Commentary by Jon Roland
The decision in this case is contradicted by the very words of the opinion:
Courts of this kind were not created by the Constitution, nor does the Constitution invest them with any criminal jurisdiction. Even the powers of an express character given to Congress upon the subject embrace only a limited class of well known offences. Congress may provide for the punishment of counterfeiting the securities and current coin of the United States, and may pass laws to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. Treason is defined by the Constitution, but it has never been decided that the offender could be tried and punished for the offence until some court is vested with the power by an act of Congress.
Implied power in Congress to pass laws to define and punish offences is also derived from the constitutional grant to Congress to declare war, to raise and support armies, to provide and maintain a navy, and to make rules for the land and naval forces, and to provide for organizing, arming, and disciplining the militia and for governing such parts of them as may be employed in the public service. Like implied authority is also vested in Congress from the power conferred to exercise exclusive jurisdiction over places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings, and from the clause empowering Congress to pass all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States, or any department or officer thereof.
The court overlooked that for the Founders "criminal" powers were the powers to deprive a person of life, limb, liberty, property, or privileges, and that punitive sanctions depriving a person of only property or privileges were not considered "criminal" or "penal". Such "civil" penalties might be imposed to enforce the exercise of powers to regulate, tax, promote, or, in this case, to pay pensions, but such powers do not imply the power to impose deprivations of life, limb, or liberty, which would require a separate, express grant of such powers. This can be seen in the Kentucky Resolutions of 1798.
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