916
Opinion of the Court
To complete the historical record, we must note that there is not only an absence of executive-commandeering statutes in the early Congresses, but there is an absence of them in our later history as well, at least until very recent years. The Government points to the Act of August 3, 1882, ch. 376, §§ 2, 4, 22 Stat. 214, which enlisted state officials "to take charge of the local affairs of immigration in the ports within such State, and to provide for the support and relief of such immigrants therein landing as may fall into distress or need of public aid"; to inspect arriving immigrants and exclude any person found to be a "convict, lunatic, idiot," or indigent; and to send convicts back to their country of origin "without compensation." The statute did not, however, mandate those duties, but merely empowered the Secretary of the Treasury "to enter into contracts with such State . . . officers as may be designated for that purpose by the governor of any State." (Emphasis added.)
The Government cites the World War I selective draft law that authorized the President "to utilize the service of any or all departments and any or all officers or agents of the United States and of the several States, Territories, and the District of Columbia, and subdivisions thereof, in the execution of this Act," and made any person who refused to comply
federal Constitution." C. Rossiter, Alexander Hamilton and the Constitution 199 (1964). More specifically, it is widely recognized that "The Federalist reads with a split personality" on matters of federalism. See D. Braveman, W. Banks, & R. Smolla, Constitutional Law: Structure and Rights in Our Federal System 198-199 (3d ed. 1996). While overall The Federalist reflects a "large area of agreement between Hamilton and Madison," Rossiter, supra, at 58, that is not the case with respect to the subject at hand, see Braveman, supra, at 198-199. To choose Hamilton's view, as Justice Souter would, is to turn a blind eye to the fact that it was Madison's—not Hamilton's—that prevailed, not only at the Constitutional Convention and in popular sentiment, see Rossiter, supra, at 44-47, 194, 196; 1 Records of the Federal Convention 366 (M. Farrand ed. 1911), but in the subsequent struggle to fix the meaning of the Constitution by early congressional practice, see supra, at 905-910.
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