of the federal
courts. From a legal viewpoint this was a change of great importance. To
the general student of constitutional government, however, it is less
significant than others presently to be mentioned.

Right here it may be proper to notice a new theory of construction of
the Constitution, not yet accepted but strenuously urged and containing
enormous potentialities. This is the "doctrine of sovereign and inherent
power," i.e., the doctrine that powers of national scope for whose
exercise no express warrant is found in the Constitution are
nevertheless to be implied as inherent in the very fact of sovereignty.
This is a very different thing from the famous doctrine of implied
powers developed by Chief Justice Marshall--that all powers will be
implied which are suitable for carrying into effect any power expressly
granted. It is a favorite theory of what may be termed the Roosevelt
school. They consider that it is rendered necessary by the discovery of
fields suitable for legislative cultivation, lying outside the domain of
state power but not within the scope of any express grant of power to
the nation. As practical men they abhor the existence of such a
constitutional no man's land as nature abhors a vacuum.

During the presidency of Mr. Roosevelt a determined effort was made by
the representatives of the Administration[1] to secure the recognition
by the Supreme Court of the doctrine of sovereign and inherent power. It
was claimed in the brief filed by the Attorney General and Solicitor
General that the doctrine had already been applied by the Court in the
Legal Tender cases.[2] The effort failed, however, the Court declaring
that any such power, if necessary to the nation, must be conferred
through constitutional amendment by the people, to whom all powers not
granted had been expressly reserved by the Tenth Amendment.

[Footnote 1: In _Kansas v. Colorado_, 206 U.S., 46.]

[Footnote 2: Bryce makes a statement to the same effect. "The American
Commonwealth," Vol. I, p. 383.]

A method by which the federal power and jurisdiction have been much
extended has been the occupation by Congress, through legislation of an
exclusive character, of fields where the states had exercised a
concurrent jurisdiction. A familiar example is found in federal
bankruptcy laws. Another and striking example is the so-called "Carmack
Amendment" of the federal Interstate Commerce law. The question of
liability for loss or damage to