latitudinarian conception of "the judicial power of the United States"
was voiced in Justice Brewer's opinion for the Court in Kansas _v._
Colorado.[3] But even when confined to "the legislative powers herein
granted," the doctrine is severely strained by Marshall's conception of
some of these as set forth in his McCulloch _v._ Maryland opinion: This
asserts that "the sword and the purse, all the external relations, and
no inconsiderable portion of the industry of the nation, are intrusted
to its government";[4] he characterizes "the power of making war," of
"levying taxes," and of "regulating commerce" as "great, substantive and
independent powers";[5] and the power conferred by the "necessary and
proper" clause embraces, he declares, "all [legislative] means which are
appropriate" to carry out "the legitimate ends" of the Constitution,
unless forbidden by "the letter and spirit of the Constitution."[6] Nine
years later, Marshall introduced what Story in his Commentaries labels
the concept of "resulting powers," those which "rather be a result from
the whole mass of the powers of the National Government, and from the
nature of political society, than a consequence or incident of the
powers specially enumerated."[7] Story's reference is to Marshall's
opinion in American Insurance Company _v._ Canter,[8] where the latter
says, that "the Constitution confers absolutely on the government of the
Union, the powers of making war, and of making treaties; consequently,
that government possesses the power of acquiring territory, either by
conquest or by treaty."[9] And from the power to acquire territory, he
continues, arises as "the inevitable consequence" the right to govern
it.[10] Subsequently, powers have been repeatedly ascribed to the
National Government by the Court on grounds which ill accord with the
doctrine of enumerated powers: the power to legislate in effectuation of
the "rights expressly given, and duties expressly enjoined" by the
Constitution;[11] the power to impart to the paper currency of the
Government the quality of legal tender in the payment of debts;[12] the