Controversial Books | Page 518

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