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Published online by Cambridge University Press: 02 September 2013
When the Constitution of the United States was pending for ratification, its supporters, in their public utterances, were disposed to minimize the powers which it conferred. This was the general tone of the Federalist. How far they might reach, indeed, was a question that only the future could fully answer. A set of traditions and usages and precedents must first grow up, under the Constitution, but outside of it.
Every one saw that much would depend on the views of Washington. Every one looked forward with confidence to his unanimous election as the first President. Every one saw that it would be left to him to decide whether he should be reelected. His refusal to stand for a third term founded a usage that has become as controlling as an express constitutional provision.
Washington took care that the judiciary should be composed of men who believed that Congress was not confined to the exercise of the powers expressly granted to it.
1 Osborne v. Mobile, 16 Wall. 479.
2 Leloup v. Mobile, 127 U. S. 640.
3 Springer v. U. S., 102 U. S. 586, 602.
4 Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 579; 158 U. S. 601.
5 Kohl v. United States, 91 U. S. 307.
6 U. S. Rev. Stat. 4580; 25 Stat. 873; Durland v. United State 161 U. S. 306.
7 U. S. v. Southern Railway, October Term, 1911.
8 South Carolina v. United States, 199 U. S. 437.
9 Hart v. Boston, Hartford & Erie R. R. Co., 40 Conn. 524, 530.
10 26 U. S. Stat. 209, Sec. 4.
11 Oceanic Navigation Co. v. Stranahan, 214 U. S. 321, 339; United States v. Grimaud, 220 U. S. 506.
12 Fong Yue Ting v. United States, 149 U. S. 698; United States v. Ju Toy, 198 U. S. 253.
13 27 U. S. Stat. 110; 28 Stat. 363; 30 Stat. 1151.
14 Swift v. Tyson, 16 Peters 1, 19.
15 Kansas v. Colorado, 206 U. S. 46, 83.
16 See article on The Extent of the Judicial Power of the United States, in the Yale Law Journal for November, 1908.
17 36 U. S. Stat. 539, §17.
18 Geofroy v. Riggs, 133 U. S. 258, 266.
19 34 U. S. Stat. 674, 1260, 768.
20 Frank J. Goodnow, Social Reform and the Constitution.
21 Union Transit Co. v. Kentucky, 199 U. S. 194, 202, 211.
22 Farrand, Records of the Federal Convention, III, 483, 379.
23 Oklahoma v. Kansas Gas Co., 221 U. S. 229, 255.
24 Farrand, Records of the Federal Convention, III, 380.
25 Farrand, III, 163.
26 Farrand, Records of the Federal Convention, III, 85.
27 26. 409.
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