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Although this constitutional mode of restraining the encroachments of the general government, was thus early and and clearly pointed out by Mr. Madison, an effort has been made to substitute for it what has been called a rigid rule of construction, which would inhibit the exercise of all powers not plainly delegated, or that were not obviously necessary and proper as means, to their execution. A government like ours of divided powers, must necessarily give great importance to a proper system of construction, but it is perfectly clear that no system of the kind, however perfect, can prescribe bounds to the encroachment of power. They constitute in fact, but an appeal by the minority to the justice of the majority, and if such appeals were sufficient to restrain the avarice, and ambition of those, who are invested with power, then would a system of technical construction be sufficient. But on such a supposition, reason and justice might alone be relied on, without the aid of any constitutional or artificial restraint whatever. Universal experience, in all ages and countries however, teaches that power can only be met by power, and not by reason and justice, and that all restrictions on authority, unsustained by an equal antagonist power, must forever prove wholly insufficient in practice. Such also has been the decisive proof of our own short experience. From the beginning, a great and powerful minority gave every force, of which it was susceptible, to construction, as a means of restraining a majority of Congress to the exercise of its proper powers; and though that original minority, through the force of circumstances, has had the advantage of becoming a majority; and to possess, in consequence, the administration of the general government, during the greater portion of its existence, yet we this day witness, under these most favourable circumstances, an extension of the powers of the general government in spite of mere construction, to a point so extreme as to leave few powers to the state worth possessing. In fact, that very power of construction, on which reliance is placed, to preserve the rights of the states, has been wielded, as it ever will and must be if not checked, to destroy those rights. If the minority has a right to select its rule of construction, a majority will exercise the same, but with this striking difference, that the power of the former will be a mere nullity, against that of the latter. But that protection, which the minor interest ever fails to find, in any technical system of construction, where alone in practice it has heretofore been sought, it may find in the reserved rights of the states themselves, if they be properly called into action; and there only will it ever be found of sufficient efficacy. The constitutional power to protect their rights as members of the
