conflicting interpretations, most especially when the implied or ‘‘necessary and proper’’
powers are added to expand the enumerated power. As we saw earlier,
the power of Congress ‘‘to regulate commerce among the several States’’
is open to a wide variety of interpretations. Does the word ‘‘regulate’’ include the right to prohibit? Does the word ‘‘commerce’’ mean just the
goods themselves, or does it include as well the environment in which
commerce moves, such as waterways or the airspace above a State? Does
‘‘commerce’’ include manufacturing, mining, and other activities prior to
the time the goods are shipped? Does it include agriculture before harvest? Does it include individuals traveling from one State to another to
visit relatives? Is the commerce power an exclusive power, or may the
States in the absence of Federal laws regulate commerce passing through
their territory?
These are the kinds of difficult issues that have confronted the Supreme Court from the beginning, often requiring the judges to define the
limits of power. If the powers are defined broadly, the Federal government tends to benefit. A narrow definition restricting the scope of a Federal power usually works to the advantage of the States. Very early in
our history, States’ Rightists in the Republican-Democratic Party, led by
Thomas Jefferson, accused Chief Justice Marshall and many of the Associate Justices serving on the Court with him of a federal bias. They favored
‘‘strict’’ construction of the Constitution, whereas Marshall and other
Federalists advocated a ‘‘loose’’ construction. The proper rule of interpretation, wrote St. George Tucker of Virginia in his American edition
of Blackstone, was to interpret the Constitution strictly: ‘‘it is to be construed strictly, in all cases, where the antecedent rights of a State may be
drawn into question.’’ That is to say, although the Constitution should
not necessarily be interpreted narrowly in all respects, it should be strictly
construed in those instances where the rights of the States were at stake
and a power previously exercised by the State governments was in danger