Commentaries on the Constitution of the United States/Book 3/Chapter 14
CHAPTER XIV.
POWERS OF CONGRESS.
§ 902. We have now arrived, in the course of our inquiries, at the eighth section of the first article of the constitution, which contains an enumeration of the principal powers of legislation confided to congress. A consideration of this most important subject will detain our attention for a considerable time; as well, because of the variety of topics, which it embraces, as of the controversies, and discussions, to which it has given rise. It has been, in the past time, it is in the present time, and it will probably in all future time, continue to be the debatable ground of the constitution, signalized, at once, by the victories, and the defeats of the same parties. Here, the advocates of state rights, and the friends of the Union will meet in hostile array. And here, those, who have lost power, will maintain long and arduous struggles to regain the public confidence, and those, who have secured power, will dispute every position, which may be assumed for attack, either of their policy, or their principles. Nor ought it at all to surprise us, if that, which has been true in the political history of other nations, shall be true in regard to our own; that the opposing parties shall occasionally be found to maintain the same system, when in power, which they have obstinately resisted, when out of power. Without supposing any insincerity or departure from principle in such cases, it will be easily imagined, that a very different course of reasoning will force itself on the minds of those, who are responsible for the measures of government, from that, which the ardour of opposition, and the jealousy of rivals, might well foster in those, who may desire to defeat, what they have no interest to approve.
§ 903. The first clause of the eighth section is in the following words: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence, and general welfare of the United States; but all duties, imposts, and excises, shall be uniform throughout the United States."
§ 904. Before proceeding to consider the nature and extent of the power conferred by this clause, and the reasons, on which it is founded, it seems necessary to settle the grammatical construction of the clause, and to ascertain its true reading. Do the words, "to lay and collect taxes, duties, imposts, and excises," constitute a distinct, substantial power; and the words, "to pay debts and provide for the common defence, and general welfare of the United States," constitute another distinct and substantial power? Or are the latter words connected with the former, so as to constitute a qualification upon them? This has been a topic of political controversy; and has furnished abundant materials for popular declamation and alarm. If the former be the true interpretation, then it is obvious, that under colour of the generality of the words to "provide for the common defence and general welfare," the government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumeration of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, "for the common defence and the general welfare."
§ 905. The former opinion has been maintained by some minds of great ingenuity, and liberality of views.[1] The latter has been the generally received sense of the nation, and seems supported by reasoning at once solid and impregnable. The reading, therefore, which will be maintained in these commentaries, is that, which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words, which are necessarily to be understood in this interpretation. They will then stand thus: "The congress shall have power to lay and collect taxes, duties, imposts, and excises, in order to pay the debts, and to provide for the common defence and general welfare of the United States;" that is, for the purpose of paying the public debts, and providing for the common defence and general welfare of the United States. In this sense, congress has not an unlimited power of taxation; but it is limited to specific objects,—the payment of the public debts, and providing for the common defence and general welfare. A tax, therefore, laid by congress for neither of these objects, would be unconstitutional, as an excess of its legislative authority. In what manner this is to be ascertained, or decided, will be considered hereafter. At present, the interpretation of the words only is before us; and the reasoning, by which that already suggested has been vindicated, will now be reviewed.
§ 906. The constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers, and not of general and unlimited powers. This is apparent, as will be presently seen, from the history of the proceedings of the convention, which framed it; and it has formed the admitted basis of all legislative and judicial reasoning upon it, ever since it was put into operation, by all, who have been its open friends and advocates, as well as by all, who have been its enemies and opponents. If the clause, "to pay the debts and provide for the common defence and general welfare of the United States," is construed to be an independent and substantive grant of power, it not only renders wholly unimportant and unnecessary the subsequent enumeration of specific powers; but it plainly extends far beyond them, and creates a general authority in congress to pass all laws, which they may deem for the common defence or general welfare.[2] Under such circumstances, the constitution would practically create an unlimited national government. The enumerated powers would tend to embarrassment and confusion; since they would only give rise to doubts, as to the true extent of the general power, or of the enumerated powers.
§ 907. One of the most common maxims of interpretation is, (as has been already stated,) that, as an exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated. But, how could it be applied with success to the interpretation of the constitution of the United States, if the enumerated powers were neither exceptions from, nor additions to, the general power to provide for the common defence and general welfare? To give the enumeration of the specific powers any sensible place or operation in the constitution, it is indispensable to construe them, as not wholly and necessarily embraced in the general power. The common principles of interpretation would seem to instruct us, that the different parts of the same instrument ought to be so expounded, as to give meaning to every part, which will bear it. Shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural or common, than first to use a general phrase, and then to qualify it by a recital of particulars. But the idea of an enumeration of particulars, which neither explain, nor qualify the general meaning, and can have no other effect, than to confound and mislead, is an absurdity, which no one ought to charge on the enlightened authors of the constitution.[3] It would be to charge them either with premeditated folly, or premeditated fraud.
§ 908. On the other hand, construing this clause in connection with, and as a part of the preceding clause, giving the power to lay taxes, it becomes sensible and operative. It becomes a qualification of that clause, and limits the taxing power to objects for the common defence or general welfare. It then contains no grant of any power whatsoever; but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation.[4]
§ 909. An attempt has been sometimes made to treat this clause, as distinct and independent, and yet as having no real significancy per se, but (if it may be so said) as a mere prelude to the succeeding enumerated powers. It is not improbable, that this mode of explanation has been suggested by the fact, that in the revised draft of the constitution in the convention the clause was separated from the preceding exactly in the same manner, as every succeeding clause was, viz. by a semicolon, and a break in the paragraph; and that it now stands, in some copies, and it is said, that it stands in the official copy, with a semicolon interposed.[5] But this circumstance will be found of very little weight, when the origin of the clause, and its progress to its present state are traced in the proceedings of the convention. It will then appear, that it was first introduced as an appendage to the power to lay taxes.[6] But there is a fundamental objection to the interpretation thus attempted to be maintained, which is, that it robs the clause of all efficacy and meaning. No person has a right to assume, that any part of the constitution is useless, or is without a meaning; and a fortiori no person has a right to rob any part of a meaning, natural and appropriate to the language in the connection, in which it stands.[7] Now, the words have such a natural and appropriate meaning, as a qualification of the preceding clause to lay taxes. Why, then, should such a meaning be rejected?
§ 910. It is no sufficient answer to say, that the clause ought to be regarded, merely as containing "general terms, explained and limited, by the subjoined specifications, and therefore requiring no critical attention, or studied precaution;"[8] because it is assuming the very point in controversy, to assert, that the clause is connected with any subsequent specifications. It is not said, to "provide for the common defence, and general welfare, in manner following, viz.," which would be the natural expression, to indicate such an intention. But it stands entirely disconnected from every subsequent clause, both in sense and punctuation; and is no more a part of them, than they are of the power to lay taxes. Besides; what suitable application, in such a sense, would there be of the last clause in the enumeration, viz., the clause "to make all laws, necessary and proper for carrying into execution the foregoing powers, &c.?" Surely, this clause is as applicable to the power to lay taxes, as to any other; and no one would dream of its being a mere specification, under the power to provide for the common defence, and general welfare.
§ 911. It has been said in support of this construction, that in the articles of confederation (art. 8) it is provided, that "all charges of war, and all other expenses, that shall be incurred for the common defence, or general welfare, and allowed by the United States in congress assembled, shall be defrayed out of a common treasury, &c.;" and that§ 912. But the argument in its other branch rests on an assumed basis, which is not admitted. It supposes, that in the confederation no expenses, not strictly incurred under some of the subsequent specified powers given to the continental congress, could be properly payable out of the common treasury. Now, that is a proposition to be proved; and is not to be taken for granted. The confederation was not finally ratified, so as to become a binding instrument on any of the states, until March, 1781. Until that period there could be no practice or construction under it; and it is not shown, that subsequently there was any exposition to the effect now insisted on. Indeed, after the peace of 1783, if there had been any such exposition, and it had been unfavourable to the broad exercise of the power, it would have been entitled to less weight, than usually belongs to the proceedings of public bodies in the administration of their powers; since the decline and fall of the confederation was so obvious, that it was of little use to exert them. The states notoriously disregarded the rights and prerogatives admitted to belong to the confederacy; and even the requisitions of congress, for objects most unquestionably within their constitutional authority, were openly denied, or silently evaded. Under such circumstances, congress would have little inclination to look closely to their powers; since, whether great or small, large or narrow, they were of little practical value, and of no practical cogency.
§ 913. But it does so happen, that in point of fact, no such unfavourable or restrictive interpretation or practice was ever adopted by the continental congress. On the contrary, they construed their power on the subject of requisitions and taxation, exactly as it is now contended for, as a power to make requisitions on the states for all expenses, which they might deem proper to incur for the common defence and general welfare; and to appropriate all monies in the treasury to the like purposes. This is admitted to be of such notoriety, as to require no proof.[12] Surely, the practice of that body in questions of this nature must be of far higher value, than the mere private interpretation of any persons in the present times, however respectable. But the practice was conformable to the constitutional authority of congress under the confederation. The ninth article expressly delegates to congress the power "to ascertain the necessary sums to be raised for the service of the United States, and to appropriate and apply the same for defraying the public expenses;" and then provides, that congress shall not "ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, &c. unless nine states assent to the same." So that here we have, in the eighth article, a declaration, that "all charges of war and all other expenses, that shall he incurred for the common defence or general welfare, &c. shall be defrayed out of a common treasury;" and in the ninth article, an express power to ascertain the necessary sums of money to be raised for the public service; and then, that the necessary sums for the defence and welfare of the United States, (and not of the United States alone, for the words are added,) or of any of them, shall be ascertained by the assent of nine states. Clearly therefore, upon the plain language of the articles, the words "common defence and general welfare," in one, and "defence and welfare," in another, and "public service," in another, were not idle words, but were descriptive of the very intent and objects of the power; and not confined even to the defence and welfare of all the states, but extending to the welfare and defence of any of them.[13] The power then is, in this view, even larger, than that conferred by the constitution.
§ 914. But there is no ground whatsoever, which authorizes any resort to the confederation, to interpret the power of taxation, which is conferred on congress by the constitution. The clause has no reference whatsoever to the confederation; nor indeed to any other clause of the constitution. It is, on its face, a distinct, substantive, and independent power. Who, then, is at liberty to say, that it is to be limited by other clauses, rather than they to be enlarged by it; since there is no avowed connection, or reference from the one to the others? Interpretation would here desert its proper office, that, which requires, that "every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end."[14]
§ 915. It has been farther said, in support of the construction now under consideration, that§ 916. Stripped of the ingenious texture, by which this argument is disguised, it is neither more nor less, than an attempt to obliterate from the constitution the whole clause, "to pay the debts, and provide for the common defence and general welfare of the United States," as entirely senseless, or inexpressive of any intention whatsoever.[16] Strike them out, and the constitution is exactly what the argument contends for. It is, therefore, an argument, that the words ought not to be in the constitution; because if they are, and have any meaning, they enlarge it beyond the scope of certain other enumerated powers, and this is both mischievous and dangerous. Being in the constitution, they are to be deemed, vox et preterea nihil, an empty sound and vain phraseology, a finger-board pointing to other powers, but having no use whatsoever, since these powers are sufficiently apparent without.[17] Now, it is not too much to say, that in a constitution of government, framed and adopted by the people, it is a most unjustifiable latitude of interpretation to deny effect to any clause, if it is sensible in the language, in which it is expressed, and in the place, in which it stands. If words are inserted, we are bound to presume, that they have some definite object, and intent; and to reason them out of the constitution upon arguments ab inconvenienti, (which to one mind may appear wholly unfounded, and to another wholly satisfactory,) is to make a new constitution, not to construe the old one. It is to do the very thing, which is so often complained of, to make a constitution to suit our own notions and wishes, and not to administer, or construe that, which the people have given to the country.
§ 917. But what is the argument, when it is thoroughly sifted? It reasons upon a supposed dilemma, upon which it suspends the advocates of the two contrasted opinions. If the power to provide for the common defence and general welfare is an independent power, then it is said, that the government is unlimited, and the subsequent enumeration of powers is unnecessary and useless. If it is a mere appendage or qualification of the power to lay taxes, still it involves a power of general appropriation of the monies so raised, which indirectly produces the same result.[18] Now, the former position may be safely admitted to be true by those, who do not deem it an independent power; but the latter position is not a just conclusion from the premises, which it states, that it is a qualified power. It is not a logical, or a practical sequence from the premises; it is a non sequitur.
§ 918. A dilemma, of a very different sort, might be fairly put to those, who contend for the doctrine, that the words are not a qualification of the power to lay taxes, and, indeed, have no meaning, or use per se. The words are found in the clause respecting taxation, and as a part of that clause. If the power to tax extends simply to the payment of the debts of the United States, then congress has no power to lay any taxes for any other purpose. If so, then congress could not appropriate the money raised to any other purposes; since the restriction is to taxes for payment of the debts of the United States, that is, of the debts then existing. This would be almost absurd. If, on the other hand, congress have a right to lay taxes, and appropriate the money to any other objects, it must be, because the words, "to provide for the common defence and general welfare," authorize it, by enlarging the power to those objects; for there are no other words, which belong to the clause. All the other powers are in distinct clauses, and do not touch taxation. No advocate for the doctrine of a restrictive power will contend, that the power to lay taxes to pay debts, authorizes the payment of all debts, which the United States may choose to incur, whether for national or constitutional objects, or not. The words, "to pay debts," are therefore, either antecedent debts, or debts to be incurred "for the common defence and general welfare," which will justify congress in incurring any debts for such purposes. But the language is not confined to the payment of debts for the common defence and general welfare. It is not "to pay the debts" merely; but "to provide for the common defence and general welfare." That is, congress may lay taxes to provide means for the common defence and general welfare. So that there is a difficulty in rejecting one part of the qualifying clause, without rejecting the whole, or enlarging the words for some purposes, and restricting them for others.
§ 919. A power to lay taxes for any purposes whatsoever is a general power; a power to lay taxes for certain specified purposes is a limited power. A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them. If the defence proposed by a tax be not the common defence of the United States, if the welfare be not general, but special, or local, as contradistinguished from national, it is not within the scope of the constitution. If the tax be not proposed for the common defence, or general welfare, but for other objects, wholly extraneous, (as for instance, for propagating Mahometanism among the Turks, or giving aids and subsidies to a foreign nation, to build palaces for its kings, or erect monuments to its heroes,) it would be wholly indefensible upon constitutional principles. The power, then, is, under such circumstances, necessarily a qualified power. If it is so, how then does it affect, or in the slightest degree trench upon the other enumerated powers? No one will pretend, that the power to lay taxes would, in general, have superseded, or rendered unnecessary all the other enumerated powers. It would neither enlarge, nor qualify them. A power to tax does not include them. Nor would they, (as unhappily the confederation too clearly demonstrated,)[19] necessarily include a power to tax. Each has its appropriate office and objects; each may exist without necessarily interfering with, or annihilating the other. No one will pretend, that the power to lay a tax necessarily includes the power to declare war, to pass naturalization and bankrupt laws, to coin money, to establish post-offices, or to define piracies and felonies on the high seas. Nor would either of these be deemed necessarily to include the power to tax. It might be convenient; but it would not be absolutely indispensable.
§ 920. The whole of the elaborate reasoning upon the propriety of granting the power of taxation, pressed with so much ability and earnestness, both in and out of the convention,[20] as vital to the operations of the national government, would have been useless, and almost absurd, if the power was included in the subsequently enumerated powers. If the power of taxing was to be granted, why should it not be qualified according to the intention of the framers of the constitution? But then, it is said, if congress may lay taxes for the common defence and general welfare, the money may be appropriated for those purposes, although not within the scope of the other enumerated powers. Certainly it may be so appropriated; for if congress is authorized to lay taxes for such purposes, it would be strange, if, when raised, the money could not be applied to them. That would be to give a power for a certain end, and then deny the end intended by the power. It is added, "that there is not a single power whatsoever, which may not have some reference to the common defence or general welfare; nor a power of any magnitude, which, in its exercise, does not involve, or admit an application of money." If by the former language is meant, that there is not any power belonging, or incident to any government, which has not some reference to the common defence or general welfare, the proposition may be peremptorily denied. Many governments possess powers, which have no application to either of these objects in a just sense; and some possess powers repugnant to both. If it is meant, that there is no power belonging, or incident to a good government, and especially to a republican government, which may not have some reference to those objects, that proposition may, or may not be true; but it has nothing to do with the present inquiry. The only question is, whether a mere power to lay taxes, and appropriate money for the common defence and general welfare, does include all the other powers of government; or even does include the other enumerated powers (limited as they are) of the national government. No person can answer in the affirmative to either part of the inquiry, who has fully considered the subject. The power of taxation is but one of a multitude of powers belonging to governments; to the state governments, as well as the national government. Would a power to tax authorize a state government to regulate the descent and distribution of estates; to prescribe the form of conveyances; to establish courts of justice for general purposes; to legislate respecting personal rights, or the general dominion of property; or to punish all offences against society? Would it confide to congress the power to grant patent rights for invention; to provide for counterfeiting the public securities and coin; to constitute judicial tribunals with the powers confided by the third article of the constitution; to declare war, and raise armies and navies, and make regulations for their government; to exercise exclusive legislation in the territories of the United States, or in other ceded places; or to make all laws necessary and proper to carry into effect all the powers given by the constitution? The constitution itself upon its face refutes any such notion. It gives the power to tax, as a substantive power; and gives others, as equally substantive and independent.
§ 921. That the same means may sometimes, or often, be resorted to, to carry into effect the different powers, furnishes no objection; for that is common to all governments. That an appropriation of money may be the usual, or best mode of carrying into effect some of these powers, furnishes no objection; for it is one of the purposes, for which, the argument itself admits, that the power of taxation is given. That it is indispensable for the due exercise of all the powers, may admit of some doubt. The only real question is, whether even admitting the power to lay taxes is appropriate for some of the purposes of other enumerated powers, (for no one will contend, that it will, of itself, reach, or provide for them all,) it is limited to such appropriations, as grow out of the exercise of those powers. In other words, whether it is an incident to those powers, or a substantive power in other cases, which may concern the common defence and the general welfare. If there are no other cases, which concern the common defence and general welfare, except those within the scope of the other enumerated powers, the discussion is merely nominal and frivolous. If there are such cases, who is at liberty to say, that, being for the common defence and general welfare, the constitution did not intend to embrace them? The preamble of the constitution declares one of the objects to be, to provide for the common defence, and to promote the general welfare; and if the power to lay taxes is in express terms given to provide for the common defence and general welfare, what ground can there be to construe the power, short of the object? To say, that it shall be merely auxiliary to other enumerated powers, and not coextensive with its own terms, and its avowed objects? One of the best established rules of interpretation, one, which common sense and reason forbid us to overlook, is, that when the object of a power is clearly defined by its terms, or avowed in the context, it ought to be construed, so as to obtain the object, and not to defeat it. The circumstance, that so construed the power may be abused, is no answer. All powers may be abused; but are they then to be abridged by those, who are to administer them, or denied to have any operation? If the people frame a constitution, the rulers are to obey it. Neither rulers, nor any other functionaries, much less any private persons, have a right to cripple it, because it is according to their own views inconvenient, or dangerous, unwise or impolitic, of narrow limits, or of wide influence.
§ 922. Besides; the argument itself admits, that "congress is authorized to provide money for the common defence and general welfare." It is not pretended, that, when the tax is laid, the specific objects, for which it is laid, are to be specified, or that it is to be solely applied to those objects. That would be to insert a limitation, no where stated in the text. But it is said, that it must be applied to the general welfare; and that can only be by an application of it to some particular measure, conducive to the general welfare. This is admitted. But then, it is added, that this particular measure must be within the enumerated authorities vested in congress, (that is, within some of the powers not embraced in the first clause,) otherwise the application is not authorized.[21] Why not, since it is for the general welfare? No reason is assigned, except, that not being within the scope of those enumerated powers, it is not given by the constitution. Now, the premises may be true; but the conclusion does not follow, unless the words common defence and general welfare are limited to the specifications included in those powers. So, that after all, we are led back to the same reasoning, which construes the words, as having no meaning per se, but as dependent upon, and an exponent of, the enumerated powers. Now, this conclusion is not justified by the natural connection or collocation of the words; and it strips them of all reasonable force and efficacy. And yet we are told, that "this fair and obvious interpretation coincides with, and is enforced by, the clause of the constitution, which provides, that no money shall be drawn from the treasury, but in consequence of appropriations by law;" as if the clause did not equally apply, as a restraint upon drawing money, whichever construction is adopted. Suppose congress to possess the most unlimited power to appropriate money for the general welfare; would it not be still true, that it could not be drawn from the treasury, until an appropriation was made by some law passed by congress? This last clause is a limitation, not upon the powers of congress, but upon the acts of the executive, and other public officers, in regard to the public monies in the treasury.
§ 923. The argument in favour of the construction, which treats the clause, as a qualification of the power to lay taxes, has, perhaps, never been presented in a more concise or forcible shape, than in an official opinion, deliberately given by one of our most distinguished statesmen.[22] "To lay taxes to provide for the general welfare of the United States, is," says he,§ 925. The view thus taken of this clause of the constitution will receive some confirmation, (if it should be thought by any person necessary,) by an historical examination of the proceedings of the convention. The first resolution adopted by the convention on this subject of the powers of the general government, was
§ 926. Afterwards a motion was made to refer certain propositions, and among others a proposition to secure the payment of the public debt, and to appropriate funds exclusively for that purpose, and to secure the public creditors from a violation of the public faith, when pledged by the authority of the legislature, to a select committee, (of five,) which was accordingly done.[31] Another committee (of eleven) was appointed at the same time, to consider the necessity and expediency of the debts of the several states being assumed by the United States.[32] The latter committee reported, that
§ 927. Besides; it is impracticable in grammatical propriety to separate the different parts of the latter clause. The words are, "to pay the debts, and provide for the common defence," &c. "To pay the debts" cannot be construed, as an independent power; for it is connected with the other by the copulative "and." The payment of the antecedent debts of the United States was already provided for by a distinct article;[40] and the power to pay future debts must necessarily be implied to the extent, to which they could constitutionally be contracted; and would fall within the purview of the enumerated power to pass all laws necessary and proper to carry the powers given by the constitution into effect. If, then, these words were and ought to be read, as a part of the preceding power to lay taxes, and in connection with it, (as this historical review establishes beyond any reasonable controversy,) they draw the other words, "and provide for the common defence," &c., with them into the same connection. On the other hand, if this connection be once admitted, it would be almost absurd to contend, that "to pay the debts" of the United States was a general phrase, which pointed to the subsequent enumerated powers, and was qualified by them; and yet, as a part of the very clause, we are not at liberty to disregard it. The truth is, (as the historical review also proves,) that after it had been decided, that a positive power to pay the public debts should be inserted in the constitution, and a desire had been evinced to introduce some restriction upon the power to lay taxes, in order to allay jealousies and suppress alarms, it was (keeping both objects in view) deemed best to append the power to pay the public debts to the power to lay taxes; and then to add other terms, broad enough to embrace all the other purposes contemplated by the constitution. Among these none were more appropriate, than the words, "common defence and general welfare," found in the articles of confederation, and subsequently with marked emphasis introduced into the preamble of the constitution. To this course no opposition was made, because it satisfied those, who wished to provide positively for the public debts, and those, who wished to have the power of taxation coextensive with all constitutional objects and powers. In other words, it conformed to the spirit of that resolution of the convention, which authorized congress "to legislate, in all cases, for the general interests of the Union."[41]
§ 928. Having thus disposed of the question, what is the true interpretation of the clause, as it stands in the text of the constitution, and ascertained, that the power of taxation, though general, as to the subjects, to which it may be applied, is yet restrictive, as to the purposes, for which it may be exercised; it next becomes matter of inquiry, what were the reasons, for which this power was given, and what were the objections, to which it was deemed liable.
§ 929. That the power of taxation should be, to some extent, vested in the national government, was admitted by all persons, who sincerely desired to escape from the imbecilities, as well as the inequalities of the confederation.[42] Without such a power, it would not be possible to provide for the support of the national forces by land or sea, or the national civil list, or the ordinary charges and expenses of government. For these purposes at least, there must be a constant and regular supply of revenue.[43] If there should be a deficiency, one of two evils must inevitably ensue; either the people must be subjected to continual arbitrary plunder; or the government must sink into a fatal atrophy.[44] The former is the fate of Turkey under its sovereigns: the latter was the fate of America under the confederation.[45]
§ 930. If, then, there is to be a real, effective national government, there must be a power of taxation coextensive with its powers, wants, and duties. The only inquiry properly remaining is, whether the resources of taxation should be specified and limited; or, whether the power in this respect should be general, leaving a full choice to the national legislature. The opponents of the constitution strenuously contended, that the power should be restricted; its friends, as strenuously contended, that it was indispensable for the public safety, that it should be general.
§ 931. The general reasoning, by which an unlimited power was sustained, was to the following effect. Every government ought to contain within itself every power requisite to the full accomplishment of the objects committed to its care, and the complete execution of the trusts, for which it is responsible, free from every other control, but a regard to the public good, and to the security of the people. In other words, every power ought to be proportionate to its object. The duties of superintending the national defence, and of securing the public peace against foreign or domestic violence, involve a provision for casualties and dangers, to which no possible limits can be assigned; and therefore the power of making that provision ought to know no other bounds, than the exigencies of the nation, and the resources of the community. Revenue is the essential engine, by which the means of answering the national exigencies must be procured; and therefore the power of procuring it must necessarily be comprehended in that of providing for those exigencies. Theory, as well as practice, the past experience of other nations, as well as our own sad experience under the confederation, conspire to prove, that the power of procuring revenue is unavailing, and a mere mockery, when exercised over states in their collective capacities. If, therefore, the federal government was to be of any efficiency, and a bond of union, it ought to be invested with an unqualified power of taxation for all national purposes.[46] In the history of mankind it has ordinarily been found, that in the usual progress of things the necessities of a nation in every stage of its existence are at least equal to its resources.[47] But, if a more favourable state of things should exist in our own government, still we must expect reverses, and ought to provide against them. It is impossible to foresee all the various changes in the posture, relations, and power of different nations, which might affect the prosperity and safety of our own. We may have formidable foreign enemies. We may have internal commotions. We may suffer from physical, as well as moral calamities; from plagues, famine, and earthquakes; from political convulsions, and rivalries; from the gradual decline of particular sources of industry; and from the necessity of changing our own habits and pursuits, in consequence of foreign improvements and competitions, and the variable nature of human wants and desires. A source of revenue adequate in one age, may wholly or partially fail in another. Commerce, or manufactures, or agriculture may thrive under a tax in one age, which would destroy them in another. The power of taxation, therefore, to be useful, must not only be adequate to all the exigencies of the nation, but it must be capable of reaching from time to time all the most productive sources. It has been observed with no less truth, than point, that "in political arithmetic two and two do not always make four."[48] Constitutions of government are not to be framed upon a calculation of existing exigencies; but upon a combination of these with the probable exigencies of ages, according to the natural and tried course of human affairs. There ought to be a capacity to provide for future contingencies, as they may happen; and as these are (as has been already suggested) illimitable in their nature, so it is impossible safely to limit that capacity.[49]
§ 932. In answer to this reasoning it was objected, that§ 933. In regard to these objections it was urged, that it was impossible to rely (as the history of the government under the confederation abundantly proved) upon requisitions upon the states.[53] Direct taxes were exceedingly unequal, and difficult to adjust;[54] and could not safely be relied on, as an adequate or satisfactory source of revenue, except as a final resort, when others more eligible failed. The distinction between external and internal taxation was indeed capable of being reduced to practice. But in many emergencies it might leave the national government without any adequate resources, and compel it to a course of taxation ruinous to our trade and industry, and the solid interests of the country. No one of due reflection can contend, that commercial imports are, or could be, equal to all future exigencies of the Union; and indeed ordinarily they may not be found equal to them.[55] Suppose they are equal to the ordinary expenses of the Union; yet, if war should come, the civil list must be entirely overlooked, or the military left without any adequate supply.[56] How is it possible, that a government half supplied and half necessitous can fulfil the purposes of its institution, or can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home, or respectability abroad? How can its administration be any thing else, than a succession of expedients, temporary, impotent, and disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake, or execute any liberal or enlarged plans of public good?[57] Who would lend to a government, incapable of pledging any permanent resources to redeem its debts? It would be the common case of needy individuals, who must borrow upon onerous conditions and usury, because they cannot promise a punctilious discharge of their engagements.[58] It would, therefore, not only not be wise, but be the extreme of folly to stop short of adequate resources for all emergencies, and to leave the government entrusted with the care of the national defence in a state of total, or partial incapacity to provide for the protection of the community against future invasions of the public peace by foreign war, or domestic convulsions. If, indeed, we are to try the novel, not to say absurd experiment in politics, of tying up the hands of government from protective and offensive war, founded upon reasons of state, we ought certainly to be able to compel foreign nations to abstain from all measures, which shall injure, or cripple us.[59] We must be able to repress their ambition, and disarm their enmity; to conquer their prejudices, and destroy their rivalries and jealousies. Who is so visionary, as to dream of such a moral influence in a republic over the whole world? It should never be forgotten, that the chief sources of expense in every government have ever arisen from wars and rebellions, from foreign ambition and enmity, or from domestic insurrections and factions. And it may well be presumed, that what has been in the past, will continue to be in the future.
§ 934. Besides; it is manifest, that however adequate commercial imposts might be for the ordinary expenditures of peace, the operations of war might, and indeed ordinarily would, if our adversary possessed a large naval force, greatly endanger, if it did not wholly cut off our supplies from this source.[60] And if this were the sole reliance of the national government, a naval warfare upon our commerce would, on this very account, be at once the most successful, and the most irresistible means of subduing us, or compelling us to sue for peace. What could Great Britain, or France do in a naval war, if they were compelled to rely on commerce alone, as a resource for taxation to raise armies, or maintain navies? What could America do, in a contest with a rival power, whose navy possessed a superiority, sufficient to blockade all her principal ports?[61] And, independent of any such exigencies, the history of the world shows, that nothing is more fluctuating and capricious than trade. The proudest commercial nations in one age have sunk down to comparative insignificance in another. Look at Venice, and Genoa, and the Hanse Towns, and Holland, and Portugal, and Spain! What is their present, commercial importance; compared with its glory, and success, in past times? Could either of them now safely rely on imposts, as an exclusive source of revenue?
§ 935. There is another, very important view of this subject. If the power of taxation of the general government were confined to duties on imports, it is evident, that it might be compelled, for want of other adequate resources, to extend these duties to an injurious excess. Trade might become embarrassed, and perhaps oppressed, so as to diminish the receipts, while the duty was increased; smuggling, always facile, and always demoralizing in a republic of a widely extended seacoast, would be most mischievously encouraged.[62] The first effect would be, that commerce would thus gradually change its channels; and if other interests should be (as, indeed, they might be to some extent) aided by such exorbitant duties; the ultimate result would be a great diminution of the revenue, and the ruin of a great branch of industry. It never can be either politic or just, wise or patriotic, to found a government upon principles, which in its ordinary, or even extraordinary operations, must naturally, if not necessarily, lead to such a result. This would be, to create a government, not for the happiness, or prosperity of the whole people; but for oppressions, and inequalities, arising from scanty means, and inadequate powers.
§ 936. In regard to the other part of the objection, founded on the dangers to the state governments from this general power of taxation, it is wholly without any solid foundation. It assumes, that the national government will have an interest to oppress or destroy the state governments; a supposition, wholly inadmissible in principle, and unsupported by fact. There is quite as much reason to presume, that there will be a disposition in the state governments to encroach on that of the union.[63] In truth, no reasoning, founded exclusively on either ground, is safe, or satisfactory. There ought to be power in each government to maintain itself, and execute its own powers; but it does not necessarily follow, that either would become dangerous to the other. The objection, indeed, is rather aimed at the structure, and organization of the government, than at its powers; since it is impossible, if the structure and organization be reasonably skillful, that any usurpation or oppression can take place.[64]
§ 937. But waiving this consideration, it will at once be seen, that the state governments have complete means of self-protection, as with the sole exception of duties on imports and exports, (which the constitution has taken from the states, unless it is exercised by the consent of congress,) the power of taxation remains in the states concurrent and co-extensive with that of congress. The slightest attention to the subject will demonstrate this beyond all controversy. The language of the constitution does not, in terms, make it an exclusive power in congress; the existence of a concurrent power is not incompatible with the exercise of it by congress; and the states are not expressly prohibited from using it by the constitution. Under such circumstances, the argument is irresistible, that a concurrent power remains in the states, as a part of their original and unsurrendered sovereignty.[65]
§ 938. The remarks of the Federalist, on this point, are very full and cogent. "There is, plainly," says that work,...
As to a supposition of repugnancy between the power of taxation in the states, and in the Union; it cannot be supported in that sense, which would be requisite to work an exclusion of the states. It is indeed possible, that a tax might be laid on a particular article by a state, which might render it inexpedient, that a further tax should be laid on the same article by the Union. But it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency of an increase, on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and state system of finance might, now and then, not exactly coincide, and might require reciprocal forbearance. It is not, however, a mere possibility of inconvenience, in the exercise of powers; but an immediate constitutional repugnancy, that can, by implication, alienate and extinguish a preexisting right of sovereignty.[66]§ 939. It is true, that the laws of the Union are to be supreme. But, without this, they would amount to nothing. It may be admitted, that a law, laying a tax for the use of the United States, would be supreme in its nature, and legally uncontrollable. Yet a law, abrogating a state tax, or preventing its collection, would be as clearly unconstitutional; and, therefore, not the supreme law. As far as an improper accumulation of taxes on the same thing might tend to render the collection difficult, or precarious, it would be a mutual inconvenience, not arising from superiority, or defect of power on either side, but from an injudicious exercise of it.[67]
§ 940. The states, with this concurrent power, will be entirely sate, and have ample resources to meet all their wants, whatever they may be, although few public expenses, comparatively speaking, will fall to their lot to provide for. They will be chiefly of a domestic character, and affecting internal polity; whereas, the resources of the Union will cover the vast expenditures, occasioned by foreign intercourse, wars, and other charges necessary for the safety and prosperity of the Union. The mere civil list of any country is always small; the expenses of armies, and navies, and foreign relations unavoidably great. There is no sound reason, why the states should possess any exclusive power over sources of revenue, not required by their wants. But there is the most urgent propriety in conceding to the Union all, which may be commensurate by their wants. Any attempt to discriminate between the sources of revenue would leave too much, or too little to the states. If the exclusive power of external taxation were given to the Union, and of external taxation to the states, it would, at a rough calculation, probably give to the states a command of two thirds of the resources of the community, to defray from a tenth to a twentieth of its expenses; and to the Union, one third of the resources of the community, to defray from nine tenths to nineteen twentieths of its expenses. Such an unequal distribution is wholly indefensible. And it may be added, that the resources of the Union would, or might be diminished exactly in proportion to the increase of demands upon its treasury; for (as has been already seen) war, which brings the great expenditures, narrows, or at least may narrow the resources of taxation from duties on imports to a very alarming degree. If we enter any other line of discrimination, it will be equally difficult to adjust the proper proportions; for the inquiry itself, in respect to the future wants, as well of the states, as of the Union, and their relative proportion, must involve elements, for ever changing, and incapable of any precise ascertainment. Too much, or too little would forever be found to belong to the states; and the states, as well as the Union, might be endangered by the very precautions to guard against abuses of power.[68] Any separation of the subjects of revenue, which could have been fallen upon, would have amounted to a sacrifice of the interests of the Union to the power of the individual states; or of a surrender of important functions by the latter, which would have removed them to a mean provincial servitude, and dependence.[69]
§ 941. Other objections of a specious character were urged against confiding to congress a general power of taxation. Among these, none were insisted on with more frequency, and earnestness, than the incapacity of congress to judge of the proper subjects of taxation, considering the diversified interests, and pursuits of the states, and the impracticability of representing in that body all their interests and pursuits.[70] The principal pressure of this argument has been already examined, in the survey already taken of the structure and organization of the Senate, and House of Representatives. In truth, if it has any real force, or efficacy, it is an argument against any national government, having any efficient national powers; and it is not necessary to repeat the reasoning, on which the expediency, or necessity of such a government has been endeavoured to be demonstrated. And, in respect to the particular subject of taxation, there is quite as much reason to suppose, that there will be an adequate assemblage of experience, knowledge, skill, and wisdom, in congress, and as adequate means of ascertaining the proper bearing of all taxes, whether direct, or indirect, whether affecting agriculture, commerce, or manufactures, as to discharge any other functions delegated to congress. To suppose otherwise, is to suppose the Union impracticable, or mischievous.[71]
§ 942. Other objections were raised on the ground of the multiplied means of influence in the national government, growing out of the appointments to office, necessary in the collection of the revenues; the host of officers, which would swarm over the land, like locusts, to devour its substance; and the terrific oppressions, resulting from double taxes, and harsh, and arbitrary regulations.[72] These objections were answered, as well might be supposed, by appeals to common sense, and common experience; and they are the less necessary now to be refuted, since in the actual practice of the government they have been proved to be visionary, and fallacious, the dreams of speculative statesmen, indulging their love of ingenious paradoxes, or the suggestions of fear, stimulated by discontent, or carried away by phantoms of the imagination.[73]
§ 943. But another extraordinary objection, which shows, how easily men may persuade themselves of the truth of almost any proposition, which temporary interests or excitements induce them to believe, was urged from the North; and it was, that the impost would be a partial tax; and that the southern states will pay but little in comparison with the northern. It was refuted by unanswerable reasoning;[74] and would hardly deserve mention, if the opposite doctrine had not been recently revived and propagated with abundant zeal at the South, that duties on importations fall with the most calamitous inequality on the southern states. Nay, it has been seriously urged, that a single southern state is burthened with the payment of more than half of the whole duties levied on foreign goods throughout the Union.
§ 944. Again; it was objected, that there was no certainty, that any duties would be laid on importations; for the southern states might object to all imposts of this nature, as they have no manufactures of their own, and consume more foreign goods, than the northern states; and, therefore, direct taxes would be the common resort to supply revenue.[75] To which no other answer need be given, than, that the rule of apportionment, as well as the inequalities of such taxes, would, undoubtedly, produce a strong disinclination in the nation, and especially in the southern states, to resort to them, unless under extraordinary circumstances.[76] An objection, of a directly opposite character, was also taken; viz. that the power of laying direct taxes was not proper to be granted to the national government, because it was unnecessary, impracticable, unsafe, and accumulative of expense.[77] This objection also was shown to be unfounded; and, indeed, under certain exigencies, which have been already alluded to, the national government might for want of it be utterly prostrated.[78]
§ 945. Other objections were urged, which it seems unnecessary to enumerate, as they were either temporary in their nature, or were mere auxiliaries to those already mentioned. The experience of the national government has hitherto shown the entire safety, practicability, and even necessity of its possessing the general power of taxation. The states have exercised a concurrent power without obstruction or inconvenience, and enjoy revenues adequate to all their wants; more adequate, indeed, than they could possibly possess, if the Union were abolished, or the national government were not vested with a general power of taxation, which enables it to provide for all objects of common defence and general welfare. The triumph of the friends of the constitution, in securing this great fundamental source of all real effective national sovereignty, was most signal; and it is the noblest monument of their wisdom, patriotism, and independence. Popular feelings, and popular prejudices, and local interests, and the pride of state authority, and the jealousy of state sovereignty, were all against them. Yet they were not dismayed; and by steadfast appeals to reason, to the calm sense of the people, and to the lessons of history, they subdued opposition, and won confidence. Without the possession of this power, the constitution would have long since, like the confederation, have dwindled down to an empty pageant. It would have become an unreal mockery, deluding our hopes, and exciting our fears. It would have flitted before us for a moment with a pale and ineffectual light, and then have departed for ever to the land of shadows. There is so much candour and force in the remarks of the learned American commentator on Blackstone, on this subject, that they deserve to be cited in this place.[79]§ 946. The language of the constitution is, "Congress shall have power to lay and collect taxes, duties, imposts, and excises," &c. "But all duties, imposts, and excises shall be uniform throughout the United States." A distinction is here taken between taxes, and duties, imposts, and excises; and, indeed, there are other parts of the constitution respecting the taxing powder, (as will presently be more fully seen,) such as the regulations respecting direct taxes, the prohibition of taxes or duties on exports by the United States, and the prohibition of imposts or duties by the states on imports or exports, which require an attention to this distinction.
§ 947. In a general sense, all contributions imposed by the government upon individuals for the service of the state, are called taxes, by whatever name they may be known, whether by the name of tribute, tythe, talliage, impost, duty, gabel, custom, subsidy, aid, supply, excise, or other name.[80] In this sense, they are usually divided into two great classes, those, which are direct, and those, which are indirect. Under the former denomination are included taxes on land, or real property, and under the latter, taxes on articles of consumption.[81] The constitution, by giving the power to lay and collect taxes in general terms, doubtless meant to include all sorts of taxes, whether direct or indirect.[82] But, it may be asked, if such was the intention, why were the subsequent subsequent words, duties, imposts and excises, added in the clause? Two reasons may be suggested; the first, that it was done to avoid all possibility of doubt in the construction of the clause, since, in common parlance, the word taxes is sometimes applied in contradistinction to duties, imposts, and excises, and, in the delegation of so vital a power, it was desirable to avoid all possible misconception of this sort; and, accordingly, we find, in the very first draft of the constitution, these explanatory words are added.[83] Another reason was, that the constitution prescribed different rules of laying taxes in different cases, and, therefore, it was indispensable to make a discrimination between the classes, to which each rule was meant to apply.[84]
§ 948. The second section of the first article, which has been already commented on for another purpose, declares, that "direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers." The fourth clause of the ninth section of the same article (which would regularly be commented on in a future page) declares, that "no capitation, or other direct tax, shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." And the clause now under consideration, that "all duties, imposts, and excises shall be uniform throughout the United States." Here, then, two rules are prescribed, the rule of apportionment (as it is called) for direct taxes, and the rule of uniformity for duties, imposts, and excises. If there are any other kinds of taxes, not embraced in one or the other of these two classes, (and it is certainly difficult to give full effect to the words of the constitution without supposing them to exist,) it would seem, that congress is left at full liberty to levy the same by either rule, or by a mixture of both rules, or perhaps by any other rule, not inconsistent with the general purposes of the constitution.[85] It is evident, that "duties, imposts, and excises" are indirect taxes in the sense of the constitution. But the difficulty still remains, to ascertain^ what taxes are comprehended under this description; and what under the description of direct taxes. It has been remarked by Adam Smith, that the private revenue of individuals arises ultimately from three different sources, rent, profit, and wages; and, that every public tax must be finally paid from some one, or all of these different sorts of revenue.[86] He treats all taxes upon land, or the produce of land, or upon houses, or parts, or appendages thereof, (such as hearth taxes and window taxes,) under the head of taxes upon rent; all taxes upon stock, and money at interest, upon other personal property yielding an income, and upon particular employments, or branches of trade and business, under the head of taxes on profits; and taxes upon salaries under the head of wages. He treats capitation taxes and taxes on consumable articles, as mixed taxes, falling upon all or any of the different species of revenue.[87] A full consideration of these different classifications of taxes belongs more properly to a treatise upon political economy, than upon constitutional law.
§ 949. The word "duties" has not, perhaps, in all cases a very exact signification, or rather it is used sometimes in a larger, and sometimes in a narrower sense. In its large sense, it is very nearly an equivalent to taxes, embracing all impositions or charges levied on persons or things.[88] In its more restrained sense, it is often used as equivalent to "customs," which appellation is usually applied to those taxes, which are payable upon goods and merchandise imported, or exported, and was probably given on account of the usual and constant demand of them for the use of kings, states, and governments.[89] In this sense, it is nearly synonymous with "imposts," which is sometimes used in the large sense of taxes, or duties, or impositions, and sometimes in the more restrained sense of a duty on imported goods and merchandise.[90] Perhaps it is not unreasonable to presume, that this narrower sense might be in the minds of the framers of the constitution, when this clause was adopted, since, in another clause, it is subsequently provided, that "No tax or duty shall be laid on articles exported from any state;" and, that "No state shall, without the consent of congress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws."[91] There is another provision, that "No state shall, without the consent of congress, lay any duty of tonnage," &c.; from which, perhaps, it may be gathered, that a tonnage duty, (by which is to be understood, not the ancient custom in England, so called, on wines imported,[92] but a duty on the tonnage of ships and vessels,) was not deemed an impost, strictly, but a duty. However, it must be admitted, that little certainty can be arrived at from such slight changes of phraseology, where the words are susceptible of various interpretations, and of more or less expansion. The most, that can be done, is, to offer a probable conjecture from the apparent use of words in a connection, where it is desirable not to deem any one superfluous, or synonymous with the others, A learned commentator has supposed, that the words, "duties and imposts," in the constitution, were probably intended to comprehend every species of tax or contribution, not included under the ordinary terms, "taxes and excises."[93] Another learned judge has said,[94] "what is the natural and common, or technical and appropriate, meaning of the words, duty and excise, it is not easy to ascertain. They present no clear or precise idea to the mind. Different persons will annex different significations to the terms." On the same occasion, another learned judge said, "The term, duty, is the most comprehensive, next to the generical term, tax; and practically in Great Britain, (whence we take our general ideas of taxes, duties, imposts, excises, customs, &c.) embraces taxes on stamps, tolls for passage, &c., and is not confined to taxes on importations only."[95]
§ 940. "Excises" are generally deemed to be of an opposite nature to "imposts," in the restrictive sense of the latter term, and are defined to be an inland imposition, paid sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the last stage before the consumption.[96]
§ 951. But the more important inquiry is, what are direct taxes in the sense of the constitution, since they are required to be laid by the rule of apportionment, and all indirect taxes, whether they fall under the head of "duties, imposts, or excises," or under any other description, may be laid by the rule of uniformity. It is clear, that capitation taxes,[97] or, as they are more commonly called, poll taxes, that is, taxes upon the polls, heads, or persons, of the contributors, are direct taxes, for the constitution has expressly enumerated them, as such. "No capitation, or other direct tax, shall be laid," &c. is the language of that instrument.
§ 952. Taxes on lands, houses, and other permanent real estate, or on parts or appurtenances thereof, have always been deemed of the same character, that is, direct taxes.[98] It has been seriously doubted, if, in the sense of the constitution, any taxes are direct taxes, except those on polls or on lands. Mr. Justice Chase, in Hylton v. United States, (3 Dall. R. 171,) said,§ 953. In the year 1794, congress passed an act,[100] laying duties upon carriages for the conveyance of persons, which were kept by or for any person, for his own use, or to be let out to hire, or for the conveying of passengers, to wit, for every coach the yearly sum of ten dollars, &c. &c.; and made the levy uniform throughout the United States. The constitutionality of the act was contested, in the case before stated,[101] upon the ground, that it was a direct tax, and so ought to be apportioned among the states according to their numbers. After solemn argument, the Supreme Court decided, that it was not a direct tax within the meaning of the constitution. The grounds of this decision, as stated in the various opinions of the judges, were; first, the doubt, whether any taxes were direct in the sense of the constitution, but capitation and land taxes, as has been already suggested; secondly, that in cases of doubt, the rule of apportionment ought not to be favoured, because it was matter of compromise, and in itself radically indefensible and wrong; thirdly, the monstrous inequality and injustice of the carriage tax, if laid by the rule of apportionment, which would show, that no tax of this sort could have been contemplated by the convention, as within the rule of apportionment; fourthly, that the terms of the constitution were satisfied by confining the clause, respecting direct taxes, to capitation and land taxes; fifthly, that, accurately speaking, all taxes on expenses or consumption are indirect taxes, and a tax on carriages is of this kind; and, sixthly, (what is probably of most cogency and force, and of itself decisive,) that no tax could be a direct one in the sense of the constitution, which was not capable of apportionment according to the rule laid down in the constitution. Thus, suppose ten dollars were contemplated as a tax on each coach or post-chaise in the United States, and the number of such carriages in the United States were one hundred and five, and the number of representatives in congress the same. This would produce ten hundred and fifty dollars. The share of Virginia would be 19/100 parts, or $90; the share of Connecticut would be 7/100 parts, or $70. Suppose, then, in Virginia, there are fifty carriages, the sum of $190 must be collected from the owners of these carriages, and apportioned among them, which would make each owner pay $3.80. And suppose, in Connecticut, there are but two carriages, the share of that state ($70) must be paid by the owners of those two carriages, viz. $35 each. Yet congress, in such a case, intend to lay a tax of but ten dollars on each coach. And if, in any state, there should be no coach or post-chaise owned, then, there could be no apportionment at all. The absurdity, therefore, of such a mode of taxation demonstrates, that such a tax cannot be a direct tax in the sense of the constitution. It is no answer to this reasoning, that congress, having determined to raise such a sum of money, as such a tax on carriages would produce, might apportion the sum due by the rule of apportionment, and then order it to be collected on different articles, selected in each state. That would be, not to lay and collect a tax on carriages, but on the articles, which were made contributory to the payment. Thus, the tax might be called a tax on carriages, and levied on horses. And the same objection would lie to an apportionment of the sum, and then a general assessment of it by congress upon all articles.[102]
§ 954. Having endeavoured to point out the leading distinctions between direct and indirect taxes, and that duties, imposts, and excises, in the sense of the constitution, belong to the latter class, the order of the subject would naturally lead us to the inquiry, why direct taxes are required to be governed by the rule of apportionment; and why "duties, imposts, and excises" are required to be uniform throughout the United States. The answer to the former will be given, when we come to the farther examination of certain prohibitory and restrictive clauses of the constitution on the subject of taxation. The answer to the latter may be given in a few words. It was to cut oft all undue preferences of one state over another in the regulation of subjects affecting their common interests. Unless duties, imposts, and excises were uniform, the grossest and most oppressive inequalities, vitally affecting the pursuits and employments of the people of different states, might exist. The agriculture, commerce, or manufactures of one state might be built up on the ruins of those of another; and a combination of a few states in congress might secure a monopoly of certain branches of trade and business to themselves, to the injury, if not to the destruction, of their less favoured neighbours. The constitution throughout all its provisions is an instrument of checks, and restraints, as well as of powers. It does not rely on confidence in the general government to preserve the interests of all the states. It is founded in a wholesome and strenuous jealousy, which, foreseeing the possibility of mischief, guards with solicitude against any exercise of power, which may endanger the states, as far as it is practicable. If this provision, as to uniformity of duties, had been omitted, although the power might never have been abused to the injury of the feebler states of the Union, (a presumption, which history does not justify us in deeming quite sale or certain;) yet it would, of itself, have been sufficient to demolish, in a practical sense, the value of most of the other restrictive clauses in the constitution. New York and Pennsylvania might, by an easy combination with the Southern states, have destroyed the whole navigation of New England. A combination of a different character, between the New England and the Western states, might have borne down the agriculture of the South; and a combination of a yet different character might have struck at the vital interests of manufactures. So that the general propriety of this clause is established by its intrinsic political wisdom, as well as by its tendency to quiet alarms, and suppress discontents.[103]
§ 955. Two practical questions of great importance have arisen upon the construction of this clause, either standing alone, or in connection with other clauses, and incidental powers, given by the constitution. One is, whether the government has a right to lay taxes for any other purpose, than to raise revenue, however much that purpose may be for the common defence, or general welfare. The other is, whether the money, when raised, can be appropriated to any other purposes, than such, as are pointed out in the other enumerated powers of congress. The former involves the question, whether congress can lay taxes to protect and encourage domestic manufactures; the latter, whether congress can appropriate money to internal improvements. Each of these questions has given rise to much animated controversy; each has been affirmed and denied, with great pertinacity, zeal, and eloquent reasoning; each has become prominent in the struggles of party; and defeat in each has not hitherto silenced opposition, or given absolute security to victory. The contest is often renewed; and the attack and defence maintained with equal ardour. In discussing this subject, we are treading upon the ashes of yet unextinguished fires,—incedimus per ignes suppositos cineri doloso;—and while the nature of these Commentaries requires, that the doctrine should be freely examined, as maintained on either side, the result will be left to the learned reader, without a desire to influence his judgment, or dogmatically to announce that belonging to the commentator.
§ 956. First, then, as to the question, whether congress can lay taxes, except for the purposes of revenue. This subject has been already touched, in considering what is the true reading, and interpretation of the clause, conferring the power to lay taxes. If the reading and interpretation, there insisted on, be correct, it furnishes additional means to resolve the question, now under consideration.
§ 957. The argument against the constitutional authority is understood to be maintained on the following grounds, which, though applied to the protection of manufactures, are equally applicable to all other cases, where revenue is not the object. The general government is one of specific powers, and it can rightfully exercise only the powers expressly granted, and those, which may be "necessary and proper" to carry them into effect; all others being reserved expressly to the states, or to the people. It results necessarily, that those, who claim to exercise a power under the constitution, are bound to show, that it is expressly granted, or that it is "necessary and proper," as a means to execute some of the granted powers. No such proof has been offered in regard to the protection of manufactures.
§ 958. It is true, that the eighth section of the first article of the constitution authorizes congress to lay and collect an impost duty; but it is granted, as a tax power, for the sole purpose of revenue; a flower, in its nature, essentially different from that of imposing protective, or prohibitory duties. The two are incompatible; for the prohibitory system must end in destroying the revenue from imports. It has been said, that the system is a violation of the spirit, and not of the letter of the constitution. The distinction is not material. The constitution may be as grossly violated by acting against its meaning, as against its letter. The constitution grants to congress the power of imposing a duty on imports for revenue, which power is abused by being converted into an instrument for rearing up the industry of one section of the country on the ruins of another. The violation, then, consists in using a power, granted for one object, to advance another, and that by a sacrifice of the original object. It is in a word a violation of perversion, the most dangerous of all, because the most insidious and difficult to resist. Such is the reasoning emanating from high legislative authority.[104] On another interesting occasion, the argument has been put in the following shape. It is admitted, that congress has power to lay and collect such duties, as they may deem necessary for the purposes of revenue, and within these limits so to arrange those duties, as incidentally, and to that extent to give protection to the manufacturer. But the right is denied to convert, what is here denominated the incidental, into the principal power, and transcending the limits of revenue, to impose an additional duty substantially and exclusively for the purpose of affording that protection. Congress may countervail the regulations of a foreign power, which may be hostile to our commerce; but their authority is denied permanently to prohibit all importation, for the purpose of securing the home market exclusively to the domestic manufacturer; thereby destroying the commerce they were entrusted to regulate, and fostering an interest, with which they have no constitutional power to interfere. To do so, therefore; is a palpable abuse of the taxing power, which was conferred for the purpose of revenue; and if it is referred to the authority to regulate commerce, it is as obvious a perversion of that power, since it may be extended to an utter annihilation of the objects, which it was intended to protect.[105]
§ 959. In furtherance of this reasoning, it has been admitted, that under the power to regulate commerce, congress is not limited to the imposition of duties upon imports for the sole purpose of revenue. It may impose retaliatory duties on foreign powers; but these retaliatory duties must be imposed for the regulation of commerce, not for the encouragement of manufactures. The power to regulate manufactures, not having been confided to congress, they have no more right to act upon it, than they have to interfere with the systems of education, the poor laws, or the road laws, of the states. Congress is empowered to lay taxes for revenue, it is true; but there is no power to encourage, protect, or meddle with manufactures.[106]
§ 960. It is unnecessary to consider the argument at present, so far as it bears upon the constitutional authority of congress to protect or encourage manufactures; because that subject will more properly come under review, in all its bearings, under another head, viz. the power to regulate commerce, to which it is nearly allied, and from which it is more usually derived. Stripping the argument, therefore, of this adventitious circumstance, it resolves itself into this statement. The power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes. The application for other purposes is an abuse of the powder; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority. Whenever money or revenue is wanted for constitutional purposes, the power to lay taxes may be applied to obtain it. When money or revenue is not so wanted, it is not a proper means for any constitutional end.
§ 961. The argument in favour of the constitutional authority is grounded upon the terms and the intent of the constitution. It seeks for the true meaning and objects of the power according to the obvious sense of the language, and the nature of the government proposed to be established by that instrument. It relies upon no strained construction of words; but demands a fair and reasonable interpretation of the clause, without any restrictions not naturally implied in it, or in the context. It will not do to assume, that the clause was intended solely for the purposes of raising revenue; and then argue, that being so, the power cannot be constitutionally applied to any other purposes. The very point in controversy is, whether it is restricted to purposes of revenue. That must be proved; and cannot be assumed, as the basis of reasoning.
§ 962. The language of the constitution is, "Congress shall have power to lay and collect taxes, duties, imposts, and excises." If the clause had stopped here, and remained in this absolute form, (as it was in fact, when reported in the first draft in the convention,) there could not have been the slightest doubt on the subject. The absolute power to lay taxes includes the power in every form, in which it maybe used, and for every purpose, to which the legislature may choose to apply it. This results from the very nature of such an unrestricted power. A fortiori it might be applied by congress to purposes, for which nations have been accustomed to apply to it. Now, nothing is more clear, from the history of commercial nations, than the fact, that the taxing power is often, very often, applied for other purposes, than revenue. It is often applied, as a regulation of commerce. It is often applied, as a virtual prohibition upon the importation of particular articles, for the encouragement and protection of domestic products, and industry; for the support of agriculture, commerce, and manufactures;[107] for retaliation upon foreign monopolies and injurious restrictions;[108] for mere purposes of state policy, and domestic economy; sometimes to banish a noxious article of consumption; sometimes, as a bounty upon an infant manufacture, or agricultural product; sometimes, as a temporary restraint of trade; sometimes, as a suppression of particular employments; sometimes, as a prerogative power to destroy competition, and secure a monopoly to the government![109]
§ 963. If, then, the power to lay taxes, being general, may embrace, and in the practice of nations does embrace, all these objects, either separately, or in combination, upon what foundation does the argument rest, which assumes one object only, to the exclusion of all the rest? which insists, in effect, that because revenue may be one object, therefore it is the sole object of the power? which assumes its own construction to be correct, because it suits its own theory, and denies the same right to others, entertaining a different theory? If the power is general in its terms, is it not an abuse of all fair reasoning to insist, that it is particular? to desert the import of the language, and to substitute other and different language? Is this allowable in regard to any instrument? Is it allowable in an especial manner, as to constitutions of government, growing out of the rights, dudes, and exigencies of nations, and looking to an infinite variety of circumstances, which may require very different applications of a given power?
§ 964. In the next place, then, is the power to lay taxes, given by the constitution, a general power; or is it a limited power? If a limited power, to what objects is it limited by the terms of the constitution?
§ 965. Upon this subject, (as has been already stated,) three different opinions appear to have been held by statesmen of no common sagacity and ability. The first is, that the power is unlimited; and that the subsequent clause, "to pay the debts, and provide for the common defence and general welfare," is a substantive, independent power. In the view of those, who maintain this opinion, the power, being general, cannot with any consistency be restrained to purposes of revenue.
§ 966. The next is, that the power is restrained by the subsequent clause, so that it is a power to lay taxes in order to pay debts, and to provide for the common defence and general welfare. Is raising revenue the only proper mode to provide for the common defence and general welfare? May not the general welfare, in the judgment of congress, be, in given circumstances, as well provided for, nay better provided for, by prohibitory duties, or by encouragements to domestic industry of all sorts? If a tax of one sort, as on tonnage, or foreign vessels, will aid commerce, and a tax on foreign raw materials will aid agriculture, and a tax on imported fabrics will aid domestic manufactures, and so promote the general welfare; may they not be all constitutionally united by congress in a law for this purpose? If congress can unite them all, may they not sustain them severally in separate laws? Is a tax to aid manufactures, or agriculture, or commerce, necessarily, or even naturally, against the general welfare, or the common defence? Who is to decide upon such a point? Congress, to whom the authority is given to exercise the power? Or any other body, state or national, which may choose to assume it?
§ 967. Besides; if a particular act of congress, not for revenue, should be deemed an excess of the powers; does it follow, that all other acts are so? If the common defence or general welfare can be promoted by laying taxes in any other manner, than for revenue, who is at liberty to say, that congress cannot constitutionally exercise the power for such a purpose? No one has a right to say, that the com in on defence and general welfare can never be promoted by laying taxes, except for revenue. No one has ever yet been bold enough to assert such a proposition. Different men have entertained opposite o})inions on subjects of this nature. It is a matter of theory and speculation, of political economy, and national policy, and not a matter of power. It may be wise or unwise to lay taxes, except for revenue; but the wisdom or inexpediency of a measure is no test of its constitutionality. Those, therefore, who hold the opinion above stated, must unavoidably maintain, that the power to lay taxes is not confined to revenue; but extends to all cases, where it is proper to be used for the common defence and general welfare.[110] One of the most effectual means of defence against the injurious regulations and policy of foreign nations, and which is most commonly resorted to, is to apply the power of taxation to the products and manufactures of foreign nations by way of retaliation; and, short of war, this is found to be practically that, which is felt most extensively, and produces the most immediate redress. How, then, can it be imagined for a moment, that this was not contemplated by the framers of the constitution, as a means to provide for the common defence and general welfare?
§ 968. The third opinion is, (as has been already stated,) that the power is restricted to such specific objects, as are contained in the other enumerated powers. Now, if revenue be not the sole and exclusive means of carrying into effect all these enumerated powers, the advocates of this doctrine must maintain with those of the second opinion, that the power is not limited to purposes of revenue. No man will pretend to say, that all those enumerated powers have no other objects, or means to effectuate them, than revenue. Revenue may be one mode; but it is not the sole mode. Take the power "to regulate commerce." Is it not clear from the whole history of nations, that laying taxes is one of the most usual modes of regulating commerce? Is it not, in many cases, the best means of preventing foreign monopolies, and mischievous commercial restrictions? In such cases, then, the power to lay taxes is confessedly not for revenue. If so, is not the argument irresistible, that it is not limited to purposes of revenue? Take another power, the power to coin money and regulate its value, and that of foreign coin; might not a tax be laid on certain foreign coin for the purpose of carrying this into effect by suppressing the circulation of such coin, or regulating its value? Take the power to promote the progress of science and useful arts; might not a tax be laid on foreigners, and foreign inventions, in aid of this power, so as to suppress foreign competition, or encourage domestic science and arts? Take another power, vital in the estimation of many statesmen to the security of a republic,—the power to provide for organizing, arming, and disciplining the militia; may not a tax be laid on foreign arms, to encourage the domestic manufacture of arms, so as to enhance our security, and give uniformity to our organization and discipline? Take the power to declare war, and its auxiliary powers; may not congress, for the very object of providing for the effectual exercise of these powers, and securing a permanent domestic manufacture and supply of powder, equipments, and other warlike apparatus, impose a prohibitory duty upon foreign articles of the same nature? If congress may, in any, or all of these cases, lay taxes; then as revenue constitutes, upon the very basis of the reasoning, no object of the taxes, is it not clear, that the enumerated powers require the power to lay taxes to be more extensively construed, than for purposes of revenue? It would be no answer to say, that the power of taxation, though in its nature only a power to raise revenue, may be resorted to, as an implied power to carry into effect these enumerated powers in any effectual manner. That would be to contend, that an express power to lay taxes is not coextensive with an implied power to lay taxes; that when the express power is given, it means a power to raise revenue only; but when it is implied, it no longer has any regard to this object. How, then, is a case to be dealt with, of a mixed nature, where revenue is mixed up with other objects in the framing of the law?
§ 969. If, then, the power to lay taxes were admitted to be restricted to cases within the enumerated powers; still the advocates of that doctrine are compelled to admit, that the power must be construed, as not confined to revenue, but as extending to all other objects within the scope of those powers. Where the power is expressly given, we are not at liberty to say, that it is to be implied. Being given, it may certainly be resorted to, as a means to effectuate all the powers, to which it is appropriate; not, because it is to be implied in the grant of those powers; but because it is expressly granted, as a substantive power, and may be used, of course, as an auxiliary to them.[111]
§ 970. So that, whichever construction of the power to lay taxes is adopted, the same conclusion is sustained, that the power to lay taxes is not by the constitution confined to purposes of revenue. In point of fact, it has never been limited to such purposes by congress; and all the great functionaries of the government have constantly maintained the doctrine, that it was not constitutionally so limited.[112]
§ 971. Such is a general summary of the reasoning on each side, so far as it refers to the power of laying taxes. It will be hereafter resumed in examining the nature and extent of the power to regulate commerce.
§ 972. The other question is, whether congress has any power to appropriate money, raised by taxation or otherwise, for any other purposes, than those pointed out in the enumerated powers, which follow the clause respecting taxation. It is said, "raised by taxation or otherwise;" for there may be, and in fact are, other sources of revenue, by which money may, and does come into the treasury of the United States otherwise, than by taxation; as, for instance, by fines, penalties, and forfeitures; by sales of the public lands, and interests and dividends on bank stocks; by captures and prize in times of war; and by other incidental profits and emoluments growing out of governmental transactions and prerogatives. But, for all the common purposes of argument, the question may be treated, as one growing out of levies by taxation.
§ 973. The reasoning, upon which the opinion, adverse to the authority of congress to make appropriations not within the scope of the enumerated powers, is maintained, has been already, in a great measure, stated in the preceding examination of the grammatical construction of the clause, giving the power to lay taxes.[113] The controversy is virtually at an end, if it is once admitted, that the words, "to provide for the common defence and general welfare," are a part and qualification of the power to lay taxes; for then, congress has certainly a right to appropriate money to any purposes, or in any manner, conducive to those ends. The whole stress of the argument is, therefore, to establish, that the words, "to provide for the common defence and general welfare," do not form an independent power, nor any qualification of the power to lay taxes. And the argument is, that they are "mere general terms, explained and limited by the subjoined specifications." It is attempted to be fortified (as has been already seen) by a recurrence to the history of the confederation; to the successive reports and alterations of the tax clause in the convention; to the inconveniencies of such a large construction; and to the supposed impossibility, that a power to make such appropriations for the common defence and general welfare, should not have been, at the adoption of the constitution, a subject of great alarm, and jealousy; and as such, resisted in and out of the state conventions.[114] § 974. The argument in favour of the power is derived, in the first place, from the language of the clause, conferring the power, (which it is admitted in its literal terms covers it;[115]) secondly, from the nature of the power, which renders it in the highest degree expedient, if not indispensable for the due operations of the national government; thirdly, from the early, constant and decided maintenance of it by the government and its functionaries, as well as by many of our ablest statesmen from the very commencement of the constitution. So, that it has the language and intent of the text, and the practice of the government to sustain it against an artificial doctrine, set up on the other side.
§ 975. The argument derived from the words and intent has been so fully considered already, that it cannot need repetition. It is summed up with great force in the report of the secretary of the treasury[116] on manufactures, in 1791. "The national legislature," says he,§ 976. But the most thorough and elaborate view, which perhaps has ever been taken of the subject, will be found in the exposition of President Monroe, which accompanied his message respecting the bill for the repairs of the Cumberland Road, (4th of May, 1822.) The following passage contains, what is most direct to the present purpose; and, though long, it will amply reward a diligent perusal. After quoting the clause of the constitution respecting the power to lay taxes, and to provide for the common defence and general welfare, he proceeds to say,
§ 977.§ 988. In regard to the practice of the government, it has been entirely in conformity to the principles here laid down. Appropriations have never been limited by congress to cases falling within the specific powers enumerated in the constitution, whether those powers be construed in their broad, or their narrow sense. And in an especial manner appropriations have been made to aid internal improvements of various sorts, in our roads, our navigation, our streams, and other objects of a national character and importance.[118] In some cases, not silently, but upon discussion, congress has gone the length of making appropriations to aid destitute foreigners, and cities labouring under severe calamities; as in the relief of the St. Domingo refugees, in 1794, and the citizens of Venezuela, who suffered from an earthquake in 1812.[119] An illustration equally forcible, of a domestic character, is in the bounty given in the cod-fisheries, which was strenuously resisted on constitutional grounds in 1792; but which still maintains its place in the statute book of the United States.[120]
§ 989. No more need be said upon this subject in this place. It will be necessarily resumed again in the discussion of other clauses of the constitution, and especially of the powers to regulate commerce, to establish post-offices and post-roads, and to make internal improvements.
§ 990. In order to prevent the necessity of recurring again to the subject of taxation, it seems desirable to bring together, in this connection, all the remaining provisions of the constitution on this subject, though they are differently arranged in that instrument. The first one is, "no capitation or other direct tax shall be laid, unless in proportion to the census, or enumeration, herein before directed to be taken." This includes poll taxes, and land taxes, as has been already remarked.
§ 991. The object of this clause doubtless is, to secure the Southern states against any undue proportion of taxation; and, as nearly as practicable, to overcome the necessary inequalities of direct tax. The South has a very large slave population; and consequently a poll tax, which should be laid by the rule of uniformity, would operate with peculiar severity on them. It would tax their property beyond its supposed relative value, and productiveness to white labour. Hence, a rule is adopted, which, in effect, in relation to poll taxes, exempts two fifths of all slaves from taxation; and thus is supposed to equalize the burthen with the white population.[121]
§ 992. In respect to direct taxes on land, the difficulties of making a due apportionment, so as to equalize the burthens and expenses of the Union according to the relative wealth and ability of the states, was felt as a most serious evil under the confederation. By that instrument, (it will be recollected,) the apportionment was to be among the states according; to the value of all land within each state, granted or surveyed for any person, and the buildings and improvements thereon, to be estimated in such mode, as congress should prescribe. The whole proceedings to accomplish such an estimate were so operose and inconvenient, that congress, in April, 1783,[122] recommended, as a substitute for the article, an apportionment, founded on the basis of population, adding to the whole number of white and other free citizens and inhabitants, including those bound to service for a term of years, three fifths of all other persons, &c. in each state; which is precisely the rule adopted in the constitution.
§ 993. Those, who are accustomed to contemplate the circumstances, which produce and constitute national wealth, must be satisfied, that there is no common standard, by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed, as the rule of state contributions, has any pretension to being deemed a just representative of that wealth. If we compare the wealth of the Netherlands with that of Russia or Germany, or even of France, and at the same time compare the total value of the lands, and the aggregate population of the contracted territory of the former, with the total value of the lands, and the aggregate population of the immense regions of either of the latter kingdoms, it will be at once discovered, that there is no comparison between the proportions of these two subjects, and that of the relative wealth of those nations. If a like parallel be run between the American states, it will furnish a similar result.[123] Let Virginia be contrasted with Massachusetts, Pennsylvania with Connecticut, Maryland with Virginia, Rhode-Island with Ohio, and the disproportion will be at once perceived. The wealth of neither will be found to be, in proportion to numbers, or the value of lands.
§ 994. The truth is, that the wealth of nations depends upon an infinite variety of causes. Situation, soil, climate; the nature of the productions; the nature of the government; the genius of the citizens; the degree of information they possess; the state of commerce, of arts, and industry; the manners and habits of the people; these, and many other circumstances, too complex, minute, and adventitious to admit of a particular enumeration, occasion differences, hardly conceivable, in the relative opulence and riches of different countries. The consequence is, that there can be no common measure of national wealth; and, of course, no general rule, by which the ability of a state to pay taxes can be determined.[124] The estimate, however fairly or deliberately made, is open to many errors and inequalities, which become the fruitful source of discontents, controversies, and heart-burnings. These are sufficient, in themselves, to shake the foundations of any national government, when no common artificial rule is adopted to settle permanently the apportionment; and every thing is left open for debate, as often as a direct tax is to be imposed. Even in those states, where direct taxes are constantly resorted to, every new valuation or apportionment is found, practically, to be attended with great inconvenience, and excitements. To avoid these difficulties, the land tax in England is annually laid according to a valuation made in the reign of William the Third, (1692,) and apportioned among the counties, according to that valuation.[125] The gross inequality of this proceeding cannot be disguised; for many of the counties, then comparatively poor, are now enormously increased in wealth. What is Yorkshire or Lancashire now, with its dense manufacturing population, compared with what it then was ? Even when the population of each state is ascertained, the mode, by which the assessment shall be laid on the lands in the state, is a subject of no small embarrassment. It would be gross injustice to tax each house or acre to the same amount, however different may be its value, or however different its quality, situation, or productiveness. And in estimating the absolute value, so much is necessarily matter of opinion, that different judgments may, and will arrive at different results. And in adjusting the comparative values in different counties or towns, new elements of discord are unavoidably introduced.[126] In short, it may be affirmed without fear of contradiction, that some artificial rule of apportionment of a fixed nature is indispensable to the public repose; and considering the peculiar situation of the American states, and especially of the slave and agricultural states, it is difficult to find any rule of greater equality or justice, than that, which the constitution has adopted. And it may be added, (what was indeed foreseen,) that direct taxes on land will not, from causes sufficiently apparent, be resorted to, except upon extraordinary occasions, to supply a pressing want.[127] The history of the government has abundantly established the correctness of the remark; for in a period of forty years three direct taxes only have been laid; and those only with reference to the state and operations of war.
§ 995. The constitution having, in another clause, declared, that "Representatives and direct taxes shall be apportioned among the several states within this Union according to their respective numbers," and congress having, in 1815,[128] laid a direct tax on the District of Columbia, (according to the rule of apportionment,) a question was made, whether congress had constitutionally a right to lay such a tax, the district not being one of the states; and it was unanimously decided by the Supreme Court, that congress had such a right.[129] It was further held, that congress, in laying a direct tax upon the states, was not constitutionally bound to extend such tax to the district, or the territories of the United States; but, that it was a matter for their discretion. When, however, a direct tax is to be laid on the district or the territories, it can be laid only by the rule of apportionment. The reasoning, by which this doctrine is maintained, will be most satisfactorily seen by giving it in the very words used by the court on that occasion.
§ 996.§ 1011. The obvious object of these provisions is, to prevent any possibility of applying the power to lay taxes, or regulate commerce, injuriously to the interests of any one state, so as to favour or aid another. If congress were allowed to lay a duty on exports from any one state it might unreasonably injure, or even destroy, the staple productions, or common articles of that state.[130] The inequality of such a tax would be extreme. In some of the states, the whole of their means result from agricultural exports. In others, a great portion is derived from other sources; from external fisheries; from freights; and from the profits of commerce in its largest extent. The burthen of such a tax would, of course, be very unequally distributed. The power is, therefore, wholly taken away to intermeddle with the subject of exports. On the other hand, preferences might be given to the ports of one state by regulations, either of commerce or revenue, which might confer on them local facilities or privileges in regard to commerce, or revenue. And such preferences might be equally fatal, if individually given under the milder form of requiring an entry, clearance, or payment of duties in the the ports of any state, other than the ports of the state, to or from which the vessel was bound. The last clause, therefore, does not prohibit congress from requiring an entry or clearance, or payment of duties at the custom-house on importations in any port of a state, to or from which the vessel is bound; but cuts off the right to require such acts to be done in other states, to which the vessel is not bound.[131] In other words, it cuts off the power to require, that circuity of voyage, which, under the British colonial system, was employed to interrupt the American commerce before the revolution. No American vessel could then trade with Europe, unless through a circuitous voyage to and from a British port.[132]
§ 1012. The first part of the clause was reported in the first draft of the constitution. But it did not pass without opposition; and several attempts were made to amend it; as by inserting after the word "duty" the words, "for the purpose of revenue," and by inserting at the end of it, "unless by consent of two thirds of the legislature;" both of which propositions were negatived.[133] It then passed by a vote of seven states against four.[134] Subsequently, the remaining parts of the clause were proposed by a report of a committee, and they appear to have been adopted without objection.[135] Upon the whole, the wisdom and sound policy of this restriction cannot admit of reasonable doubt; not so much that the powers of the general government were likely to be abused, as that the constitutional prohibition would allay jealousies, and confirm confidence.[136] The prohibition extends not only to exports, but to the exporter. Congress can no more rightfully tax the one, than the other.[137]
§ 1013. The next clause contains a prohibition on the states for the like objects and purposes.§ 1014. Inspection laws are not, strictly speaking, regulations of commerce, though they may have a remote and considerable influence on commerce. The object of inspection laws is to improve the quality of articles produced by the labour of a country; to fit them for exportation, or for domestic use. These laws act upon the subject, before it becomes an article of commerce, foreign or domestic, and prepare it for the purpose. They form a portion of that immense mass of legislation, which embraces every thing in the territory of a state not surrendered to the general government. Inspection laws^ quarantine laws, and health laws, as well as laws for regulating the internal commerce of a state, and others, which respect roads, fences, &c. are component parts of state legislation, resulting from the residuary powers of state sovereignty. No direct power over these is given to congress, and consequently they remain subject to state legislation, though they may be controlled by congress, when they interfere with their acknowledged powers.[142] Under the confederation, there was a provision, that "no state shall lay any imposts or duties, Which may interfere with any stipulations of treaties entered into by the United States," &c. &c. This prohibition was notoriously (as has been already stated) disregarded by the states; and in the exercise by the states of their general authority to lay imposts and duties, it is equally notorious, that the most mischievous restraints, preferences, and inequalities existed; so, that very serious irritations and feuds were constantly generated, which threatened the peace of the Union, and indeed must have inevitably led to a dissolution of it.[143] The power to lay duties and imposts on imports and exports, and to lay a tonnage duty, are doubtless properly considered a part of the taxing power; but they may also be applied, as a regulation of commerce.[144]
§ 1015. Until a recent period, no difficulty occurred in regard to the prohibitions of this clause. Congress, with a just liberality, gave full effect to the inspection laws of the states, and required them to be observed by the revenue officers of the United States.[145] In the year 1821, the state of Maryland passed an act requiring, that all importers of foreign articles or commodities, &c. by bale or package, or of wine, rum, &c. &c., and other persons selling the same by wholesale, bale, or package, hogshead, barrel, or tierce, should, before they were authorized to sell, take out a license, for which they were to pay fifty dollars, under certain penalties. Upon this act a question arose, whether it was, or not a violation of the constitution of the United States, and especially of the prohibitory clause now under consideration. Upon solemn argument, the Supreme Court decided, that it was.[146] The judgment of the Supreme Court, delivered on that occasion, contains a very full exposition of the whole subject; and although it is long, it seems difficult to abridge it without marring the reasoning, or in some measure leaving imperfect a most important constitutional inquiry. It is, therefore, inserted at large.
§ 1016.§ 1028. "We think, then, that the act, under which the plaintiffs in error were indicted, is repugnant to that article of the constitution, which declares, that 'no state shall lay any impost or duties on imports or exports.'"[147]
§ 1029. As the power of taxation exists in the states concurrently with the United States, subject only to the restrictions imposed by the constitution, several questions have from time to time arisen in regard to the nature and extent of the state power of taxation.
§ 1030. In the year 1818, the state of Maryland passed an act, laying a tax on all banks, and branches thereof, not chartered by the legislature of that state; and a question was made, whether the state had a right under that act, to lay a tax on the Branch Bank of the United States in that state. This gave rise to a most animated discussion in the Supreme Court of the United States; where it was finally decided, that the tax was, as to the Bank of the United States, unconstitutional.[148] The reasoning of the Supreme Court, on this subject, was as follows.
§ 1031.§ 1049. It is observable, that these decisions turn upon the point, that no state can have authority to tax an instrument of the United States, or thereby to diminish the means of the United States, used in the exercise of powers confided to it. But there is no prohibition upon any state to tax any bank or other corporation created by its own authority, unless it has restrained itself, by the charter of incorporation, from the power of taxation.[152] This subject, however, will more properly fall under notice in some future discussions. It may be added, that congress may, without doubt, tax state banks; for it is clearly within the taxing power confided to the general government. When congress tax the chartered institutions of the states, they tax their own constituents; and such taxes must be uniform.[153] But when a state taxes an institution created by congress, it taxes an instrument of a superior and independent sovereignty, not represented in the state legislature.
- ↑ See 2 Elliot's Debates, 327, 328. See Dane's App. § 41, p. 48; see also 1 Elliot's Debates, 93; id. 293; id. 300; 2 Wilson's Law Lect. 178, 180, 181; 4 Elliot's Debates, 224; 2 U.S. Law Journal, April, 1826, p. 251, 264, 270 to 282. This last work contains, in p. 270 et seq. a very elaborate exposition of the doctrine.—Mr. Jefferson has, upon more than one occasion, insisted, that this was the federal doctrine, that is, the doctrine maintained by the federalists, as a party; and that the other doctrine was that of the republicans, as a party.[a 1] The assertion is incorrect; for the latter opinion was constantly maintained by some of the most strenuous federalists at the time of the adoption of the constitution, and has since been maintained by many of them.[a 2] It is remarkable, that Mr. George Mason, one of the most decided opponents of the constitution in the Virginia convention, held the opinion, that the clause, to provide for the common defence and general welfare, was a substantive power. He added, "That congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the constitution in respect to all powers, which are not granted, that they are retained by the states; otherwise the power of providing for the general welfare may be perverted to its destruction."[a 3]
- ↑ President Monroe's Message, 4th May, 1822, p. 32, 33.
- ↑ The Federalist, No. 41.
- ↑ See Debates on the Judiciary in 1802, p. 332; Dane's App. § 41; President Monroe's Message on Internal Improvements, 4th May, 1822, p. 32, 33; 1 Tuck. Black. App. 231.
- ↑ Journ. of Convention, p. 356; id. 494; 2 United States Law Journal, p. 264, April, 1826, New-York.—In the Federalist, No. 41, the circumstance, that it is separated from the succeeding clauses by a semicolon is noticed. The printed Journal of the Convention gives the revised draft from Mr. Brearly's copy, as above stated. See Journal of Convention, p. 351, 356. See President Monroe's Message on Internal Improvements, 4th May, 1822, p. 16, 32, &c.
- ↑ Journ. of Convention, p. 323, 324, 326.
- ↑ President Monroe's Message, 4 May, 1822, p. 32, 33.
- ↑ President Madison's Letter to Mr. Stevenson, 27 Nov. 1830.
- ↑ "Or" is the word in the article.
- ↑ Virginia Report and Resolutions of 7 January, 1800. See also the Federalist, No. 41.
- ↑ See the Federalist, No. 40.
- ↑ Mr. Madison himself, in his Letter to Mr. Stevenson, Nov. 27, 1830, admits the force of these remarks in their full extent. His language is, "If the practice of the revolutionary congress he pleaded in opposition to this view of the case," (i.e. his view, that the words have no distinct meaning,) "the plea is met by the notoriety, that, on several accounts, the practice of that body is not the expositor of the articles of the confederation. These articles were not in force, until they were finally ratified by Maryland, in 1781. Prior to that event, the power of congress was measured by the exigencies of the war; and derived its sanction from the acquiescence of the states. After that event, habit, and a continued expediency, amounting often to a real, or an apparent necessity, prolonged the exercise of an undefined authority, which was the more readily overlooked, as the members of that body held their seats during pleasure; as its acts, particularly after the failure of the bills of credit, depended for their efficacy on the will of the states, and as its general impotency became manifest. Examples of departure from the prescribed rule are too well known to require proofs." So that it is admitted, that the practice, under the confederation, was notoriously such, as allowed appropriations by congress for any objects, which they deemed for the common defence and general welfare. And yet we are now called upon to take a new and modern gloss of that instrument, directly at variance with that practice. See also Mr. Wilson's pamphlet, on the constitutionality of the bank of North America, in 1785. The reason, why he does not allude to the terms "common defence and general welfare," in that argument, probably was, that there was no question respecting appropriations of money involved in that discussion. He strenuously contends, that congress had a right to charter the bank; and he alludes to the fifth article, which, for the convenient management of the general interests of the United States, provides for the appointment of delegates from the states. He deduces the power, from its being essentially national, and vitally important to the government. 3 Wilson's Law Lect. 397.
- ↑ 2 Elliot's Deb. 195.
- ↑ The Federalist, No. 40.—In the first draft, of Dr. Franklin, in 1775, the clause was as follows: "All charges of wars, and all other general expenses, to be incurred for the common welfare, shall be defrayed," &c.—In Mr. Dickinson's draft, in July, 1776, the words were, "All charges of wars, and all other expenses, that shall be incurred for the common defence, or general welfare," &c.; and these words were subsequently retained. 1 Secret Jour. of Congress, (printed in 1821,) p. 285, 294, 307, 323 to 325, 354.
- ↑ Virginia Resolutions, of 8th January, 1800. The same reasoning is in President Madison's Veto message, of 3d of March, 1817. 4 Elliot's Deb. 280, 281.
- ↑ 4 Elliot's Deb. 236.
- ↑ In a Debate of 7th of Febuary, 1792. (4 Elliot's Deb. 236.) Mr. Madison puts them, (manifestly as his own construction,) "as a sort of caption, or general description of the specified powers, and as having no farther meaning, and giving no further powers, than what is found in that specification." See also, Mr. Madison's Veto message, on the Bank Bonus Bill, 3d March, 1817. 4 Elliot's Deb. 280, 281.
- ↑ 4 Elliot's Deb. 280, 281.
- ↑ See the Federalist, No. 21, 22, 30; 1 Elliot's Deb. 318.
- ↑ See the Federalist, No. 30 to 37.
- ↑ See also 4 Elliot's Debates, 280, 281.
- ↑ Mr. Jefferson.
- ↑ Jefferson's Opinion on the Bank of the United States, 15th February, 1791; 4 Jefferson's Correspondence, 524, 525.—This opinion was deliberately reasserted by Mr. Jefferson on other occasions. There may, perhaps, also be found traces of an opinion still more restrictive in his later writings: but they are very obscure and unsatisfactory. See 4 Jefferson's Correspondence, 306, 416, 457; Message of President Jefferson, 2d December, 1806; 5 Wait's State Papers, 453, 458, 459.
- ↑ It was maintained by Mr. Hamilton, in his Treasury Report on Manufactures, (5th Dec. 1791,) and in his argument on the constitutionality of a National Bank, 23d Feb. 1791, p. 147, 148; by Mr. Gerry in the debate on the National Bank in Feb. 1791,(4 Elliot's Debates, 226;) by Mr. Ellsworth in a speech in 1788,(3 American Museum, 338;) and by President Monroe, in his Message of the 4th of May, 1822, (p. 33 to 38,) in an elaborate argument, which well deserves to be studied. He contends, that the power to lay taxes is confined to purposes for the common defence and general welfare. And that the power of appropriation of the monies is coextensive, that is, that it may be applied to any purposes of the common defence or general welfare. Mr. Adams, in his Letter to Mr. Speaker Stevenson, 11th of July, 1832, published since the preparation of these Commentaries, has given a masterly exposition of the clause, to which it may be important hereafter again to recur.
- ↑ 2 Elliot's Debates, 170, 183, 195, 328, 344; 3 Elliot's Debates, 262; 2 American Museum, 434; 1 Elliot's Debates, 311; id. 81, 82; 3 Elliot's Debates, 262, 290; 2 American Museum, 544.
- ↑ See cases referred to in President Monroe's Message, 4th of May, 1822; 1 Kent's Comm. Lect. p. 250, 251; 4 Elliot's Deb. 226, 243, 244, 279 to 282; Id. 291, 292; 2 United States Law Journal, April, 1826, p. 263 to 280; Webster's Speeches, 389 to 401, 411, 412, 426.
- ↑ 9 Wheat. R. 1, 199.
- ↑ 1 Kent's Comm. Lect. p. 251; Sergeant on Const. Law, ch. 28, p. 311 to 315; Rawle on the Constitution, ch. 9, p. 104; 2 United States Law Journal, April, 1826, p. 251 to 282.
- ↑ Journ. of Convention, 68, 86, 87, 135, 136.
- ↑ Journ. of Convention, 181, 182, 208.
- ↑ Journ. of Convention, 261.
- ↑ Journ. of Convention, 261.
- ↑ Id. 277.
- ↑ Journ. of Convention, 279, 280.
- ↑ Journ. of Convention, 284.
- ↑ Id. 291.
- ↑ Journ. of Convention, 323, 324, 326.
- ↑ Id. 351, 356.
- ↑ Journ. of Convention, 277.
- ↑ Journ. of Convention, 291. See also the Constitution, art. 6.
- ↑ Journal of Convention, 181, 182, 208.—The letter of Mr. Madison to Mr. Stevenson of 27th November, 1830, contains an historical examination of the origin and progress of this clause substantially the same, as that given above. After perusing it, I perceive no reason to change the foregoing reasoning. In one respect, Mr. Madison seems to labour under a mistake, viz. in supposing, that the proposition of the 25th of August, to add to the power to lay taxes, as previously amended on the 23d of August, the words, "for the payment of the debts and for defraying the expenses, that shall be incurred for the common defence and general welfare," was rejected on account of the generality of the phraseology. The known opinions of some of the states, which voted in the negative (Connecticut alone voted in the affirmative) shows, that it could not have been rejected on this account. It is most probable, that it was rejected, because it contained a restriction upon the power to tax; for this power appears at first to have passed without opposition in its general form.[a 4] It may be acceptable to the general reader to have the remarks of this venerable statesman in his own words, and therefore they are here inserted. After giving an historical review of the origin and progress of the whole clause, he says,
"A special provision in this mode could not have been necessary for the debts of the new congress; for a power to provide money, and a power to perform certain acts, of which money is the ordinary and appropriate means, must, of course, carry with them, a power to pay the expense of performing the acts. Nor was any special provision for debts proposed, till the case of the revolutionary debts was brought into view; and it is a fair presumption, from the course of the varied propositions, which have been noticed, that but for the old debts, and their association with the terms, 'common defence and general welfare,' the clause would have remained, as reported in the first draft of a constitution, expressing generally 'a power in congress to lay and collect taxes, duties, imposts and excises;' without any addition of the phrase 'to provide for the common defence and general welfare.' With this addition, indeed, the language of the clause being in conformity with that of the clause in the articles of confederation, it would be qualified, as in those articles, by the specification of powers subjoined to it. But there is sufficient reason to suppose, that the terms in question would not have been introduced, but for the introduction of the old debts, with which they happened to stand in a familiar, though inoperative, relation. Thus introduced, however, they pass undisturbed through the subsequent stages of the constitution.
"If it be asked, why the terms 'common defence and general welfare,' if not meant to convey the comprehensive power, which, taken literally, they express, were not qualified and explained by some reference to the particular power subjoined, the answer is at hand, that although it might easily have been done, and experience shows it might be well, if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by identity with the harmless character attached to it in the instrument, from which it was borrowed.
"But may it not be asked with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace, not only all the powers particularly expressed, but the indefinite power, which has been claimed under them, the intention was not so declared; why, on that supposition, so much critical labour was employed in enumerating the particular powers, and in defining and limiting their extent?
"The variations and vicissitudes in the modification of the clause, in which the terms 'common defence and general welfare' appear, are remarkable; and to he no otherwise explained, than by differences of opinion, concerning the necessity or the form of a constitutional provision for the debts of the revolution; some of the members, apprehending improper claims for losses by depreciated bills of credit; others, an evasion of proper claims, if not positively brought within the authorized functions of the new government; and others again, considering the past debts of the United States, as sufficiently secured by the principle, that no change in the government could change the obligations of the nation. Besides the indications in the Journal, the history of the period sanctions this explanation.
"But, it is to be emphatically remarked, that in the multitude of motions, propositions, and amendments, there is not a single one having reference to the terms 'common defence and general welfare,' unless we were so to understand the proposition containing them, made on August 25th, which was disagreed to by all the states, except one.
"The obvious conclusion, to which we are brought, is, that these terms, copied from the articles of confederation, were regarded in the new, as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therefore requiring no critical attention or studied precaution.
"If the practice of the revolutionary congress be pleaded in opposition to this view of the case, the plea is met by the notoriety, that on several accounts, the practice of that body is not the expositor of the 'articles of confederation.' These articles were not in force, till they were finally ratified by Maryland in 1781. Prior to that event, the power of congress was measured by the exigencies of the war, and derived its sanction from the acquiescence of the states. After that event, habit, and a continued expediency, amounting often to a real or apparent necessity, prolonged the exercise of an undefined authority, which was the more readily overlooked, as the members of the body held their seats during pleasure, as its acts, particularly after the failure of the bills of credit, depended for their efficacy on the will of the states; and as its general impotency became manifest. Examples of departure from the prescribed rule are too well known to require proof. The case of the old bank of North America might be cited, as a memorable one. The incorporating ordinance grew out of the inferred necessity of such an institution to carry on the war, by aiding the finances, which were starving under the neglect or inability of the states to furnish their assessed quotas. Congress was at the time so much aware of the deficient authority, that they recommended it to the state legislatures to pass laws giving due effect to the ordinance, which was done by Pennsylvania and several other states.
"Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a bank at such a crisis, published a small pamphlet, entitled 'Considerations on the Bank of North America,' in which he endeavoured to derive the power from the nature of the Union, in which the colonies were declared and became independent states; and also from the tenour of the 'articles of confederation' themselves. But what is particularly worthy of notice is, that with all his anxious search in those articles for such a power, he never glanced at the terms, 'common defence and general welfare,' as a source of it. He rather chose to rest the claim on a recital in the text, 'that for the more convenient management of the general interests of the United States, delegates shall be annually appointed to meet in congress,' which he said implied, that the United States had general rights, general powers, and general obligations, not derived from any particular state, nor from all the particular states, taken separately, but 'resulting from the union of the whole;' these general powers, not being controlled by the article declaring, that each state retained all powers not granted by the articles, because 'the individual states never possessed, and could not retain, a general power over the others.'
"The authority and argument here resorted to, if proving the ingenuity and patriotic anxiety of the author, on one hand, show sufficiently on the other, that the terms, 'common defence and general welfare,' could not, according to the known acceptation of them, avail his object.
"That the terms in question were not suspected in the convention, which formed the constitution, of any such meaning, as has been constructively applied to them; may be pronounced with entire confidence. For it exceeds the possibility of belief, that the known advocates in the convention for a jealous grant, and cautious definition of federal powers, should have silently permitted the introduction of words or phrases, in a sense rendering fruitless the restrictions and definitions elaborated by them.
"Consider, for a moment, the immeasurable difference between the constitution, limited in its powers to the enumerated objects; and expanded, as it would be by the import claimed for the phraseology in question. The difference is equivalent to two constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases; the other extended to all cases whatsoever. For what is the case, that would not be embraced by a general power to raise money; a power to provide for the general welfare; and a power to pass all laws necessary and proper to carry these powers into execution; all such provisions and laws superseding at the same time, all local laws and constitutions at variance with them? Can less be said, with the evidence before us, furnished by the Journal of the Convention itself, than that it is impossible, that such a constitution, as the latter, would have been recommended to the states by all the members of that body, whose names were subscribed to the instrument?
"Passing from this view of the sense, in which the terms, 'common defence and general welfare,' were used by the framers of the constitution, let us look for that, in which they must have been understood by the conventions, or rather by the people, who, through their conventions, accepted and ratified it. And here the evidence is, if possible, still more irresistible, that the terms could have been regarded, as giving a scope to federal legislation, infinitely more objectionable, than any of the specified powers, which produced such strenuous opposition, and calls for amendments, which might be safeguards against the dangers apprehended from them.
"Without recurring to the published debates of those conventions, which, as far as they can be relied on for accuracy, would, it is believed, not impair the evidence furnished by their recorded proceedings, it will suffice to consult the lists of amendments proposed by such of the conventions, as considered the powers granted to the government, too extensive, or not safely defined.
"Besides the restrictive and explanatory amendments to the text of the constitution, it may be observed, that a long list was premised under the name, and in the nature of 'Declaration of Rights;' all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number and nature of the amendments, proposed to be made specific and integral parts of the constitutional text.
"No less than seven states, it appears, concurred in adding to their ratifications a series of amendments, which they deemed requisite. Of these amendments, nine were proposed by the convention of Massachusetts; five by that of South-Carolina; twelve by that of New- Hampshire; twenty by that of Virginia; thirty-three by that of New-York; twenty-six by that of North-Carolina; and twenty-one by that of Rhode-Island.
"Here are a majority of the states, proposing amendments, in one instance thirty-three by a single state; all of them intended to circumscribe the power granted to the general government, by explanations, restrictions, or prohibitions, without including a single proposition from a single state referring to the terms, 'common defence and general welfare;' which, if understood to convey the asserted power, could not have failed to be the power most strenuously aimed at, because evidently more alarming in its range, than all the powers objected to, put together. And that the terms should have passed altogether unnoticed by the many eyes, which saw danger in terms and phrases employed in some of the most minute and limited of the enumerated powers, must be regarded as a demonstration, that it was taken for granted, that the terms were harmless, because explained and limited, as in the 'articles of confederation,' by the enumerated powers, which followed them.
"A like demonstration, that these terms were not understood in any sense, that could invest congress with powers not otherwise bestowed by the constitutional charter, may be found in what passed in the first session of congress, when the subject of amendments was taken up, with the conciliatory view of freeing the constitution from objections, which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms, 'common defence and general welfare,' unnoticed in the long list of amendments brought forward in the outset; but the Journals of Congress show, that in the progress of the discussions, not a single proposition was made in either branch of the legislature, which referred to the phrase, as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance and silence on such an occasion, and among so many members, who belonged to the part of the nation, which called for explanatory and restrictive amendments, and who had been elected, as known advocates for them, cannot be accounted for, without supposing, that the terms, 'common defence and general welfare,' were not, at that time, deemed susceptible of any such construction, as has since been applied to them.
"It may be thought, perhaps, due to the subject, to advert to a letter of October 5th, 1787, to Samuel Adams, and another of October 16th, of the same year, to the governor of Virginia, from R. H. Lee, in both of which it is seen, that the terms had attracted Ids notice, and were apprehended by him 'to submit to congress every object of human legislation.' But it is particularly worthy of remark, that although a member of the senate of the United States, when amendments to the constitution were before that house, and sundry additions and alterations were there made to the list sent from the other, no notice was taken of those terms, as pregnant with danger. It must be inferred, that the opinion formed by the distinguished member, at the first view of the constitution, and before it had been fully discussed and elucidated, had been changed into a conviction, that the terms did not fairly admit the construction he had originally put on them; and therefore needed no explanatory precaution against it."
Against the opinion of Mr. Madison, there are the opinions of men of great eminence, and well entitled to the confidence of their country; and among these may be enumerated Presidents Washington, Jefferson, and Monroe, and Mr. Hamilton. The opinion of the latter upon this very point will be given hereafter in his own words. - ↑ See The Federalist, No. 21, 30.
- ↑ 1 Tucker's Black. Comm. App. 235 et seq.; id. 244, 245.
- ↑ The Federalist, No. 30.
- ↑ Id.
- ↑ The Federalist, No. 31; id. No. 30; id. No. 21.
- ↑ The Federalist, No. 30.
- ↑ The Federalist, No. 21.
- ↑ The Federalist, No. 34; 1 Elliot's Debates, 77 to 89; id. 303 to 308; id. 309, 31 1 to 316, 321 to 329; id. 337; 2 Elliot's Debates, 95, 96, 118; id. 198 to 204; 3 Elliot's Debates, 261, 262, 290; 3 Amer. Museum, 334, 338; 1 Tucker's Black. Comm. 234, 235, 230.
- ↑ The Federalist, No. 31; 1 Elliot's Debates, 77, 78 to 89; id. 91, 105, 112; id. 293, 294 to 296; id. 301, 302, 303; id. 329 to 333; 2 Elliot's Debates, 52, 53, 208; 3 Elliot's Debates, 77 to 91; 1 Tuck. Black. Comm. App. 240; 2 Amer. Museum, 543, 544.
- ↑ 3 Amer. Museum, 423; 2 Elliot's Debates, 52, 53, 200, 206.
- ↑ See The Federalist, No. 30; 1 Elliot's Debates, 294; 1 Tucker's Black. Comm. App. 234, 235; 1 Elliot's Debates, 294, 295; 2 Elliot's Debates, 52, 53, 111, 112; id. 200, 206, 208.—It was moved in the convention, that whenever revenue was required to be raised by direct taxation, it should be apportioned among the states, and then requisitions made upon the states to pay the amount; and in default only of their compliance, congress should be authorized to pass acts directing the mode of collecting it. But this proposition was rejected by a vote of seven states against one, one state being divided.[a 5]
- ↑ The Federalist, No. 30; 1 Elliot's Debates, 303, 304; id. 325, 326, 327; 2 Elliot's Debates, 198, 199, 204.
- ↑ The Federalist, No. 21; 1 Elliot's Debates, 81, 82; 2 Elliot's Debates, 105; id. 199, 204, 236; 1 Tucker's Black. Comm. App. 234, 235, 236; 3Dall. R. 171, 178.
- ↑ The Federalist, No. 41. See 1 Elliot's Debates, 303 to 306.
- ↑ The Federalist, No. 30, 34.—"A government," (said one of our most distinguished statesmen, Mr. Ellsworth, of Connecticut, speaking on this very subject,) "which can command but half its resources, is like a man with but one arm to defend himself." Speech in Connecticut Convention, 7th January, 1788; 3 Amer. Museum, 338.
- ↑ The Federalist, No. 30.
- ↑ The Federalist, No. 30.
- ↑ The Federalist, No. 34.
- ↑ 3 Elliot's Debates, 290.
- ↑ In the recent war, of 1812–1813, between Great Britain, and the United States, we had abundant proofs of the correctness, of this reasoning. Notwithstanding the duties upon importations were doubled; from the naval superiority of our enemy, our government, were compelled to resort to direct, and internal taxes, to land taxes and excises; and even with all these advantages, it is notorious, that the credit of the government sunk exceedingly low, during the contest; and the public securities were bought and sold, under the very eyes of the administration, at a discount of nearly fifty per cent, from their nominal amount. Nay, at one time, it was impracticable to borrow any money upon the government credit. This event, (let it be remembered,) took place, after twenty years, of unexampled prosperity of the country. It is a sad, but solemn admonition.
- ↑ The Federalist, No. 35.
- ↑ The Federalist, No. 31.
- ↑ The Federalist, No. 31, 32.
- ↑ The Federalist, No. 32. See Gibbons v. Ogden, 9 Wheat. R. 1, 199 to 202. 1 Kent's Comm. Lect. 18, p. 363, 367, 368, 369.—This subject has been already considered in these Commentaries, in the rules of interpretation of the constitution; and a very important illustration, in the Federalist, No. 32, on this very point of taxation, was cited there. It seems, therefore, wholly unnecessary to repeat the reasoning. See also 4 Wheaton's R. 193, 316; 5 Wheaton's R. 22, 24, 28, 45, 49; 9 Wheaton's R. 199, 210, 238; 12 Wheaton's R. 448.
- ↑ The Federalist, No. 32, 36. See also 3 American Museum, 338, 341; 1 Elliot's Deb. 307, 308; Id.315,316; Id. 321 to 323; 2 Elliot's Deb. 198 to 204; M'Culloch v. State of Maryland, 4 Wheat. R. 316, 433 to 436; 9 Wheaton's R. 199, 200, 201; 12 Wheaton's R. 448.—Whether a state can tax an instrument, created by the national government, to accomplish national objects, will be hereafter considered.
- ↑ The Federalist, No. 33, 36; 1 Elliot's Deb. 307, 308; id. 321, 322.
- ↑ The Federalist, No. 34; 1 Tucker's Black. Comm. App. 234, 235, 236.
- ↑ The Federalist calculated, that the highest probable sum, required for the ordinary permanent expenses of any state government, would not exceed a million of dollars. But that of the Union, it was supposed, could not be susceptible of any exact measure. The Federalist, No. 34.
- ↑ The Federalist, No. 35, 36; 1 Elliot's Deb. 297 to 300; id. 309 to 313. 1 Tucker's Black. Comm. App. 237, 238; 2 Elliot's Deb. 98; id. 185, 186 to 188; id. 201, 202, 203; id. 232, 236; 3 Elliot's Debates, 77 to 91.
- ↑ The Federalist, No. 35, 36, 41, 45; 1 Tucker's Black. Comm. App. 244, 245.
- ↑ The Federalist, No. 36; 2 Elliot's Debates 52, 53, 70; id. 208; 3 Elliot's Debates, 262, 263; 2 American Museum, 543.
- ↑ The Federalist, No. 36; 3 American Museum, 338, 341; 1 Elliot's Deb. 81, 293, 294, 300 to 302; id. 337, 338; 2 Elliot's Deb. 98; id. 198 to 204.
- ↑ See Mr. Ellsworth's Speech, 3 American Museum, 338, 340.
- ↑ 1 Elliot's Debates, 90, 91.
- ↑ 1 Tuck. Black. Comm. App. 234 to 238; The Federalist, No. 12, 21, 36; 1 Elliot's Debates, 61, 62; 2 Elliot's Debates, 105; 3 Elliot's Debates, 77 to 91; 8 Journ. of Continent. Congress, 16th Dec. 1782, p. 203.
- ↑ 2 Elliot's Debates, 197 to 204; id. 208, 232, 235; 3 Elliot's Debates, 77, 91.
- ↑ Id.
- ↑ 1 Tuck. Black. Comm. App. 246.
- ↑ See 2 Stuart's Polit. Econ. 485; 1 Tuck. Black. Comm. App. 232; 1 Black. Comm. 308; 3 Dall. R. 171; Smith's Wealth of Nations, B. 3, ch. 3, B. 5, ch. 2, P. 1, P. 2, art. 4.
- ↑ The Federalist, No. 21, 36; 1 Tuck. Black. Comm. 233, 238, 239; Smith's Wealth of Nations, B. 5, ch. 2, Pt. 2, art. 1 and 2, and App.
- ↑ Loughborough v. Blake, 5 Wheat. R. 317, 318, 319.
- ↑ Journal of Convention, 220.
- ↑ Hylton v. United Slates, 3 Dall. 171, 174.
- ↑ Hylton v. United States, 3 Dall. R. 171.
- ↑ Smith's Wealth of Nations, B. 5. ch. 2, P. 2.
- ↑ Smith's Wealth of Nations, B. 5, ch. 2, P. 2, art. 1, 2, 3, 4.
- ↑ See The Federalist, No. 36.
- ↑ Smith's Wealth of Nations, B. 4. ch. 1, P. 3, B. 5, ch. 2, art. 4; Hale on Customs, Harg. Tracts, p. 115, &c.; 1 Black. Comm. 313, 314, 315, 316; Com. Dig. Prerogative, D. 43 to D. 49.
- ↑ The Federalist, No. 30; 3 Elliot's Debates, 289.
- ↑ Mr. Madison is of opinion, that the terms imposts and duties, in these clauses, are used as synonymous. There is much force in his suggestions. Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.
- ↑ 1 Black. Comm. 315; Hale on Customs, Harg. Law Tracts, p. 3, ch. 7, ch. 14, ch. 15.
- ↑ 1 Tuck. Black. Comm. App. 243.
- ↑ Mr. Justice Patterson in Hylton v. U. Stales, 3 Dall. R. 171, 177.
- ↑ Mr. Justice Chase, id. 174. See The Federalist, No. 36.
- ↑ 1 Black. Comm. 318; 1 Tuck. Black. Comm. App. 341; Smith's Wealth of Nations, B. 5, ch. 2, art. 4; 2 Elliot's Debates, 209; 3 Elliot's Debates, 289, 290.
- ↑ See 2 Smith's Wealth of Nations, B. 5, ch. 2, art. 4; The Federalist, No. 36; 2 Elliot's Debates, 209.
- ↑ 1 Tuck. Black. Comm. App. 232, 233; Hylton v. United States, 3 Dall. R. 171; The Federalist, No. 21; Loughborough v. Blake, 5 Wheat. R. 317 to 325.
- ↑ The Federalist, No. 31, 36.
- ↑ Act of 1794, ch. 45.
- ↑ 3 Dallas's Reports, 171.
- ↑ 3 Dallas's Reports, 171; Rawle on Const. ch. 9; 4 Elliot's Deb. 242; 1 Kent's Comm. Lect. 12, p. 239, 240; 1 Tuck. Black. Comm. App. 294.
- ↑ See 4 Elliot's Deb. 235, 236.
- ↑ See the exposition and protest, reported by a committee of the house of representatives, of South Carolina, on 10th of December, 1829, and adopted; the draft of which has been attributed to Mr. Vice President Calhoun. I have followed, as nearly as practicable, the very words of the report.
- ↑ This is extracted from the address of the Free Trade Convention, at Philadelphia, in Oct. 1831, p. 33, 34, attributed to the pen of Mr. Attorney-General Berrien. Mr. Senator Hayne, in his Speech, 9 January, 1832, says, that he does not know, where the constitutional objections to the tariff system are better summed up, than in this address, (p. 31, 32.)
- ↑ Col. Drayton's Oration, at Charleston, 4th of July, 1831, p. 13, 14.
- ↑ Hamilton's Report on Manufactures, in 1791.
- ↑ See Mr. Jefferson's Report on Commercial Restrictions, in 1793; 5 Marshall's Life of Washington, ch. 7, p. 462 to 487; 1 Wait's State Papers, 422, 434.
- ↑ See Smith's Wealth of Nations, B. 5, ch. 2, art. 4.
- ↑ See Hamilton's Report on Manufactures, in 1791; 1 Hamilton's Works, (edit. 1810,) 230; 2 Elliot's Debates, 344.
- ↑ See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.
- ↑ The present Commentaries were written before the appearance of Mr. John Q. Adams's Letter to Mr. Speaker Stevenson, in 1832. That Letter (as has been already intimated) contains a very able and elaborate vindication of the power to lay taxes, as extending to all purposes of the common defence and general welfare. It is the fullest response to the Letter of Mr. Madison to Mr. Speaker Stevenson, 27th Nov. 1830, which has ever yet been given.
- ↑ See Virginia Resolutions, 7th Jan. 1800; Mr. Madison's Letter to Mr. Speaker Stevenson, 27th Nov. 1630. See also 4 Elliot's Debates, 280, 281; 2 Elliot's Debate's, 344.
- ↑ The following summary, taken from President Madison's Veto Message on the Bank Bonus Bill for Internal Improvements, 3d March, 1817,[a 6] contains a very clear statement of the reasoning. "To refer the power in question," (that is, of constructing roads, canals, and other internal improvements,) "to the clause, to provide for the common defence and general welfare, would," says he, "be contrary to the established rules of interpretation, as rendering the special and careful enumeration of powers, which follow the clause, nugatory and improper. Such a view of the constitution would have the effect of giving to congress a general power of legislation, instead of the defined and limited one, hitherto understood to belong to them; the terms, 'the common defence and general welfare,' embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the constitution and laws of the several states, in all cases not specifically exempted, to be superseded by the laws of congress; it being expressly declared, that the constitution of the United States, and the laws made in pursuance thereof, shall be the supreme law of the land, and the judges of every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. Such a view of the constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the general and state governments; inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision. A restriction of the power 'to provide for the common defence and general welfare,' to cases, which are to be provided for by the expenditure of money, would still leave within the legislative power of congress all the great and most important measures of government, money being the ordinary and necessary means of carrying them into execution." It will be perceived at once, that this is the same reasoning insisted on by Mr. Madison in the Virginia Report and Resolutions, of 7th Jan. 1800; and in his Letter to Mr. Speaker Stevenson, of 27th Nov. 1830; and by the same gentleman in the Debate on the Cod-fishery Bill, in 1792. 4 Elliot's Debates, 236.
- ↑ Mr. Madison's Letter to Mr. Speaker Stevenson, 27th Nov. 1830.
- ↑ Mr. Hamilton.
- ↑ There is no doubt, that President Washington fully concurred in this opinion, as his repeated recommendations to congress of objects of this sort, especially of the encouragement of manufactures, of learning, of a university, of new inventions, of agriculture, of commerce and navigation, of a military academy, abundantly prove. See 5 Marshall's Life of Washington, ch. 4, p. 231, 232; 1 Wait's State Papers, 15; 2 Wait's State Papers, 109, 110, 111.
- ↑ It would be impracticable to enumerate all these various objects of appropriation in detail. Many of them will be found enumerated in President Monroe's Exposition, of 4 of May, 1822. p. 41 to 45. The annual appropriation acts speak a very strong language on this subject Every president of the United States, except President Madison, seems to have acted upon the same doctrine. President Jefferson can hardly be deemed an exception. In his early opinion, already quoted, (4 Jefferson's Corresp. 524,) he manifestly maintained it. In his message to congress, (2 Dec. 1806,[a 7]) he seems to have denied it. In signing the bill for the Cumberland Road, on 29th March, 1806,[a 8] he certainly gave it a partial sanction, as well as upon other occasions. See Mr. Monroe's Exposition, on 4th May, 1822, p. 41. But see 4 Jefferson's Corresp. 457, where Mr. Jefferson adopts an opposite reasoning. President Jackson has adopted it with manifest reluctance; but he considers it as firmly established by the practice of the government. See his veto message on the Maysville Road bill, 27 May, 1830, 4 Elliot's Deb. 333 to 335. The opinions maintained in congress, for and against the same doctrine, will be found in 4 Elliot's Deb. 236, 240, 265, 278, 280, 284, 291, 292, 332, 334. Report on Internal Improvements, by Mr. Hemphill, in the house of representatives, 10 Feb. 1831. See 1 Kent. Comm. Lect. 12, p. 250, 251; Sergeant's Const. Law, ch. 28, p. 311 to 314; Rawle on the Const. ch. 9, p. 104; 2 United States Law Jour. April, 1826, p. 251, 264 to 282.
- ↑ See act of 12 Feb. 1794, ch. 2; Act of 8 May, 1812, ch. 79; 4 Elliot's Debates, 240.
- ↑ See act of congress, of 16 Feb. 1792, ch. 6; 4 Elliot's Debates, 234 to 238; Act of 1813, ch. 34. See also Hamilton's Report on Manufactures, 1791, article, Bounties.—The Speech of the Hon. Mr. Grimke, in the senate of South Carolina, in Dec. 1828, and of the Hon. Mr. Huger, in the house of representatives of the same state, in Dec. 1830, contain very elaborate and able expositions of the whole subject, and will reward a diligent perusal.
- ↑ The Federalist, No. 21, 36, 54; 3 Dall. R. 171, 178; 1 Tucker's Black. Comm. App. 236, 287; 2 Elliot's Deb. 208 to 210; 3 Elliot's Debates, 290; 3 Amer. Museum, 424; 2 Elliot's Deb. 338.
- ↑ 8 Journal of Continental Congress, 184, 188, 198.
- ↑ The Federalist, No. 21.
- ↑ Id.
- ↑ 1 Black. Comm. 312, 313.
- ↑ See the remarks of Mr. Justice Patterson, in Hylton v. United States, 3 Dall. 171, 178, 179.
- ↑ 1 Tuck. Black. Comm. App. 234, 235, and note; id. 236, 237; 3 Dall. R. 178, 179; Federalist, No. 21, 36; 2 Elliot's Deb. 208 to 210.
- ↑ Act of 27 Feb. 1815, ch. 213.
- ↑ Loughborough v. Blake, 5 Wheaton's R. 317; Sergeant on Const. Law, ch. 28, p. 290; 1 Kent. Comm. Lect. 12, p. 241.
- ↑ Rawle on the Constitution, ch. 10, p. 115, 116.
- ↑ Journ. of Convention, 293, 294; Sergeant on Const. Law, ch. 28, p. 346; United States v. Brig William, 2 Hall's Law Journal, 255, 259, 260; Rawle on the Const. ch. 10. p. 116; 1 Jefferson's Corresp. 104 to 106, 112.
- ↑ Reeves on Shipping, 28, 36, 47, 49, 52 to 105; id. 491, 492, 493; Burke's Speech on American Taxation, in 1774; 1 Pitk. Hist. ch. 3, p. 91 to 106.
- ↑ Journ. of Convention, 222, 275.
- ↑ Id. 275, 276.
- ↑ Journ. of Convention, 301, 318; id. 377, 378.
- ↑ 1 Tuck. Black. Comm. App. 252, 253; id. 294.
- ↑ Brown v. Maryland, 12 Wheat. R. 449.
- ↑ Journ. of Convention, 227, 303.
- ↑ Id. 303, 304.
- ↑ Journ. of Convention, 359, 380, 381. See 2 American Museum, 534; id. 540.
- ↑ The Federalist, No. 44; 1 Tuck. Black. Comm. App. 252, 313. See also 2 Elliot's Debates, 354 to 356; Journ. of Convention, 294, 295.
- ↑ Gibbons v. Ogden, 9 Wheat. R. 1, 203 to 206, 210, 235, 236, 311; Brown v. Maryland, 12 Wheat. R. 419, 438, 439, 440.
- ↑ The Federalist, No. 7, 22.
- ↑ Gibbons v. Ogden, 9 Wheat. R. 1, 199, 200, 201; Brown v. Maryland, 12 Wheat. R. 446, 447.
- ↑ Act of 2d April, 1790, ch. 5; Act of 2d March, 1799, ch. 128, § 93.
- ↑ Brown v. Maryland, 12 Wheat. R. 419; The Federalist, No. 78.
- ↑ The opinion also proceeded to declare, that the act was a violation of the exclusive power of congress to regulate commerce. But the examination of this part of the question properly belongs to another head.
- ↑ M'Culloch v. State of Maryland, 4 Wheat. R. 316; 1 Kent's Comm. Lect. 19, p. 398; id. 401.
- ↑ The doctrine was again re-examined by the Supreme Court in a later case, and deliberately re-affirmed; Osborn v. Bank of the United States, 9 Wheat. R. 738, 859 to 868; 1 Kent's Comm. Lect. 12, p. 235 to 239.
- ↑ Weston v. The City Council of Charleston, 2 Peters's R. 449.
- ↑ 4 Wheaton, 316.
- ↑ Providence Bank v. Billings, 4 Peters's R. 514.
- ↑ M'Culloch v. Maryland, 4 Wheat. R. 316, 435.
- ↑ 4 Jefferson Corresp. 306.
- ↑ 2 Elliot's Debates, 170, 183, 195; 3 Elliot's Debates, 262; 2 Amer. Museum, 434; 3 Amer. Museum, 338.
- ↑ 2 Elliot's Debates, 327, 328.
- ↑ Journal of Convention, p. 220, 257, 284, 291.
- ↑ Journal of the Convention, p. 274.
- ↑ 4 Elliot's Debates, 280, 281.
- ↑ Wait's State Papers, 457, 458.
- ↑ Act of 1806, ch. 19.