chapter 36: power to borrow money and regulate commerce

§ 1050. Having finished this examination of the power of taxation, and of the accompanying restrictions and prohibitions, the other powers of congress will be now examined in the order, in which they stand in the eighth section.

§ 1051. The next, is the power of congress "to borrow money on the credit of the United States." This power seems indispensable to the sovereignty and existence of a national government. Even under the confederation this power was expressly delegated. [1] The remark is unquestionably just, that it is a power inseparably connected with that of raising a revenue, and with the duty of protection, which that power imposes upon the general government. Though in times of profound peace it may not be ordinarily necessary to anticipate the revenues of a state; yet the experience of all nations must convince us, that the burthen and expenses of one year, in time of war, may more than equal the ordinary revenue of ten years. Hence, a debt is almost unavoidable, when a nation is plunged into a state of war. The least burthensome mode of contracting a debt is by a loan. Indeed, this recourse becomes the more necessary, because the ordinary duties upon importations are subject to great diminution and fluctuations in times of war; and a resort to direct taxes for the whole supply would, under such circumstances, become oppressive and ruinous to the agricultural interests of the country. [2] Even in times of peace exigencies may occur, which render a loan the most facile, economical, and ready means of supply, either to meet expenses, or to avert calamities, or to save the country from an undue depression of its staple productions. The government of the United States has, on several occasions in times of profound peace, obtained large loans, among which a striking illustration of the economy and convenience of such arrangements wilt be found in the creation of stock on the purchase of Louisiana. The power to borrow money by the United States cannot (as has been already seen) in any way be controlled, or interfered with by the states. The granting of the power is incompatible with any restraining or controlling power; and the declaration of supremacy in the constitution is a declaration, that no such restraining or controlling power shall be exercised. [3]

§ 1052. The next power of congress is, "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

§ 1053. The want of this power (as has been already seen) was one of the leading defects of the confederation, and probably, as much as any one cause, conduced to the establishment of the constitution. [4] It is a power vital to the prosperity of the Union; and without it the government would scarcely deserve the name of a national government; and would soon sink into discredit and imbecility. [5] It Would stand, as a mere shadow or sovereignty, to mock our hopes, and involve us in a common ruin.

§ 1054. The oppressed and degraded state of commerce, previous to the adoption of the constitution, can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by a want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent, as to render that power in a great degree useless. Those, who felt the injury arising from this state of things, and those, who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It is not, therefore, matter of surprise, that the grant should be as extensive, as the mischief, and should comprehend all foreign commerce, and all commerce among the states. [6]

§ 1055. But this subject has been already so much discussed, and the reasons for conferring the power so fully. developed, that it seems unnecessary to dwell farther upon its importance and necessity. [7] In the convention there does not appear to have been any considerable (if, indeed, there was any) opposition to the grant of the power. It was reported in the first draft of the constitution exactly, as it now stands, except that the words, "and with the Indian tribes," were afterwards added; and it passed without a division. [8]

§ 1056. In considering this clause of the constitution several important inquiries are presented. In the first place, What is the natural import of the terms; in the next place, how far the power is exclusive of that of the states; in the third place, to what purposes and for what objects the power may be constitutionally applied; and in the fourth place, what are the true nature and extent of the power to regulate commerce with the Indian tribes.

§ 1057. In the first place, then, what is the constitutional meaning of the words, "to regulate commerce;" for the constitution being (as has been aptly said) one of enumeration, and not of definition, it becomes necessary, in order to ascertain the extent of the power, to ascertain the meaning of the words. [9] The power is to regulate; that is, to prescribe the rule. by which commerce is to be governed. [10] The subject to be regulated is commerce. Is that limited to traffic, to buying and selling, or the interchange of commodities? Or does it comprehend navigation and intercourse? If the former construction is adopted, then a general term applicable to many objects is restricted to one of its significations. If the latter, then a general term is retained in its general sense. To adopt the former, without some guiding grounds furnished by the context, or the nature of the power, would be improper. The words being general, the sense must be general also, and embrace all subjects comprehended under them, unless there be some obvious mischief or repugnance to other clauses to limit them. In the present case there is nothing to justify such a limitation. Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation; which shall be silent on the admission of the vessels of one nation into the ports of another; and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or barter. [11]

§ 1058. If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing, what shall constitute American vessels, or requiring, that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government; it has been exercised with the consent of all America; and it has been always understood to be a commercial regulation. The power over navigation, and over commercial intercourse, was one of the primary objects, for which the people of America adopted their government; and it is impossible, that the convention should not so have understood the word "commerce," as embracing it. [12] Indeed, to construe the power, so as to impair its efficacy, would defeat the very object, for which it was introduced into the constitution; [13] for there cannot be a doubt, that to exclude navigation and intercourse from its scope would be to entail upon us all the prominent defects of the confederation, and subject the Union to the ill-adjusted systems of rival states, and the oppressive preferences of foreign nations in favour of their own navigation. [14]

§ 1059. The very exceptions found in the constitution demonstrate this; for it would be absurd, as well as useless, to except from a granted power that, which was not granted, or that, which the words did not comprehend. There are plain exceptions in the constitution from the power over navigation, and plain inhibitions to the exercise of that power in a particular way. Why should these be made, if the power itself was not understood to be granted? The clause already cited, that no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another, is or this nature. This clause cannot be understood, as applicable to those laws only, which are passed for purposes of revenue, because it is expressly applied to commercial regulations; and the most obvious preference, which can be given to one port over another, relates to navigation. But the remaining part of the sentence directly points to navigation. "Nor shall vessels, bound to or from one state, be obliged to enter, clear, or pay duties in another." [15] In short, our whole system for the encouragement of navigation in the coasting trade and fisheries, is exclusively founded upon this supposition. Yet no one has ever been bold enough to question the constitutionality of the laws, creating this system. [16]

§ 1060. Foreign and domestic intercourse has been universally understood to be within the reach of the power. How, otherwise, could our systems of prohibition and non-intercourse be defended? From what other source has been derived the power of laying embargoes in a time of peace, and without any reference to war, or its operations? Yet this power has been universally admitted to be constitutional, even in times of the highest political excitement. And although the laying of an embargo in the form of a perpetual law was contested, as unconstitutional, at one period of our political history, it was so, not because an embargo was not a regulation of commerce, but because a perpetual embargo was an annihilation, and not a regulation of commerce. [17] It may, therefore, be safely affirmed, that the terms of the constitution have at all times been understood to include a power over navigation, as well as trade, over intercourse, as well as traffic; [18] and, that, in the practice of other countries, and especially in our own, there has been no diversity of judgment or opinion. During our whole colonial history, this was acted upon by the British parliament, as an uncontested doctrine. That government regulated not merely our traffic with foreign nations, but our navigation, and intercourse, as unquestioned functions of the power to regulate commerce. [19]

§ 1061. This power the constitution extends to commerce with foreign nations, and among the several states, and with the Indian tribes. In regard to foreign nations, it is universally admitted, that the words comprehend every species of commercial intercourse. No sort of trade or intercourse can be carried on between this country and another, to which it does not extend. Commerce, as used in the constitution, is a unit, every part of which is indicated by the term. If this be its admitted meaning in its application to foreign nations, it must carry the same meaning throughout the sentence. [20] The next words are "among the several states." The word "among" means intermingled with. A thing, which is among others, is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior. It does not, indeed, comprehend any commerce, which is purely internal, between man and man in a single state, or between different parts of the same state, and not extending to, or affecting other states. Commerce among the states means, commerce, which concerns more states than one. It is not an apt phrase to indicate the mere interior traffic of a single state. The completely internal commerce of a state may be properly considered, as reserved to the state itself. [21]

§ 1062. The importance of the power of regulating commerce among the states, for the purposes of the Union, is scarcely less, than that of regulating it with foreign states. [22] A very material object of this power is the relief of the states, which import and export through other states, from the levy of improper contributions on them by the latter. If each state were at liberty to regulate the trade between state and state, it is easy to foresee, that ways would be found out to load the articles of import and export, during their passage through the jurisdiction, with duties, which should fail on the makers of the latter, and the consumers of the former. [23] The experience of the American states during the confederation abundantly establishes, that such arrangements could be, and would be made under the stimulating influence of local interests, and the desire of undue gain. [24] Instead of acting as a nation in regard to foreign powers, the states individually commenced a system of restraint upon each other, whereby the interests of foreign powers were promoted at their expense. When one state imposed high duties on the goods or vessels of a foreign power to countervail the regulations of such powers, the next adjoining states imposed lighter duties to invite those articles into their ports, that they might be transferred thence into the other states, securing the duties to themselves. This contracted policy in some of the states was soon counteracted by others. Restraints were immediately laid on such commerce by the suffering states; and thus a state of affairs disorderly and unnatural grew up, the necessary tendency of which was to destroy the Union itself. [25] The history of other nations, also, furnishes the same admonition. In Switzerland, where the union is very slight, it has been found necessary to provide, that each canton shall be obliged to allow a passage to merchandise through its jurisdiction into other cantons without an augmentation of tolls. In Germany, it is a law of the empire, that the princes shall not lay tolls on customs or bridges, rivers, or passages, without the consent or the emperor and diet. But these regulations are but imperfectly obeyed; and great public mischiefs have consequently followed. [26] Indeed, without this power to regulate commerce among the states, the power of regulating foreign commerce would be incomplete and ineffectual. [27] The very laws of the Union in regard to the latter, whether for revenue, for restriction, for retaliation, or for encouragement or domestic products or pursuits, might-be evaded at pleasure, or rendered impotent. [28] In short, in a practical view, it is impossible to separate the regulation of foreign commerce and domestic commerce among the states from each other. The same public policy applies to each; and not a reason can be assigned for confiding the power over the one, which does not conduce to establish the propriety of conceding the power over the other. [29]

§ 1063. The next inquiry is, whether this power to regulate commerce is exclusive or the same power in the states, or is Concurrent with it. [30] It has been settled upon the most solemn deliberation, that the power is exclusive in the government of the United States. [32] The reasoning, upon which this doctrine is founded, is to the following effect. 'The power to regulate commerce is general and unlimited in its terms. The full power to regulate a particular subject implies the whole power, and leaves no residuum . A grant of the whole is incompatible with the existence of a right in another to any part of it. A grant of a power to regulate necessarily excludes the action of all others, who would perform the same operation on the same thing. Regulation is designed to indicate the entire result, applying to those parts, which remain as they were, as well as to those, which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing, what the regulating power designs to have unbounded, as that, on which it has operated. [33]

§ 1064. The power to regulate commerce is not at all like that to lay taxes. The latter may well be concurrent, while the former is exclusive, resulting from the different nature of the two powers. The power of congress in laying taxes is not necessarily, or naturally inconsistent with that of the states. Each may lay a tax on the same property, without interfering with the action of the other; for taxation is but taking small. portions from the mass of property, which is susceptible of almost infinite division. In imposing taxes for state purposes, a state is not doing, what congress is empowered to do. Congress is not empowered to tax for those purposes, which are within the exclusive province of the states. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a state proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power, which is granted to congress; and is doing the very thing, which congress is authorized to do. There is no analogy, then, between the power of taxation, and the power of regulating commerce. [34]

§ 1065. Nor can any power be inferred in the states to regulate commerce from other clauses in the constitution, or the acknowledged rights exercised by the states. The constitution has prohibited the states from laying any impost or duty on imports or exports; but this does not admit, that the state might otherwise have exercised the power, as a regulation of commerce. The laying of such imposts and duties may be, and indeed often is used, as a mere regulation of commerce, by governments possessing that power. [35] But the laying of such imposts and duties is as certainly, and more usually, a right exercised as a part of the power to lay taxes; and with this latter power the states are clearly entrusted. So, that the prohibition is an exception from the acknowledged power of the state to lay taxes, and not from the questionable power to regulate commerce. Indeed, the constitution treats these as distinct and independent powers. The same remarks apply to a duty on tonnage. [36]

§ 1066. Nor do the acknowledged powers of the states over certain subjects, having a connexion with commerce, in any degree impugn this reasoning. These powers are entirely distinct in their nature from that to regulate commerce; and though the same means may be resorted to, for the purpose of carrying each of these powers into effect, this by no just reasoning furnishes any ground to assert, that they are identical. [37] Among these, are inspection laws, health laws, laws regulating turnpikes, roads, and ferries, all of which, when exercised by a state, are legitimate, arising from the general powers belonging to it., unless so far as they conflict with the powers delegated to congress. [38] They are not so much regulations of commerce, as of police; and may truly be said to belong, if at all to commerce, to that which is purely internal. The pilotage laws of the states may fall under the same description. But they have been adopted by congress, and without question are controllable by it. [39]

§ 1067. The reasoning, by which the power given to congress to regulate commerce is maintained to be exclusive, has not been of late seriously controverted; and it seems to have the cheerful acquiescence of the learned tribunals of a particular state, one of whose acts brought it first under judicial examination. [40]

§ 1068. The power to congress, then, being exclusive, no state is at liberty to pass any laws imposing a tax upon importers, importing goods from foreign countries, or from other states. It is wholly immaterial, whether the tax be laid on the goods imported, or on the person of the importer. In each case, it is a restriction of the right of commerce, not conceded to the states. As the power of congress to regulate commerce reaches the interior of a state, [41] it might be capable of authorizing the sale of the articles, which it introduces. Commerce is intercourse; and one of its most ordinary ingredients is traffic. It is inconceivable, that the power to authorize traffic, when given in the most comprehensive terms, with the intent, that its efficacy should be complete, should cease at the point, when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize the sale of the thing imported? Sale is the object of importation; and it is an essential ingredient of that intercourse, of which importation constitutes apart. As congress has the right to authorize importation, it must have a right to authorize the importer to sell. What would be the language of a foreign government, which should be informed, that its merchants after importation were forbidden to sell the merchandize imported? What answer could the United States give to the complaints and just reproaches, to which such extraordinary conduct would expose them? No apology could be received, or offered. Such a state of things would annihilate commerce. It is no answer, that the tax may be moderate; for, if the power exists in the states, it may be carried to any extent they may choose. If it does not exist, every exercise of it is, pro tanto , a violation of the power of congress to regulate commerce. [42]

§ 1069. How far any state possesses the power to authorize an obstruction of any navigable stream or creek, in which the tide ebbs and flows, within its territorial limits, as by authorizing the erection of a dam across it, has been a subject of much recent discussion. If congress, in regulating commerce, should pass any act, the object of which should be to control state legislation over such navigable streams or creeks, there would be little difficulty in saying, that a state law in conflict with such an act would be void. But if congress has passed no general or special act on the subject, the invalidity of such a state act must be placed entirely upon its repugnancy to the power to regulate commerce in its dormant Mate. Under such circumstances, it would be difficult to affirm, that the sovereignty of a state, acting on subjects within the reach of other powers, beside that of regulating commerce, and which belonged to its general territorial jurisdiction, would be intercepted by the exclusive power of commerce, unexercised by congress, over the same subject matter. The value of the property on the banks of such streams and creeks may be materially enhanced by excluding the waters from them and the adjacent low and marshy grounds, and the health of the inhabitants be improved. Measures calculated to produce these objects, provided they do not come into collision with the power of the general government, are undoubtedly within those, which are reserved to the states. [43]

§ 1070. In the next place, to what extent, and for what objects and purposes the power to regulate commerce may be constitutionally applied.

§ 1071. And first, among the states. It is not doubted, that it extends to the regulation of navigation, and to the coasting trade and fisheries, within, as well as without any state, wherever it is connected with the commerce or intercourse with any other state, or with foreign nations. [44] It extends to the regulation and government of seamen on board of American ships; and to conferring privileges upon ships built and owned in the United States in domestic, as well as foreign trade. [45] It extends to quarantine laws, and pilotage laws, and wrecks of the sea. [46] It extends, as well to the navigation of vessels engaged in carrying passengers, and whether steam vessels or of any other description, as to the navigation of vessels engaged in traffic and general coasting business. [47] It extends to the laying of embargoes, as well on domestic, as on foreign voyages. [48] It extends to the construction of light-houses, the placing of buoys and beacons, the removal of obstructions to navigation in creeks, rivers, sounds, and bays, and the establishment of securities to navigation against the inroads of the ocean. It extends also to the designation of particular port or ports of entry and delivery for the purposes of foreign commerce. [49] These powers have been actually exerted by the national government under a system of laws, many of which commenced with the early establishment of the constitution; and they have continued unquestioned unto our day, if not to the utmost range of their reach, at least to that of their ordinary application. [50]

§ 1072. Many of the like powers have been applied in the regulation of foreign commerce. The commercial system of the United States has also been employed sometimes for the purpose of revenue; sometimes for the purpose of prohibition; sometimes for the purpose of retaliation and commercial reciprocity; sometimes to lay embargoes; [51] sometimes to encourage domestic navigation, and the shipping and mercantile interest by bounties, by discriminating duties, and by special preferences and privileges; [52] and sometimes to regulate intercourse with a view to mere political objects, such as to repel aggressions, increase the pressure of war, or vindicate the rights of neutral sovereignty. In all these cases, the right and duty have been conceded to the national government by the unequivocal voice of the people.

§ 1073. A question has been recently made, whether congress have a constitutional authority to apply the power to regulate commerce for the purpose of encouraging and protecting domestic manufactures. It is not denied, that congress may, incidentally, in its arrangements for revenue, or to countervail foreign restrictions, encourage the growth of domestic manufactures. But it is earnestly and strenuously insisted, that, under the colour of regulating commerce, congress have no right permanently to prohibit any importations, or to tax any unreasonably for the purpose of securing the home market to the domestic manufacturer, as they thereby destroy the commerce entrusted to them to regulate, and foster an interest, with which they have no constitutional power to interfere. [54] This opinion constitutes the leading doctrine of several states in the Union at the present moment; and is maintained, as vital to the existence of the Union. On the other hand, it is as earnestly and strenuously maintained, that congress does possess the constitutional power to encourage and protect manufactures by appropriate regulations of commerce; and that the opposite opinion is destructive of all the purposes of the Union, and would annihilate its value.

§ 1074. Under such circumstances, it becomes indispensable to review the grounds, upon which the doctrine of each party is maintained, and to sift them to the bottom; since it cannot be disguised, that the controversy still agitates all America, and marks the divisions of party by the strongest lines, both geographical and political, which have ever been seen since the establishment of the national government.

§ 1075. The reasoning, by which the doctrine is maintained, that the power to regulate commerce cannot be constitutionally applied, as a means, directly to encourage domestic manufactures, has been in part already adverted to in considering the extent of the power to lay taxes. It is proper, however, to present it entire in its present connexion. It is to the following effect. — The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised. beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when. laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states. It is notorious, that, in the convention, an attempt was made to introduce into the constitution a power to encourage manufactures; but it was withheld. [55] In stead of granting the power to congress, permission was given to the states to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burthen on those, who were to be benefited. It is true, that congress may, incidentally, when laying duties for revenue, consult the other interests of the country. They may so arrange the details, as indirectly to aid manufactures. And this is the whole extent, to which congress has ever gone until. the tariffs, which have given rise to the present controversy. The former precedents of congress are not, even if admitted to be authoritative, applicable to the question now presented. [56]

§ 1076. The reasoning of those, who maintain the doctrine, that congress has authority to apply the power to regulate commerce to the purpose of protecting and encouraging domestic manufactures, is to the following effect. The power to regulate commerce, being in its terms unlimited, includes all means appropriate to the end, and all means, which, have been usually exerted under the power. No one can doubt or deny, that a power to regulate trade involves a power to tax it. It is a familiar mode, recognised in the practice of all nations, and was known and admitted by the United States, while they were colonies, and has ever since been acted upon without opposition or question. The American colonies wholly denied the authority of the British parliament to tax them, except as a regulation of commerce; but they admitted this exercise of power, as legitimate and unquestionable. The distinction was with difficulty maintained in practice between laws for the regulation of commerce by way of taxation, and laws, which were made for mere monopoly, or restriction, when they incidentally produced revenue. [57] And it is certain, that the main and admitted object of parliamentary regulations. of trade with the colonies was the encouragement of manufactures in Great-Britain. Other nations have, in like manner, for like purposes, exercised the like power. So, that there is no novelty in the use of the power, and no stretch in the range of the power.

§ 1077. Indeed, the advocates of the opposite doctrine admit, that the power may be applied, so as incidentally to give protection to manufactures, when revenue is the principal design; and that it may also be applied to countervail the injurious regulations of Foreign powers, when there is no design of revenue. These concessions admit, then, that the regulations of commerce are not wholly for purposes of revenue, or wholly confined to the purposes of commerce, considered per se. If this be true, then other objects may enter into commercial regulations; and if so, what restraint is there, as to the nature or extent of the objects, to which they may reach, which does not resolve itself into a question of expediency and policy? It may be admitted, that a power, given for one purpose, cannot be perverted to purposes wholly opposite, or beside its legitimate scope. But what perversion is there in applying a power to the very purposes, to which it has been usually applied? Under such circumstances, does not the grant of the power without restriction concede, that it may be legitimately applied to such purposes? If a different intent had existed, would not that intent be manifested by some corresponding limitation?

§ 1078. Now it is well known, that in commercial and manufacturing nations, the power to regulate commerce has embraced practically the encouragement of manufactures. It is believed, that not a single exception can be named. So, in an especial manner, the power has always been understood in Great-Britain, from which we derive our parentage, our laws, our language, and our notions upon commercial subjects. Such was confessedly the notion of the different states in the Union under the confederation, and before the formation of the present constitution. One known object of the policy of the manufacturing states then was, the protection and encouragement of their manufactures by regulations of commerce. [58] And the exercise of this power was a source of constant difficulty and discontent; not because improper of itself; but because it bore injuriously upon the commercial arrangements of other states. The want of uniformity in the regulations of commerce was a source of perpetual strife and dissatisfaction, of inequalities, and rivalries, and retaliations among the states. When the constitution was framed, no one ever imagined, that the power of protection of manufactures was to be taken away from all the states, and yet not delegated to the Union. The very suggestion would of itself have been fatal to the adoption of the constitution. The manufacturing states would never have acceded to it upon any such terms; and they never could, without the power, have safely acceded to it; for it would have sealed their ruin. The same reasoning would apply to the agricultural states; for the regulation of commerce, with a view to encourage domestic agriculture, is just as important, and just as vital to the interests of the nation, and just as much an application of the power, as the protection or encouragement of manufactures. It would have been strange indeed, if the people of the United States had been solicitous solely to advance and encourage commerce, with a total disregard of the interests of agriculture and manufactures, which had, at the time of the adoption of the constitution, an unequivocal preponderance throughout the Union. It is manifest from contemporaneous documents, that one object of the constitution was, to encourage manufactures and agriculture by this very use of the power. [59]

§ 1079. The terms, then, of the constitution are sufficiently large to embrace the power; the practice of other nations, and especially of Great-Britain and of the American states, has been to use it in this manner; and this exercise of it was one of the very grounds, upon which the establishment of the constitution was urged and vindicated. The argument, then, in its favour would seem to be absolutely irresistible under this aspect. But there are other very weighty considerations, which enforce it.

§ 1080. In the first place, if congress does not possess the power to encourage domestic manufactures by regulations of commerce, the power is annihilated for the whole nation. The states are deprived of it. They have made a voluntary surrender of it; and yet it exists not in the national government. It is then a mere nonentity. Such a policy, voluntarily adopted by a free people, in subversion of some of their dearest rights and interests, would be most extraordinary in itself, without any assignable motive or reason for so great a sacrifice, and utterly without example in the history of the world. No man can doubt, that domestic agriculture and manufactures may be most essentially promoted and protected by regulations of commerce. No man can doubt, that it is the most usual, and generally the most efficient means of producing those results. No man can question, that in these great objects the different states of America have as deep a stake, and as vital interests, as any other nation. Why, then, should the power be surrendered and annihilated? It would produce the most serious mischiefs at home; and would secure the most complete triumph over us by foreign nations. It would introduce and perpetuate national debility, if not national ruin. A foreign nation might, as a conqueror, impose upon us this restraint, as a badge of dependence, and a sacrifice of sovereignty, to subserve its own interests; but that we should impose it upon ourselves, is inconceivable. The achievement of our independence was almost worthless, if such a system was to be pursued. It would be in effect a perpetuation of that very system of monopoly, of encouragement of foreign manufactures, and depression of domestic industry, which was so much complained of during our colonial dependence; and which kept all America in a state of poverty, and slavish devotion to British interests. Under such circumstances, the constitution would be established, not for the purposes avowed in the preamble, but for the exclusive benefit and advancement of foreign nations, to aid their manufactures, and sustain their agriculture. Suppose cotton, rice, tobacco, wheat, corn, sugar, and other raw materials could be, or should hereafter be, abundantly produced in foreign countries, under the fostering hands of their governments, by bounties and commercial regulations, so as to become cheaper with such aids than our own; are all our markets to be opened to such products without any restraint, simply because we may not want revenue, to the ruin of our products and industry? Is America ready to give every thing to Europe, without any equivalent; and take in return whatever Europe may choose to give, upon its own terms? The most servile provincial dependence could not do more evils. Of what consequence would it be, that the national. government could not tax our exports, if foreign governments might tax them to an unlimited extent, so as to favour their own, and thus to supply us with the same articles by the overwhelming depression of our own by foreign taxation? When it is recollected, with what extreme discontent and reluctant obedience the British colonial restrictions were enforced in the manufacturing and navigating states, while they were colonies, it is incredible, that they should be willing to adopt a government, Which should, or might entail upon them equal evils in perpetuity. Commerce itself would ultimately be as great a sufferer by such a system, as the other domestic interests. It would languish, if it did not perish. Let any man ask himself, if New-England, or the Middle states would ever have consented to ratify a constitution, which would afford no protection to their manufactures or home industry. If the constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?

§ 1081. It is idle to say, that with the consent of congress, the states may lay duties on imports or exports, to favour their own domestic manufactures. In the first place, if congress could constitutionally give such consent for such a purpose, which has been doubted; [60] they would have a fight to refuse such consent, and would certainly refuse it, if the result would be what the advocates of free trade contend for. In the next place, it would be utterly impracticable with such consent to protect their manufactures by any such local regulations. To be of any value they must be general, and uniform through the nation. This is not a matter of theory. Our whole experience under the confederation established beyond all controversy the utter local futility, and even the general mischiefs of independent state legislation upon such a subject. It furnished one of the strongest grounds for the establishment of the constitution. [61]

§ 1082. In the next place, if revenue be the sole legitimate object of an impost, and the encouragement of domestic manufactures be not within the scope of the power of regulating trade, it would follow, (as has been already hinted,) that no monopolizing or unequal regulations of foreign nations could be counteracted. Under such circumstances, neither the staple articles of subsistence, nor the essential implements for the public safety, could be adequately ensured or protected at home by our regulations of commerce. The duty might be wholly unnecessary for revenue; and incidentally, it might even check revenue. But, if congress may, in arrangements for revenue, incidentally and designedly protect domestic manufactures, what ground is there to suggest, that they may not incorporate this design through the whole system of duties, and select and arrange them accordingly? There is no constitutional measure, by which to graduate, how much shall be assessed for revenue, and how much for encouragement of home industry. And no system ever yet adopted has attempted, and in all probability none hereafter adopted will attempt, wholly to sever the one object from the other. The constitutional objection in this view is purely speculative, regarding only future possibilities.

§ 1083. But if it be conceded, (as it is,) that the power to regulate commerce includes the power of laying duties to countervail the regulations and restrictions of foreign nations, then, what limits are to be assigned to this use of the power? [62] If their commercial regulations, either designedly or incidentally, do promote their own agriculture and manufactures, and injuriously affect ours, why may not congress apply a remedy coextensive with the evil? If congress have, as cannot be denied, the choice of the means, they may countervail the regulations, not only by the exercise of the lex talionis in the same way, but in any other way conducive to the same end. If Great Britain by commercial regulations restricts the introduction of our staple products and manufactures into her own territories, and levies prohibitory duties, why may not congress apply the Same rule to her staple products and manufactures, and secure the same market to ourselves? The truth is, that as soon as the right to retaliate foreign restrictions or foreign policy by commercial regulations is admitted, the question, in what manner, and to what extent, it shall be applied, is a matter of legislative discretion, and not of constitutional authority. Whenever commercial restrictions and regulations shall cease all over the world, so far as they favour the nation adopting them, it will be time enough to consider, what America ought to do in her own regulations of commerce, which are designed to protect her own industry and counteract such favoritism. It will then become a question, not of power, but of policy. Such a state of things has never yet existed. In fact the concession, that the power to regulate commerce may embrace other objects, than revenue, or even than commerce itself, is irreconcilable with the foundation of the argument on the other side.

§ 1084. Besides; the power is to regulate commerce. And in what manner regulate it? Why does the power involve the right to lay duties? Simply, because it is a common means of executing the power. If so, why does not the same right exist as to all other means equally common and appropriate? Why does the power involve a right, not only to lay duties, but to lay duties for revenue , and not merely for the regulation and restriction of commerce, considered per se ? No other answer can be given, but that revenue is an incident to such an exercise of the power. It flows from, and does not create the power. It may constitute the motive for the exercise of the power, just as any other cause may; as for instance, the prohibition of foreign trade, or the retaliation of foreign monopoly; but it does not constitute the power.

§ 1085. Now, the motive of the grant of the power is not even alluded to in the constitution. It is not even stated, that congress shall have power to promote and encourage domestic navigation and trade. A power to regulate commerce is not necessarily a power to advance its interests. It may in given cases suspend its operations and restrict its advancement and scope. Yet no man ever yet doubted the right of congress to lay duties to promote and encourage domestic navigation, whether in the form of tonnage duties, or other preferences and privileges, either in the foreign trade, or coasting trade, or fisheries. [63] It is as certain, as any thing human can be, that the sole object of congress, in securing the vast privileges to American built ships, by such preferences, and privileges, and tonnage duties, was, to encourage the domestic manufacture of ships, and all the dependent branches of business. [64] It speaks out in the language of all their laws, and has been as constantly avowed, and acted on, as any single legislative policy ever has been. No one ever dreamed, that revenue constituted the slightest ingredient in these laws. They were purely for the encouragement of home manufactures, and home artisans, and home pursuits. Upon what grounds can congress constitutionally apply the power to regulate commerce to one great class of domestic manufactures, which does not involve the right to encourage all? If it be said, that navigation is a part of commerce, that is true. But a power to regulate navigation no more includes a power to encourage the manufacture of ships by tonnage duties, than any other manufacture. Why not extend it to the encouragement of the growth and manufacture of cotton and hemp for sails and rigging; of timber, boards, and masts; of tar, pitch, and turpentine; of iron and wool; of sheetings and shirtings; of artisans and mechanics, however remotely connected with it? There are many products of agriculture and manufactures, which are connected with the prosperity of commerce as intimately, as domestic ship building. If the one may be encouraged, as a primary motive in regulations of commerce, why may not the others? The truth is, that the encouragement of domestic ship building is within the scope of the power to regulate commerce, simply, because it is a known and ordinary means of exercising the power. It is one of many, and may be used like all others. according to legislative discretion. The motive to the exercise of a power can never form a constitutional objection to the exercise of the power.

§ 1086. Here, then, is a case of laying duties, an ordinary means used in executing the power to regulate commerce; how can it be deemed unconstitutional? If it be said, that the motive is not to collect revenue, what has that to do with the power? When an act is constitutional, as an exercise of a power, can it be unconstitutional from the motives, with which it is passed? If it can, then the constitutionality of an act must depend, not upon the power, but upon the motives of the legislature. It will follow, as a consequence, that the same act passed by one legislature will be constitutional, and by another unconstitutional. Nay, it might be unconstitutional, as well from its omissions as its enactments, since if its omissions were to favour manufactures, the motive would contaminate the whole law. Such a doctrine would be novel and absurd. It would confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law without an inquisition into the motives of every member; and even then, they might be re-examinable. Besides; what possible means can there be of making such investigations? The motives of many of the members may be, nay must be utterly unknown, and incapable of ascertainment by any judicial or other inquiry: they may be mixed up in various manners and degress; they may be opposite to, or wholly independent of each other. The constitution would thus depend upon processes utterly vague, and incomprehensible; and the written intent of the legislature upon its words and acts, the lex scripta , would be contradicted or obliterated by conjecture, and parol declarations, and fleeting reveries, and heated imaginations. No government on earth could rest for a moment on such a foundation. It would be a constitution of sand heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature must therefore be judged of from its object and intent, as they are embodied in its provisions; and if the latter are within the scope of admitted powers, the act must be constitutional, whether the motive for it were wise, or just, or otherwise. The manner of applying a power may be an abuse of it; but this does not prove, that it is unconstitutional.

§ 1087. Passing by these considerations, let the practice of the government and the doctrines maintained by those, who have administered it, be deliberately examined; and they will be found to be in entire consistency with this reasoning. The very first congress, that ever sat under the constitution, composed in a considerable degree of those, who had framed, or assisted in the discussion of its provisions in the state conventions, deliberately adopted this view of the power. And what is most remarkable, upon a subject of deep interest and excitement, which at the time occasioned long and vehement debates, not a single syllable of doubt was breathed from any quarter against the constitutionality of protecting agriculture and manufactures by laying duties, although the intention to protect and encourage them was constantly avowed. [65] Nay, it was contended to be a paramount duty, upon the faithful fulfillment of which the constitution had been adopted, and the omission of which would be a political fraud, without a whisper of dissent from any side. [66] It was demanded by the people from various parts of the Union; and was resisted by none. [67] Yet, state jealousy was never more alive than at this period, and state interests never more actively mingled in the debates of congress. The two great parties, which afterwards so much divided the country upon the question of a liberal and strict construction of the constitution, were then distinctly formed, and proclaimed their opinions with firmness and freedom. If, therefore, there had been a point of doubt, on which to hang an argument, it cannot be questioned, but that it would have been brought into the array of opposition. Such a silence, under such circumstances, is most persuasive and convincing.

§ 1088. The very preamble of this act [68] (the second passed by congress) is, "Whereas it is necessary for the support of the government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures , that duties be laid on goods, wares, and merchandises imported, Be it enacted," &c. [69] Yet, not a solitary voice was raised against it. The right, and the duty, to pass such laws was, indeed, taken so much for granted, that in some of the most elaborate expositions of the government upon the subject of manufactures, it was scarcely alluded to. [70] The Federalist itself, dealing with every shadow of objection against the constitution, never once alludes to such a one; but incidentally commends this power, as leading to beneficial results on all domestic interests. [71] Every successive congress since that time has constantly acted upon the system through all the changes of party and local interests. Every successive executive has sanctioned laws on the subject; and most of them have actively recommended the encouragement of manufactures to congress. [72] Until a very recent period, no person in the public councils seriously relied upon any constitutional difficulty. And even now, when the subject has been agitated, and discussed with great ability and zeal throughout the Union, not more than five states have expressed an opinion against the constitutional right, while it has received an unequivocal sanction in the others with an almost unexampled degree of unanimity. And this too, when in, most other respects these states have been in strong opposition to each other upon the general system of politics pursued by the government.

§ 1089. If ever, therefore, contemporaneous exposition, and the uniform and progressive operations of the government itself, in all its departments, can be of any weight to settle the construction of the constitution, there never has been, and there never can be more decided evidence in favour of the power, than is furnished by the history of our national laws for the encouragement of domestic agriculture and manufactures. To resign an exposition so sanctioned, would be to deliver over the country to interminable doubts; and to make the constitution not a written system of government, but a false and delusive text, upon which every successive age of speculatists and statesmen might build any system, suited to their own views and opinions. But if it be added to this, that the constitution gives the power in the most unlimited terms, and neither assigns motives, nor objects for its exercise; but leaves these wholly to the discretion of the legislature, acting for the common good, and the general interests; the argument in its favour becomes as absolutely irresistible, as any demonstration of a moral or political nature ever can be. Without such a power, the government would be absolutely worthless, and made merely subservient to the policy of foreign nations, incapable of self-protection or self-support; [73] with it, the country will have a fight to assert its equality, and dignity, and sovereignty among the other nations of the earth. [74]

§ 1089[a]. In regard to the rejection of the proposition in the convention "to establish institutions , rewards , and immunities for the promotion of agriculture, commerce, trades, and manufactures," [75] it is manifest, that it has no bearing on the question. It was a power much more broad in its extent and objects, than the power to encourage manufactures by the exercise of another granted power. It might be contended with quite as much plausibility, that the rejection was an implied rejection of the right to encourage commerce, for that was equally within the scope of the proposition. In truth, it involved a direct power to establish institutions , rewards , and immunities for all the great interests of society, and was, on that account, deemed too broad and sweeping. It would establish a general, and not a limited power of government.

§ 1090. Such is a summary (necessarily imperfect) of the reasoning on each side of this contested doctrine. The reader will draw his own conclusions; and these Commentaries have no further aim, than to put him in possession of the materials for a proper exercise of his judgment.

§ 1091. When the subject of the regulation of commerce was before the convention, the first draft of the constitution contained an article, that "no navigation act shall be passed, without the assent of two thirds of the members present in each house." [76] This article was afterwards recommended in a report of a committee to be stricken out. In the second revised draft it was left out; and a motion, to insert such a restriction to have effect until the year 1808, was negatived by the vote of seven states against three. [77] Another proposition, that no act, regulating the commerce of the United States with foreign powers, should be passed without the assent of two thirds of the members of each house, was rejected by the vote of seven states against four. [78] The rejection was, probably, occasioned by two leading reasons. First, the general impropriety of allowing the minority in a government to control, and in effect to govern all the legislative powers of the majority. Secondly, the especial inconvenience of such a power in regard to regulations of commerce, where the proper remedy for grievances of the worst sort might be withheld from the navigating and commercial states by a very small minority of the other states. [79] A similar proposition was made, after the adoption of the constitution, by some of the states; but it was never acted upon. [80]

§ 1092. The power of congress also extends to regulate commerce with the Indian tribes. This power was not contained in the first draft of the constitution. It was afterwards referred to the committee on the constitution (among other propositions) to consider the propriety of giving to congress the power "to regulate affairs with the Indians, as well within, as without the limits of the United States." And, in the revised draft, the committee reported the clause, "and with the Indian Tribes," as it now stands. [81]

§ 1093. Under the confederation, the continental congress were invested with the sole and exclusive right and power "of regulating the trade and managing all affairs with the Indians, not members of any of the states, provided, that the legislative right of any state within its own limits be not infringed or violated." [82]

§ 1094. Antecedently to the American Revolution the authority to regulate trade and intercourse with the Indian tribes, whether they were within, or without the boundaries of the colonies, was understood to belong to the prerogative of the British crown. [83] And alter the American Revolution, the like power would naturally fall to the federal government, with a view to the general peace and interests of all the states. [84] Two restrictions, however, upon the power were, by the above article, incorporated into the confederation, which occasioned endless embarrassments and doubts. The power of congress was restrained to Indians, not members of any of the states; and was not to be exercised, so as to violate or infringe the legislative right of any state within its own limits. What description of Indians were to be deemed members of a state was never settled under the confederation; and was a quest ion of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legislative jurisdiction, was to be regulated by an external authority, without so far intruding on the internal rights of legislation, was absolutely incomprehensible. In this case, as in some other cases, the articles of confederation inconsiderately endeavoured to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. [85] The constitution has wisely disembarrassed the power of these two limitations; and has thus given to congress, as the only safe and proper depositary, the exclusive power, which belonged to the crown in the ante-revolutionary times; a power indispensable to the peace of the states, and to the just preservation of the rights and territory of the Indians. [86] In the former illustrations of this subject, it was stated, that the Indians, from the first settlement of the country, were always treated, as distinct, though in some sort, as dependent nations. Their territorial rights and sovereignty were respected. They were deemed incapable of carrying on trade or intercourse with any foreign nations, or of ceding their territories to them. But their right of self-government was admitted; and they were allowed a national existence, under the protection of the parent country, which exempted them from the ordinary operations of the legislative power of the colonies. During the revolution and afterwards they were secured in the like enjoyment of their rights and property, as separate communities. [87] The government of the United States, since the constitution, have always recognised the same attributes of dependent sovereignty, as belonging to them, and claimed the same right of exclusive regulation of trade and intercourse with them, and the same authority to protect and guarantee their territorial possessions, immunities, and jurisdiction. [88]

§ 1095. The power, then, given to congress to regulate commerce with the Indian tribes, extends equally to tribes living within or without the boundaries of particular states, and within or without the territorial limits of the United States. It is (says a learned commentator) wholly immaterial, whether such tribes continue seated within the boundaries of a state, inhabit part of a territory, or roam at large over lands, to which the United States have no claim. The trade with them is, in all its forms, subject exclusively to the regulation of congress. And in this particular, also, we trace the wisdom of the constitution. The Indians, not distracted by the discordant regulations of different states, are taught to trust one great body, whose justice they respect, and whose power they fear. [89]

§ 1096. It has lately been made a question, whether an Indian tribe, situated within the territorial boundaries of a state; but exercising the powers of government, and national sovereignty, under the guarantee of the general government, is a foreign state in the sense of the constitution, and as such entitled to sue in the courts of the United States. Upon solemn argument, it has been held, that such a tribe is to be deemed politically a state; that is, a distinct political society, capable of self-government; but it is not to be deemed a foreign state , in the sense of the constitution. It is rather a domestic dependent nation. Such a tribe may properly be deemed in a state of pupillage; and its relation to the United States resembles that of a ward to a guardian. [ 90 , 91 ]