366 CONSTITUTION OF THE U. STATES. [BOOK III.
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 debateable 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
CH. XIV.] POWERS OF CONGRESS. 367
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."
368 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 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
1 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.* 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.# 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"+
* 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.
CH. XIV.] POWERS OF CONGRESS--TAXES. 369
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.1 Under such circumstances, the constitution would practically create an unlimited national government. The enumerated pow-
1 President Monroe's Message, 4th May, 1822, p. 32, 33.
370 CONSTITUTION OF THE U. STATES. [BOOK III.
ers 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 au-
CH. XIV.] POWERS OF CONGRESS--TAXES. 371
thors of the constitution.1 It would be to charge them either with premeditated folly, or premeditated fraud.
§ 908. On the other hand, construing this clause in connexion 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.2
§ 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.3 But this circumstance will be found of very little weight, when the origin of the clause, and its progress to its
1 The Federalist, No. 41.
2 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 Turk. Black. App. 231.
3 Journ. of Convention, p. 356; Id. 494; 2 United States Law Journal, p. 264, April, 1826, New-York. -- In the Federalist, No. 41, the circumstances, 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.;
372 CONSTITUTION OF THE U. STATES. [BOOK III.
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.1 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 connexion, in which it stands.2 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;"3 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 fore-
1 Journal of Convention, p. 323, 324, 326.
2 President Monroe's Message, 4 May, 1822, p. 32, 33.
3 President Madison's Letter to Mr. Stevenson, 27 Nov. 1830.
CH. XIV.] POWERS OF CONGRESS--TAXES. 373
going 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 "the similarity in the use of these same phrases in these two great federal charters may well be considered, as rendering their meaning less liable to misconstruction; because it will scarcely be said, that in the former they were ever understood to be either a general grant or power, or to authorize the requisition or application of money by the old congress to the common defence and [or]1 general welfare, except in the cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present constitution, it can never be supposed, that when copied into this constitution, a different meaning, ought to be attached to them."2 Without stopping to consider, whether the constitution can in any just and critical sense be deemed a revision and remodelling of the confederation,3 if the argument here stated be of any value, it plainly estab-
1 "Or" is the word in the article.
2 Virginia Report and Resolutions of 7 January, 1800. See also the Federalist, No. 41.
3 See the Federalist. No. 40.
374 CONSTITUTION OF THE U. STATES [BOOK III.
lishes, that the words ought to be construed, as a qualification or limitation of the power to lay taxes. By the confederation, all expenses incurred for the common defence, or general welfare, are to be defrayed out of a common treasury, to be supplied by requisitions upon the states. Instead of requisitions, the constitution gives the right to the national government directly to lay taxes. So, that the only difference in this view between the two clauses is, as to the mode of obtaining the money, not as to the objects or purposes, to which it is to be applied. If then the constitution were to be construed according to the true bearing of this argument, it would read thus: congress shall have power to lay taxes for "all charges of war, and all other expenses, that shall be incurred for the common defence or general welfare." This plainly makes it a qualification of the taxing power; and not an independent provision, or a general index to the succeeding specifications of power. There is not, however, any solid ground, upon which it can be for a moment maintained, that the language of the constitution is to be enlarged, or restricted by the language of the confederation. That would be to make it speak, what its words do not import, and its objects do not justify. It would be to append it, as a codicil, to an instrument, which it was designed wholly to supercede and vacate.
§ 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
CH. XIV.] POWERS OF CONGRESS--TAXES. 375
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.1 Surely, the practice of that body in ques-
1 Mr. Madison himself, in his Letter to Mr. Stevenson, Nov. 27, 1830,
376 CONSTITUTION OF THE U. STATES. [BOOK III.
tions 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
admits the force of these remarks in their full extent. His language is, "If the practice of the revolutionary congress be 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 it 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." 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.
CH. XIV.] POWERS OF CONGRESS--TAXES. 377
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 be 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.1 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
1 2 Elliot's Deb. 195.
378 CONSTITUTION OF THE U. STATES. [BOOK III.
there is no avowed connexion, 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."1
§ 915. It has been farther said, in support of the construction now under consideration, that "whether the phrases in question are construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only, in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers, which follow these general phrases in the constitution. For it is evident, that there is not a single power whatsoever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude, which, in its exercise, does not involve, or admit an application of money. The government, therefore, which possesses power in either one, or the other of these extents, is a government without limitations, formed by a particular enumeration of powers; and consequently the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases." The conclusion de-
1 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.
CH. XIV.] POWERS OF CONGRESS--TAXES. 379
duced from these premises is, that under the confederation, and the constitution, "congress is authorized to provide money for the common defence and general welfare. In both is subjoined to this authority an enumeration of the cases, to which their powers shall extend. Money cannot be applied to the general welfare otherwise, than by an application of it to some particular measure, conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises, whether the particular measure be within the enumerated authorities rested in the congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by the clause in the constitution, which declares, that no money shall be drawn from the treasury but in consequence of appropriations by law. An appropriation of money to the general welfare would be deemed rather a mockery, than an observance of this constitutional injunction."1
§ 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.2 Strike them out, and the constitution is exactly what the argument contends for. It is, therefore, an argument, that the words ought not to
1 Virginia Revolutions, of 8th January, 1800. The same reasoning is in
President Madison's Veto message, of 3d of March, 1817. 4 Elliot's Deb. 280,
2 4 Elliot's Deb. 236.
380 CONSTITUTION OF THE U. STATES. [BOOK III.
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.1 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
1 In a Debate of 7th of February, 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 further 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. 0, 281.
CH. XIV.] POWERS OF CONGRESS--TAXES. 381
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.1 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
1 4 Elliot's Deb. 280, 281.
382 CONSTITUTION OF THE U. STATES. [BOOK III.
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
CH. XIV.] POWERS OF CONGRESS--TAXES. 383
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,)1 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,2 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 appro-
1 See the Federalist, No. 21, 22, 30; 1 Elliot's Deb. 318.
2 See the Federalist, No. 30 to 37.
384 CONSTITUTION OF THE U. STATES. [BOOK III.
priated 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 somer eference 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
CH. XIV.] POWERS OF CONGRESS--TAXES. 385
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
386 CONSTITUTION OF THE U. STATES. [BOOK III.
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 co-extensive 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
CH. XIV.] POWERS OF CONGRESS--TAXES. 387
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.1 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 connexion 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
___________________________________ 1 See also 4 Elliot's Debates, 280, 281.
388 CONSTITUTION OF THE U. STATES. [BOOK III.
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.1 "To lay taxes to provide for the general welfare of the United States, is," says he, "to lay taxes for the purpose, of providing for the general welfare. For the laying of taxes is the power, and the general welfare the purpose, for which the power is to be exercised. Congress are not to lay taxes ad libitum, for any purpose they please; but only to pay the debts, or provide for the welfare of the Union. In like manner they are not to do any thing they please, to provide for the general welfare; but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding, and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would also be a pow
1 Mr. Jefferson.
CH. XIV.] POWERS OF CONGRESS--TAXES. 389
er to do whatever evil they pleased. It is an established rule of construction, where a phrase will bear either of two meanings, to give that, which will allow some meaning to the other parts of the instrument, and not that, which will render all the others useless. Certainly, no such universal power was meant to be given them. It was intended to lace them up strictly within the enumerated powers, and those, without which, as means, those powers could not be carried into effect."1
§ 924. The same opinion has been maintained at different and distant times by many eminent statesmen.2 It was avowed, and apparently acquiesced in, in the state conventions, called to ratify the constitution;3 and it has been, on various occasions, adopted
1 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 are 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.
2 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 co-extensive, 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.
3 2 Elliot's Debates, 170, 183, 195, 328, 314; 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.
390 CONSTITUTION OF THE U. STATES. [BOOK III.
by congress,1 and may fairly be deemed, that which the deliberate sense of a majority of the nation has at all times supported. This, too, seems to be the construction maintained by the Supreme Court of the United States. In the case of Gibbons v. Ogden,2 Mr. Chief Justice Marshall, in delivering the opinion of the court, said, "Congress is authorized to lay and collect taxes, &c. to pay the debts, and provide for the common defence and general welfare of the United States. This does not interfere with the power of the states to tax for the support of their own governments; nor is the exercise of that power by the states an exercise of any portion of the power, that is granted to the United States. In imposing taxes for state purposes, they are not doing, what congress is empowered to do. Congress is not empowered to tax for those purposes, which are within the exclusive province of the states. When, then, each government is exercising the power of taxation, neither is exercising the power of the other." Under such circumstances, it is not, perhaps, too much to contend, that it is the truest, the safest, and the most authoritative construction of the constitution.3
§ 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.
1 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, 380 to 401, 411, 412, 426.
2 9 Wheat. R. 1, 199.
3 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.
CH. XIV.] POWERS OF CONGRESS--TAXES. 391
The first resolution adopted by the convention on this subject of the powers of the general government, was that the national legislature ought to be empowered to enjoy the legislative rights vested in congress by the confederation, and moreover to legislate in all cases, to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation;"1 At a subsequent period, the latter clause was altered, so as to read thus: "And, moreover, to legislate in all cases for the general interests of the Union, and also in those, to which the states are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."2 When the first draft of the constitution was prepared, in pursuance of the resolutions of the convention, the clause respecting taxation (being the first section of the seventh article) stood thus: "The legislature of the United States shall have the power to lay and collect taxes, duties, imposts, and excises," without any qualification or limitation whatsoever.
§ 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.3 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
1 Journ. of Convention, 68, 86, 87, 135, 136.
2 Journ. of Convention, 181, 182, 208.
3 Journ. of Convention, 261.
392 CONSTITUTION OF THE U. STATES. [BOOK III.
by the United States.1 The latter committee reported, that "the legislature of the United States shall have power to fulfil the engagements, which have been entered into by congress, and to discharge, as well the debts of the United States, as the debts incurred by the several states during the late war, for the common defence and general welfare." This proposition (it may be presumed) has no reference whatsoever to the clause in the draft of the constitution to lay taxes. The former committee (of five) at a later day reported, that there should be added to the first section of the seventh article (the clause to lay taxes) the following words, "for payment of the debts and the necessary expenses of the United States, provided, that no law for raising any branch of revenue, except what may be specially appropriated for the payment of interest on debts or loans, shall continue in force for more than -- years."2 It was then moved to amend the first clause of the report of the other committee, (on state debts,) so as to read as follows: "The legislature shall fulfil the engagements and discharge the debts of the United States," which (after an ineffectual attempt to amend by striking out the words, "discharge the debts," and inserting the words, "liquidate the claims,") passed unanimously in the affirmative.3 So, that the provision in the report, to assume the state debts, was struck out. On a subsequent day, it was moved to amend the first section of the seventh article, so as to read: "The legislature shall fulfil the engagements, and discharge the debts of the United States, and shall have power to lay and. collect taxes, duties, imposts,
1 Journ. of Convention, 261.
2 Id. 277.
3 Journ. of Convention, 279, 280.
CH. XIV.] POWERS OF CONGRESS--TAXES. 393
and excises," which passed in the affirmative;1 thus incorporating the amendment already stated with the clause respecting taxes in the draft of the constitution. On a subsequent day the following clause was proposed and agreed to: "All debts contracted, and engagements entered into by or under the authority of congress, shall be as valid against the United States, under this constitution, as under the confederation." On the same day, and after the adoption of this amendment, it was proposed to add to the first clause of the first section of the seventh article, (to lay taxes, &c.,) the following words: "for the payment of said debts, and for the defraying the expenses, that shall be incurred for the common defence, and general welfare," which passed in the negative by the vote of ten states against one.2 So, that the whole clause stood without any further amendment, giving, the power of taxation in the same unlimited terms, as it was reported in the original draft of the constitution. This unlimited extent of the power of taxation seems to have been unsatisfactory; and at a later day another committee reported, that the clause respecting taxation should read as follows: "The legislature 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;" and this passed in the affirmative without any division.3 And in the final draft the whole clause now stands thus: "The congress, &c. 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."4 From this historical survey,
1 Journ. of Convention, 284.
2 Id. 291.
3 Journ. of Convention, 323, 324, 326.
4 Id. 351, 356.
394 CONSTITUTION OF THE U. STATES. [BOOK III.
it is apparent, that it was first brought forward in connexion with the power to lay taxes; that it was originally adopted, as a qualification or limitation of the objects of that power; and that it was not discussed, as an independent power, or as a general phrase pointing to, or connected with, the subsequent enumerated powers. There was another amendment proposed, which would have created a general power to this effect; but it was never adopted, and seems silently to have been abandoned.1
§ 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;2 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 connexion 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 connexion. On the other hand, if this connexion be once admitted, it would be almost absurd to contend, that "to pay the debts" of the United States was a general phrase,
1 Journ. of Convention, 277.
2 Journ. of Convention, 291. See also the Constitution, art. 6.
CH. XIV.] POWERS OF CONGRESS--TAXES. 395
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 co-extensive 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."1
1 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 debt 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
396 CONSTITUTION OF THE U. STATES. [BOOK III.
§ 928. Having thus disposed of file question, what is the true interpretation of the clause, as it stands in the text of the constitution, and ascertained!. that the power
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.* 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
* Journal of Convention, p. 220, 257, 284, 291.
CH. XIV.] POWERS OF CONGRESS--TAXES. 397
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
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 be 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 slates; and as its general impotency become manifest. Examples of departure from the prescribed rule are too well known to require proof. The
398 CONSTITUTION OF THE U. STATES. [BOOK III.
of inquiry, what were the reasons, for which this power was given, and what were the objections, to which it was deemed liable.
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 s 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 become 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 immeasurabIe difference between the constitution, limited in its powers to the enumerated objects; and ex-
CH. XIV.] POWERS OF CONGRESS--TAXES. 399
§ 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
panded, 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, stilt 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, iris 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 part, 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 amendment,, nine were proposed by the convention of Massachusetts; live by that of South-Carolina; twelve by that of New-Hamp-
400 CONSTITUTION OF THE U. STATES. [BOOK III.
from the imbecilities, as well as the inequalities of the confederation.1 Without such a power, it would not be possible to provide for the support of the national
shire; 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 RhodeIsland.
"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, titan 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 treeing 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 tile progress of the discussions not a single proposition was made in either branch of the legislature, which referred to tile phrase, an 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 weIfare,' were not, at that time, deemed susceptible of any such construction, as has since been applied to them.
"It tony be thought, perhaps, due to tile subject, to advert to a letter of October 5th, 1787, to Samuel Adams, and another of October 16th, of
1 See The Federalist, No. 21, 30.
CH. XIV.] POWERS OF CONGRESS--TAXES. 401
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.1 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.2 The former is the fate of Turkey under its sovereigns: the latter was the fate of America under the confederation.3
§ 930. If, then, there is to be a real, effective national government, there must be a power of taxation co-extensive 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
he same year, to the governor of Virginia, from R.H. Lee, in both of which it is seen, that the terms had attracted his 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 tile 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 away 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.
1 1 Tucker's Black. Comm. App. 235 et seq.; Id. 244, 245.
2 The Federalist, No. 30.
4 the power should be restricted; its fiends, 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.1 In the history of mankind it has ordinarily
1 The Federalist, No. 31; Id. No. 30; Id. No. 21.
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.1 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."2 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
1 The Federalist, No. 30. 2 The Federalist, No. 21.
already suggested) illimitable in their nature, so it is impossible safely to limit that capacity.1
§ 932. In answer to this reasoning it was objected, that "it is not true, because the exigencies of the Union may not be susceptible of limitation, that its power of taxation ought to be unconfined. Revenue is as requisite to the purposes of the local administrations, as to those of the Union; and the former are at least of equal importance with the latter to the happiness of the people. it is, therefore, as necessary, that the state governments should be able to command the means of supplying their wants, as that the national government should possess the like faculty in respect to the Wants of the Union. But an indefinite power in the latter might, and probably would in time, deprive the former of he means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to become the supreme law of the land; and as it is to have power to pass all laws, that may be necessary, for carrying into execution the authorities, with which it is proposed to vest the national government, it might at any time abolish the taxes imposed for state objects upon the. pretence of an interference with its own. It might allege a necessity of doing this in order to give efficacy to the national revenue; and thus all the resources of taxation might by degrees become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments."2 The
1 The Federalist, No. 34; 1 Elliot's Debates, 77 to 89; Id. 303 to 308; Id. 309, 311 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. 234 235 236. 2 The Federalist, No. 31; 1 Ellot's, Debates, 77, 78 to 89; Id. 91, 105, 112; Id. 293, 294 to 296; Id. 301, 302, 303; Id. 329 to 333; 2 Elli-
difficulties arising from this collision between the state and national governments might be easily avoided by a separation and distinction, as to the subjects of taxation, or by other methods, which might be easily devised. Thus, for instance, the general government might be entrusted with the power of external taxation, such as laying duties and imposts on goods imported; and the states remain exclusively in possession of the power of internal taxation. Or power might be given to the general government to lay taxes exclusively upon certain specified subjects; or to lay taxes, if requisitions on the states were not complied with;1 or, if the specified subjects failed to produce an adequate revenue, resort might be had to requisitions, or even to direct taxes, to supply the deficiency.2
§ 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.3 Direct taxes were exceedingly unequal, and difficult to adjust;4 and could
ot's Debates. 52, 51, 208; 3 Elliot's Debates, 77 to 91; 1 Tuck. Black. Comm. App. 240; 2 Amer. Museum, 543, 544. 1 3 Amer. Museum, 423; 2 Elliot's Debates, 52, 53, 200, 206. 2 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.* 3 The Federalist, No. 30; 1 Elliot's Debates, 303, 304; Id..325, 326, 327; 2 Elliot's Debates, 195, 199, 204. 4 The Federalist, No. .21; 1 Elliot's Debates, 81, 82; 2 Elliot's Debates, 105; Id. 199, 204, 296; 1 Tucker's Black. Comm. App. 234, 235; 236; Dull. R. 171, 178. *Journal of the Convention, p. 974.
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, anti 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.1 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.2 How is it possible, that a government half supplied and half necessitous cart 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?3 Who would lend to a
1 The Federalist, No. 41. See 1 Elliot's Debates, 303 to 306. 2 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 3 The Federalist, No. 30.
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.1 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, rounded 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.2 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 possess-
1 The Federalist, No. 80. 2 The Federalist, No. 34.
ed a large naval force, greatly endanger, if it did not wholly cut off our supplies from this source.1 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?2 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
1 3 Elliot's Debates, 290. 2 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 advantage, 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.
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.1 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, rounded 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.2 In truth, no reasoning,
1 The Federalist, No. 35. 2 The Federalist, No. 31.
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 skilful, that any usurpation or oppression can take place.1
§ 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?
1 The Federalist, No. 31, 32. 2 The Federalist, No. 32. See Gibbons v. Ogden, 9 Wheat. R. 1, 199 to 902. 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. 446.
§ 938. The remarks of the Federalist, on this point, are very full and cogent. "There is, plain]y," says that work, "no expression, in the granting clause, which makes that power exclusive in the Union. There is no independent clause, or sentence, which prohibits the states from exercising it. So far is this from being the case, that a plain and conclusive argument to the contrary is deducible from the restraint laid upon the states, in relation to duties on imports and exports. This restriction implies an admission, that, if it were not inserted, the states would possess the power it excludes; and it implies a further admission, that as to all other taxes the authority of the states remains undiminished. In any other view, it would be both unnecessary and dangerous. It would be unnecessary, because, if the grant to the Union of the power of laying such duties implied the exclusion of the states, or even their subordination in this particular, there would be no need of such a restriction. It would be dangerous, because the introduction of it leads directly to the conclusion, which has been mentioned, and which, if the reasoning of the objectors be just, could not have been intended; I mean, that the states in all cases, to which the restriction did not apply, would have a concurrent power of taxation with the Union. The restriction in question amounts to what lawyers call a negative pregnant; that is, a negation of one thing, and an affirmance of another; a negation of the authority of the states to impose taxes on imports and exports; and an affirmance of their authority to impose them on other articles." -- "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."1
§ 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.2
1 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. 2 The Federalist, No. 33, 36; 1 Elliot's Deb. 307, 308; Id. 321, 322.
§ 940. The states, with this concurrent power, will be entirely safe, and have ample resources to meet all their wants, whatever they may be, although few public expenses, comparatively speaking, will fail 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 for ever 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.1 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.2
§ 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.3 The principal pressure of this argument has been already examined, in the survey already taken of the
1 The Federalist, No. 34; 4 Tucker's Black. Comm. App. 234, 235, 236. 2 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. 3 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.
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.1
§ 949. 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.2 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,
1 The Federalist, No. 35, 36, 41, 45; 1 Tucker's Black. Comm. App. 244, 245. 2 The Federalist, No 36; 2 Elliot's Debates, 52, ,53, 70; Id. 208; 3 Elliot's Debates, 262, 263; 2 American Museum, 543.
or the suggestions or fear, stimulated by discontent, or carried away by phantoms or the imagination.1
§ 943. But another extraordinary objection, which shows, how easily men may persuade themselves or 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;2 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 fail 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.3 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.4
1 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. 2 See Mr. Ellsworth's Speech, 3 American Museum, 338, 340. 3 1 Elliot's Debates, 90, 91. 4 1 Tuck. Black. Comm. App. 234 to 238; The Federalist, No. 12.
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.1 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 he utterly prostrated.2
§ 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 jeal-
21, 36; 1 Elliot's Debates, 61, 62; 2 Elliot's Debates, 105; 11 Elliot's Debates, 77 to 91; 8 Journ. of Continent. Congress, 16th Dec. 1782, p. 203 1 2 Elliot's Debates, 197 to 204; Id. 208, 232, 235; 3 Elliot's Debate, 77, 91. 2 Ibid.
ousy 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.1 "A candid review of this part of the federal constitution cannot fail to excite our just applause of the principles, upon which it is founded. All the arguments against it appear to have been drawn from the inexpediency of establishing such a form of government, rather than from any defect in this part of the system, admitting, that a general government was necessary to the happiness and prosperity of the states individually. This great primary question being once decided in the affirmative, it might be difficult to prove, that any part of the powers granted to congress in this clause ought to have been altogether withheld: yet being granted, rather as an ultimate provision in any possible case of emergency, than as a means of ordinary revenue, it is to be wished, that the exercise of powers, either oppressive in their operation, or inconsistent with the genius of the people, or irreconcilable to their prejudices, might be reserved for cogent occasions, which might justify the temporary recourse to a
1 1 Tuck. Black. Comm. App. 246.
lesser evil, as the means of avoiding one more permanent, and of greater magnitude."
§ 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 power, (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.1 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.2 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.3 But, it may be asked, if such was the intention, why were the sub-
1 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. 2 The Federalist, No. 21, 36, 1 Tuck. Black. Comm. 233, 238, 239; Smith's Wealth of Nations, B. 5, ch. 3, Pt. 2, art. 1 and 2, and App. 3 Loughborough v. Blake, 5 Whteat. R. 317, 318, 319.
sequent 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.1 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.2
§ 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
1 Journal of Convention, 220. 2 Hylton v. United State, 3 Dall. 171, 174.
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.1 It is evident, that "duties, imposts, and excises" are indirect taxes in the sense of the constitution. But the difficulty still remains, to ascertain1 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.2 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.3 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
1 Hylton v. United States, 3 DalI. R. 171. 2 1 Smith's Wealth of Nations, B. 5, ch. 2, P. 2. 3 Smith's Wealth of Nations, B. 5, ch. 2, P. 2, art. 1, 2, 3, 4.
sense. In its large sense, it is very nearly an equivalent to taxes, embracing all impositions or charges levied on persons or things.1 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.2 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.3 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."4 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,5 but a duty on the ton
1 See The Federalist, No. 86. 2 Smith's Wealth of Nations, B. 4, ch. 1, P. 3, B. 5, oh. 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. 3 The Federalist, No. 30; 3 Elliot's Debates, 289. 4 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. 5 1 Black. Comm. 315; Hale on Customs, Harg. Law Tracts, p. 3, ch. 7, ch. 14, ch. 15.
nage 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 connexion, 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."1 Another learned judge has said,2 "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 wilt 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." 3
§ 950. "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 in]and imposition, paid sometimes upon the consumption of the com-
1 1 Tuck. Black. Comm. App. 243. 2 Mr. Justice Patterson in Hylton v. U. States, 3 Dall. R. 171,177. 3 Mr. Justice Chase, Ibid. 174. See The Federalist, No. 36.
modity, or frequently upon the retail sale, which is the last stage before the consumption.1
§ 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,2 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.3 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, "I am inclined to think, that the direct taxes, contemplated by the constitution, are only two, viz. a capitation or poll tax simply, without regard to property, profession, or other circumstance, and a tax on land. I doubt, whether a tax by a general assessment of personal property within the United States is included within the term,
1 1 Black. Comm. 318; 1 Tuck. Black. Comm. App. 341; Smith's Wealth of Nations, B. 5, ch. P. art. 4; 2 Elliot's Debates, 209; 3 Elliot's Debates, 289, 290. 2 See 2 Smith's Wealth of Nations, B. 5, ch. 2, art. 4; The Federalist, No. 36; 2 Elliot's Debates, 209. 3 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 395.
direct tax." Mr. Justice Patterson, in the same case, said, "It is not necessary to determine, whether a tax on the produce of land be a direct or an indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered, as a part of the land itself. When the produce is converted into a manufacture, it assumes a new shape, &c.;Whether 'direct taxes,' in the sense of the constitution, comprehend any other tax, than a capitation tax, or a tax on land, is a questionable point, &c. I never entertained a doubt, that the principal, I will not say the only, objects, that the framers of the constitution contemplated, as falling within the rule of apportionment, were a capitation tax and a tax on land." And he proceeded to state, that the rule of apportionment, both as regards representatives, and as regards direct taxes, was adopted to guard the Southern states against undue impositions and oppressions in the taxing of slaves. Mr. Justice Iredell, in the same case, said, "Perhaps a direct tax, in the sense of the constitution, can mean nothing but a tax on something inseparably annexed to the soil; something capable of apportionment under all such circumstances. A land or poll tax may be considered of this description. The latter is to be considered so, particularly under the present constitution, on account of the slaves in the Southern states, who give a ratio in the representation in the proportion of three to five. Either of these is capable of an apportionment. In regard to other articles, there may possibly be considerable doubt." The reasoning of the Federalist seems to lead to the same result.1
§ 953. In the year 1794, congress passed an act,2 laying duties upon carriages for the conveyance of per
1 The Federalist, No. 31, 36. 2 Act of 1794, ch. 45.
sons, 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,1 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 eases 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
1 3 Dallas's Reports, 571.
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 $190; 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 $380. 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 oh 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.1
1 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.
§ 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 off 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 safe 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 ofmanufactures. 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.1
§ 955. Two practical questions of great importance have arisen upon the construction of this clause, either standing alone, or in connexion 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;
1 See 4 Elliot's Deb. 235, 236.
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 power, 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.1 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
1 See the exposition and protest, reported by a committee of the house of representatives, of South Carolina, on 19th 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.
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.1
§ 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 law, or the road laws, of the states. Congress is empowered to lay taxes for rev-
1 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.)
enue, it is true; but there is no power to encourage, protect, or meddle with manufactures.1
§ 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 power; 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
1 Col. Drayton's Oration, at Charleston, 4th of July, 1831, p. 11, 14.
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 may be 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; lot the support of agriculture commerce, and manufactures;1 for retaliation upon foreign monopolies and injurious restrictions;2 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
1 Hamilton's Report on Manufactures, in 1791. 2 See Mr. Jefferson's Report on Commercial Restrictions, in 1793; 5 Marshall's Life of Washington, ch. 7, p. 482 to 487; 1 Wait's State Papers, 422, 434.
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!1
§ 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, duties, 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 objectsis 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 substan-
1 See Smith's Wealth of Nations, B. 5, oh. 2, art. 4.
tive, 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 common defence and general weifare 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 opinions 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.1 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
1 See Hamilton's Report on Manufactures, in 1791; 1 Hamilton's Works, (edit. 1810,) 230; 2 Elliot's Debates, 344.
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 co-extensive 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.1
§ 970. So that, whichever construction of the power to lay taxes is adopted, the same conclusion is sustain-
1 See Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828.
ed, 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.1
§ 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 questions, 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 appropria-
1 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.
tions not within the scope of the enumerated powers, is maintained, has been already, in a great measure, stared in the preceding examination of the grammatical construction of the clause, giving the power to lay taxes.1 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 inconveniences 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.2
1 See Virginia Resolutions, 7th Jan. 1800; Mr. Madison's Letter to Mr. Speaker Stevenson, 27th Nov. 1830. See also 4 Elliot's Debates, 280, 281; 2 Elliot's Debates, 344. 2 The following summary, taken from President Madison's Veto Message on the Bank Bonus Bill for Internal Improvements, 3d March, 1817,* contains a very clear statement of the reasoning. "To refer the power in question," (that is, of constructing road, canals, and other internal improvements,)" to the clause, to provide for the common defence * 4 Elliot's Debates, 280, 281.
§ 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;1) 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
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 superceded 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 he 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.
1 Mr. Madison's Letter to .Mr Speaker Stevenson, 27th Nov. 1830.
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 treasury1 on manufactures, in 1791. "The national legislature," says he, "has express authority to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare, with no other qualifications, than that all duties, imposts, and excises, shall be uniform throughout the United States; that no capitation or other direct tax shall be laid, unless in proportion to numbers ascertained by a census, or enumeration taken on the principle prescribed in the constitution; and that no tax or duty shall be laid on articles exported from any state. These three qualifications excepted, the power to raise money is plenary and indefinite. And the objects, to which it may be appropriated, are no less comprehensive, than the payment of the public debts, and the providing for the common defence and general welfare. The terms 'general welfare' were doubtless intended to signify more, than was expressed or imported in those, which preceded; otherwise numerous exigencies, incident to the affairs of the nation, would have been left without a provision. The phrase is as comprehensive, as any, that could have been used; because it was not fit, that the constitutional authority. of the Union to appropriate its revenues should have been restricted within narrower limits, than the general wel-
1 Mr. Hamilton.
fare; and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification, nor of definition. It is, therefore, of necessity left to the discretion of the national legislature to pronounce upon the objects, which concern the general weifare, and for which, under that description, an appropriation of money is requisite and proper. And there seems no room for a doubt, that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the Sphere of the national councils, so far as regards an application of money. The only qualification of the generality of the phrase in question, which seems to be admissible, is this; that the object, to which an appropriation of money is to be made, must be general, and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot. No objection ought to arise to this construction from a supposition, that it would imply a power to do, whatever else should appear to congress conducive to the general weifare. A power to appropriate money with this latitude, which is granted. in express terms, would not carry a power to do any other thing, not authorized in the constitution either expressly, or by fair implication."1
§ 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
1 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, or learning, of a university, of new inventions, of agriculture, or 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.
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. "That the second part of this grant gives a right to appropriate the public money, and nothing more, is evident from the following. considerations: (1.) If the right of appropriation is not given by this clause, it is not given at all, there being no other grant in the constitution, which gives it directly, or which has any bearing on the subject, even by implication, except the two following: first, the prohibition, which is contained in the eleventh of the enumerated powers, not to appropriate money for the support of armies for a longer term than two years; and, secondly, the declaration in the sixth member or clause of the ninth section of the first article, that no money shall be drawn from the treasury, but in consequence of appropriations made by law. (2.) This part of the grant has node of the characteristics of a distinct and original power. It is manifestly incidental to the great objects of the first branch of the grant, which authorizes congress to lay and collect taxes, duties, imposts, and excises; a power of vast extent, not granted by the confederation, the grant of which formed one of the principal inducements to the adoption of this constitution. If both parts of the grant are taken together, as they must be, (for the one follows immediately after tim other in the same sentence,) it seems to be impossible to give to the latter any other construction, than that contended for. Con-
gress shall have power to lay and collect taxes, duties, imposts, and excises. For what purpose? To pay the debts, and provide for the common defence and general welfare of the United States; an arrangement and phraseology, which clearly show, that the latter part of the clause was intended to enumerate the purposes, to which the money thus raised might be appropriated. (3.) If this is not the real object and fair construction of the second part of this grant, it follows, either that it has no import or operation whatever, or one of much greater extent, than the first part. This presumption is evidently groundless in both instance; in the first, because no part of the constitution can be considered as useless; no sentence or clause in it without a meaning. In the second, because such a construction, as would make the second part of the clause an original grant, embracing the same objects with the first, but with much greater power than it, would be in the highest degree absurd. The order generally observed in grants, an order founded in common sense, since it promotes a clear understanding of their import, is to grant the power intended to be conveyed in the most full and explicit manner; and then to explain or qualify it, if explanation or qualification should be necessary. This order has, it is believed, been invariably observed in all the grants contained in the constitution. In the next place, because, if the clause in question is not construed merely as an authority to appropriate the public money, it must be obvious, that it conveys a power of indefinite and unlimited extent; that there would have been no use for the special powers to raise and support armies, and a navy; to regulate commerce; to call forth the militia; or even to lay and collect taxes, duties, imposts, and excises. An unqualified power to pay the debts
and provide for the common defence and general welfare, as the second part of this clause would be, if considered, as a distinct and separate grant, would extend to every object, in which the public could be interested. A power to provide for the common defence would give to congress the command of the whole force, and of all the resources of the Union; but a right to provide for the general welfare would go much further. It would, in effect, break down all the barriers between the states and the general government, and consolidate the whole under the latter.
§ 978. "The powers specifically granted to congress, are what are called the enumerated powers, and are numbered in the order, in which they stand; among which, that contained in the first clause holds the first place in point of importance. If the power created by the latter part of the clause is considered an original grant, unconnected with, and independent of, the first, as in that case it must be; then the first part is entirely done away, as are all the other grants in the constitution, being completely absorbed in the transcendent power granted in the latter part. But, if the clause be construed in the sense contended for, then every part has an important meaning and effect; not a line, or a word, in it is superfluous. A power to lay and collect taxes, duties, imposts, and excises, subjects to the call of congress every branch of the public revenue, internal and external; and the addition to pay the debts and provide for the common defence and general welfare, gives the right of applying the money raised, that is, of appropriating it to the purposes specified, according to a proper construction of the terms. Hence it follows, that it is the first part of the clause only, which gives a power, which affects in any manner the power remain
ing to the states; as the power to raise money from the people, whether it be by taxes, duties, imposts, or excises, though concurrent in the states, as to taxes and excises, must necessarily do. But the use or application of the money, after it is raised, is a power altogether of a different character. It imposes no burthen on the people, nor can it act on them in a sense to take power from the states; or in any sense, in which power can be controverted, or become a question between the two governments. The application of money raised under a lawful power, is a right or grant, which may be abused. It may be applied partially among the states, or to improper purposes in our foreign and domestic concerns; but still it is a power not felt in the sense of other powers; since the only complaint, which any state can make of such partiality and abuse is, that some other state or states have obtained greater benefit from the application, than, by a just rule of apportionment, they were entitled to. The right of appropriation is, therefore, from its nature, secondary and incidental to the right of raising money, and it was proper to place it in the same grant, and same clause with that right. By finding them then in that order, we see a new proof of the sense, in which the grant was made, corresponding with the view herein taken of it.
§ 979. The last part of this grant, which provides, that all duties, imposts, and excises. shall be uniform throughout the United States, furnishes another strong proof, that it was not intended, that the second part should constitute a distinct grant, in the sense above stated, or convey any other right, than that of appropriation. This provision operates exclusively on the power granted in the first part of the clause. It recites three branches of that power -- duties, imposts, and es
cises -- those only, on which it could operate; the rule, by which the fourth, that is, taxes, should be laid, being already provided for in another part of the constitution. The object of this provision is, to secure a just equality among the states in the exercise of that power by congress. By placing it after both the grants, that is, after that to raise, and that to appropriate the public money, and making it apply to the first only, it shows, that it was not intended, that the power granted in the second should be paramount to, and destroy that granted in the first. It shows, also, that no such formidable power, as that suggested, had been granted in the second, or any power, against the abuse of which it was thought necessary specially to provide. Surely, if it was deemed proper to guard a specific power, of limited extent and well known import, against injustice and abuse, it would have been much more so, to have guarded against the abuse of a power of such vast extent, and so indefinite, as would have been granted, by the second part of the clause, if considered as a distinct and original grant.
§ 980. "With this construction all the other enumerated grants, and indeed all the grants of power contained in the constitution, have their full operation and effect. They all stand well together, fulfilling the great purposes intended by them. Under it we behold great scheme consistent in all its parts, a government instituted for national purposes, vested with adequate powers for those purposes, commencing with the most important of all, that of revenue, and proceeding, in regular order, to the others, with which it was deemed proper to endow it; all too drawn with the utmost circumspection and care. How much more consistent is this construction with the great objects of the institu
tion, and with the high character of the enlightened and patriotic. citizens, who framed it, as well as of those, who ratified it, than one, which subverts every sound principle and rule of construction, and throws every thing into confusion.
§ 981. "I have dwelt thus long on this part of the subject, from an earnest desire to fix, in a clear and satisfactory manner, the import of the second part of this grant, well knowing, from the generality of the terms used, their tendency to lead into error. I indulge a strong hope, that the view, herein presented, will not be without effect, but will tend to satisfy the unprejudiced and impartial, that nothing more was granted by that part, than a power to appropriate the public money raised under the other part. To what extent that power may be carried, will be the next object of inquiry.
§ 982. "It is contended, on the one side, that, as the national government is a government of limited powers, it has no right to expend money, except in the performance of acts, authorized by the other specific grants, according to a strict construction of their powers; that this grant, in neither of its branches, gives to congress discretionary power of any kind; but is a mere instrument in its hands, to carry into effect the powers contained in the other grants. To this construction I was inclined in the more early stage of our government; but, on further reflection and observation, my mind has undergone a change, for reasons; which I will frankly unfold.
§ 983. "The grant consists, as heretofore observed, of a two-fold power; the first, to raise, and the second, to appropriate the public money; and the terms used in both instances are general and unqualified. Each
branch was obviously drawn with a view to the other, and the import of each tends to illustrate that of the other. The grant to raise money gives a power over every subject, from which revenue may be drawn; and is made in the same manner with the grants to declare war; to raise and support armies and a navy; to regulate commerce; to establish post-offices and post roads; and with all the other specific grants to the general government. In the discharge of the powers contained in any of these grants, there is no other check, than that, which is to be found in the great principles of our system -- the responsibility of the representative to his constituents. If war, for example, is necessary, and congress declare it for good cause, their constituents will support them in it. A like support will be given them for the faithful discharge of their duties under any and every other power, vested in the United States. It. affords to the friends of our free governments the most heart felt consolation to know, and from the best evidence,--our own experience, -- that, in great emergencies, the boldest measures, such as form the strongest appeals to the virtue and patriotism of the people, are sure to obtain their most decided approbation. But should the representative act corruptly, and betray his trust, or otherwise prove, that he was unworthy of the confidence of his constituents, he would be equally sure to lose it, and to be removed, and otherwise censured, according to his deserts. The power to raise money by taxes, duties, imposts, and excises, is alike unqualified; nor do I see any check on the exercise of it, other than that, which applies to the other powers above recited, -- the responsibility of the representative to his constituents. Congress know the extent of the public engagements, and the sums necessary to meet them;
they know, how much may be derived from each branch of revenue without pressing it too far; and, paying due regard to the interests of the people, they likewise know, which branch ought to be resorted to in the first instance. From the commencement of the government, two branches of this power (duties and imposts) have been in constant operation, the revenue from which has supported the government in its various branches, and met its other ordinary engagements. In great emergencies, the other two (taxes and excises) have likewise been. resorted to; and neither was the right nor the policy ever called in question.
§ 984. "If we look to the second branch of this power, that, which authorizes the appropriation of the money thus raised, we find, that it is not less general and unqualified, than the power to raise it. More comprehensive terms, than to 'pay the debts and provide for the common defence and general weifare,' could not have been used. So intimately connected with, and dependent on each other, are these two branches of power, that had either been limited, the limitation would have had a like effect on the other. Had the power to raise money been conditional, or restricted to special purposes, the appropriation must have corresponded with it; for none but the money raised could be appropriated, nor could it be appropriated to other purposes, than those, which were permitted. On the other hand, if the right of appropriation had been restricted to certain purposes, it would be useless and improper to raise more, than would be adequate to those purposes. It may fairly be inferred, that these restraints or checks have been carefully and intentionally avoided. The power in each branch is alike broad and unqualified, and each is drawn with peculiar fitness to the other;
the latter requiring terms of great extent and force to accommodate the former, which have been adopted; and both placed in the same clause and sentence. Can it be presumed, that all these circumstances were so nicely adjusted by mere accident? Is it not more just to conclude, that they were the result of due deliberation and design? Had it been intended, that congress should be restricted in the appropriation of the public money to such expenditures, as were authorized by a rigid construction of the other specific grants, how easy would it have been to have provided for it by a declaration to that effect. The omission of such declaration is, therefore, an additional proof, that it was not intended, that the grant should be so construed.
§ 985. "It was evidently impossible to have subjected this grant, in either branch, to such restriction, without exposing the government to very serious embarrassment. How carry it into effect? If the grant had been made in any degree dependent upon the states, the government would have experienced the fate of the confederation. Like it, it would have withered, and soon perished. Had the Supreme Court been authorized, or should any other tribunal, distinct from the government, be authorized to interpose its veto, and to say, that more money had been raised under either branch of this power, (that is, by taxes, duties, imposts, or excises,) than was necessary; that such a tax or duty was useless; that the appropriation to this or that purpose was unconstitutional; the movement might have been suspended, and the whole system disorganized. It was impossible to have created a power within the government, or any other power, distinct from congress and the executive, which should control the movement of the government in this respect,
and not destroy it. Had it been declared by a clause in the constitution, that the expenditures under this grant should be restricted to the construction, which night be given of the other grants, such restraint, though the most innocent, could not have failed to have had an injurious effect on the vital principles of the government; and often on its most important measures. Those, who might wish to defeat a measure proposed, might construe the power relied on in support of it, in a narrow and contracted manner, and in that way fix a precedent inconsistent with the true import of the grant. At other times, those, who favoured a measure, might give to the rower relied on a forced or strained construction; and, succeeding in the object, fix a precedent in the opposite extreme. Thus it is manifest, that, if the right of appropriation be confined to that limit, measures. may oftentimes be carried, or defeated by Considerations and motives, altogether independent of, and unconnected with, their merits, and the several powers of congress receive constructions equally inconsistent with their true, import. No such declaration, however, has been made; and from the fair import of the grant, and, indeed, its positive terms, the inference, that such was intended, seems to be precluded.
§ 986. "Many considerations of great weight operate in favour.of this construction while I do not perceive any serious objection to it. If it be established, it follows, that the words, 'to provide for the common defence and general welfare,' have a definite, safe, and useful meaning. The idea of their forming an original grant with unlimited power, superseding every other grant, is abandoned. They will be considered, simply; as conveying a right of appropriation; a right indispensable to that of raising a revenue, and necessary to ex-
penditures under every grant. By it, as already observed, no new power will be taken from the states, the money to be appropriated being raised under a power already granted to congress. By it, too, the motive for giving a forced or strained construction to any of the other specific grants will, in most instances, be diminished, and, in many, utterly destroyed. The importance of this consideration cannot be too highly estimated; since, in addition to the examples already given, it ought particularly to be recollected, that, to whatever extent any specific power may be carried, the right of jurisdiction goes with it, pursuing it through all its incidents. The very important agency, which this grant has in carrying into effect every other grant, is a strong argument in favour of the construction contended for. All the other grants are limited by the nature of the offices, which .they have severally to perform; each conveying a power to do a certain thing, and that only; whereas this is co-extensive with the great scheme of the government itself. It is the lever, which raises and puts the whole machinery in motion, and continues the movement. Should either of the other grants fail, in consequence of any condition or limitation attached to it, or misconstruction of its powers, much injury might follow; but still it would be the failure of one branch of power, of one item in the system only. All the others might move on. But should the right to raise and appropriate the public money be improperly restricted, the whole system might be sensibly affected, if not disorganized. Each of the other grants is limited by the nature of the grant itself. This, by the nature of the government only. Hence, it became necessary, that, like the power to declare war, this power should
be commensurate with the great scheme of the government, and with all its purposes.
§ 987. "If, then, the right to raise and appropriate the public money is not restricted to the expenditures under the other specific grants, according to a strict construction of their powers respectively, is there no limitation to it? Have congress a right to raise and appropriate the public money to any, and to every purpose, according to their will and pleasure? They certainly have not. The government of the United States is a limited government, instituted for great national purposes, and for those only. Other interests are committed to the states, whose duty it is to provide for them. Each government should 'look to the great and essential purposes, for which it was instituted, and confine itself to those purposes. A state government will rarely, if ever, apply money to national purposes, without making it a charge to the nation. The people of the State would not permit it. Nor will congress be apt to apply money in aid of the state administrations, for purposes strictly local, in which the nation at large has no interest, although the state should desire it. The people of the other states would condemn it. They would declare, that congress had no right to tax them for such a purpose, and dismiss, at the next election, such of their representatives, as had voted for the measure, especially if it should be severely felt. I do not think, that in offices of this kind there is much danger of the two governments mistaking their interests, or their duties. I rather suspect, that they would soon have a clear and distinct understanding of them, and move on in great harmony."
§ 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.1 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 1812.2 An illustration equally forcible, of a
1 It would be impracticable to enumerate 811 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. 521,) he manifestly maintained it. In his message to congress, (2 Dec. 1806,*) he seems to have denied it. In signing the bill for the Cumberland Road, on 29th March, 1806,+ 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, 18:10, 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. 18:11. See 1 Kent. Comm. Lect. 12, p. 250, 251 , Sergeant's Const. Law: ch. 98, p. 311 to 314; Rawle on the Const. ch. 9, p. 104; 2 United States Law Jour. April, 1826, p. 251, 264 to 282. 2 See act of 12 Feb. 1794, ch. 2; Act of 8 May, 1812, ch. 79; 4 Elliot's Debates, 240. * Wait's State Papers, 457, 458. + Act of 1806, ch. 19.
domestic character, is in the bounty given in the codfisheries, which was strenuously resisted on constitutional grounds in 1792; but which still maintains its place in the statute book of the United States.1
§ 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 connexion, 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
1 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 lion. 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.
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.1
§ 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, 1783,2 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
1 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. 2 8 Journal of Continental Congress, 184, 188, 198.
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.1 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.2 The estimate, however fairly or
1 The Federalist, No. 21. 2 The Federalist, No. 21.
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.1 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.2 In short, it may be
1 1 Black. Comm. 312, 313. 2 See the remarks of Mr. Justice Patterson, in Hylton v. United States, 3 Dall. 171, 178, 179.
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.1 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 1815,2 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.3 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
1 1 Tuck. Black. Comm. App. 234, 235, and note; Id. 236, 237; 2 Dall. R. 178, 179; Federalist, No. 21, 36; 2 Elliot's Deb. 208 to 2210. 2 Act of 27 Feb. 1815, ch. 213. 3 Loughborough v. Blake, 5 Wheaton's, R. 317; Sergeant on Const. Law, ch. 28, p. 290; 1 Kent. Comm. Lect. 12, p. 241.
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. "The eighth section of the first article gives to congress 'power to lay and collect taxes, duties, imposts, and excises,' for the purposes thereinafter mentioned. This grant is general, without limitation as to place. It, consequently, extends to all places, over which the government extends. If this could be doubted, the doubt is removed by the subsequent words, which modify the grant. These words are, 'but all duties, imposts, and excises shall be uniform throughout the United States.' It will not be contended, that the modification of the power extends to places, to which the power itself does not extend. The power, then, to lay and collect duties, imposts, and excises, may be exercised, and must be exercised throughout the United States. Does this term designate the whole, or any particular portion of the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of states and territories. The District of Columbia, or the territory west of the Missouri, is not less within the United States, than Maryland or Pennsylvania; and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one, than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously co-extensive with the power to lay and collect duties, imposts, and excises, and since the latter
extends throughout the United States, it follows, that the power to impose direct taxes also extends throughout the United States.
§ 997. "The extent of the grant being ascertained, how far is It abridged by any part of the constitution? The twentieth section of the first article declares, that 'representatives and direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers.'
§ 998. "The object of this regulation is, we think, to furnish a standard, by which taxes are to be apportioned, not to exempt from their operation any part of our country. Had the intention been to exempt from taxation those, who are not represented in congress, that intention would have been expressed in direct terms. The power having been expressly granted, the exception would have been expressly made. But a limitation can scarcely be said to be insinuated. The words used do not mean, that direct taxes shall be imposed on states only, which are represented, or shall be apportioned to representatives; but that direct taxation, in its application to states, shall be apportioned to numbers. Representation is not made the foundation of taxation. If, under the enumeration of a representative for every 30,000 souls, one state had been found to contain 59,000, and another 60,000, the first would have been entitled to only one representative, and the last to two. Their taxes, however, would not have been as one to two, but as fifty-nine to sixty. This clause was obviously not intended to create any exemption from taxation, or to make taxation dependent on representation, but to furnish a standard for the apportionment of each on the states.
§ 999. "The fourth paragraph of the ninth section of the same article will next be considered. It is in these words: 'No capitation, or other direct tax, shall be laid, unless in proportion to the census, or enumeration herein before directed to be taken.'
§ 1000. "The census referred to is in that clause of the constitution, which has just been considered, which makes numbers the standard, by which both representatives and direct taxes shall be apportioned among the states. The actual enumeration is to be made ' within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct.'
§ 1001. "As the direct and declared object of this census is, to furnish a standard, by which 'representatives, and direct taxes, may be apportioned among the several states, which may be included within this Union,' it will be admitted, that the omission to extend it to the district, or the territories, would not render it defective. The census referred to is admitted to be a census exhibiting the numbers of the respective States. It cannot, however, be admitted, that the argument, which limits the application of the power of direct taxation to the population contained in this census, is a just one. The language of the clause does not imply this restriction. It is not, that 'no capitation, or other direct tax shall be laid, unless on those comprehended within the census herein before directed to be taken,' but 'unless in proportion to' that census. Now this proportion may be applied to the district or the territories. If an enumeration be taken of the population in the district and the territories, on the same principles, on which the enumeration of the respective states is made, then
congress the power of exercising 'exclusive legislation in all cases whatsoever within this district.'
§ 1007. "On the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion; but it is contended, that they must be limited by that great principle, which was asserted in our revolution, that representation is inseparable from taxation. The difference between requiring a continent, with an immense population, to submit to be taxed by a government, having no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our constitution, to tax a part of the society, which is either in a state of infancy advancing to manhood, looking forward to complete equality, as soon as that state of manhood shall be attained, as is the case with the territories; or which has voluntarily relinquished the right of representation, and has adopted the whole body of congress for its legitimate government, as is the case with the district; is too obvious not to present itself to the minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the district, it may be doubted, whether in fact, its interests would be rendered thereby the more secure; and certainly the constitution does not consider its want of a representative in congress as exempting it from equal taxation.
§ 1008. "If it were true, that, according to the spirit of our constitution, the power of taxation must be limited by the right of representation, whence is derived the right to lay and collect duties, imposts, and excises, within this district? If the principles of liberty, and of
our constitution, forbid the raising of revenue from those, who are not represented, do not these principles forbid the raising it by duties, imposts, and excises, as well as by a direct tax? If the principles of our revolution give a rule applicable to this case, we cannot have forgotten, that neither the stamp act, nor the duty on tea, were direct taxes. Yet it is admitted, that the constitution not only allows, but enjoins the government to extend the ordinary revenue system to this district.
§ 1009. "If it be said, that the principle of uniformity, established in the constitution, secures the district from oppression in the imposition of indirect taxes, it is not less true, that the principle of apportionment, also established in the constitution, secures the district from any oppressive exercise of the power to lay and collect direct taxes."
§ 1010. The next clause in the constitution is: "No tax or duty shall be la id on articles exported from any state. No preference shall be given by any regulation of commerce, or revenue, to the ports of one state over those of another; nor shall vessels bound to, or from one state be obliged to enter, clear, or pay duties in another."
§ 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.1 The inequality of such a tax would be extreme. In some of the states, the whole of their
1 Rawle on the Constitution, ch. 10, p. 115, 116.
means result from agricultural exports. In others, a great portion is derived from ether 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 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.1 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.2
§ 1012. The first part of the clause was reported in the first draft of the constitution. But it did not pass
1 Journ. of Convention, 293, 294; Sergeant on Const. Law, oh. 28, p. 346; United States v. Brig WiIliam, 2 Hall's Law Journal, 255, 259, 260; Rawle on the Const. ch. 10. p. 116; 1 Jefferson's Corresp. 104 to 106, 112.. 2 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.
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.1 It then passed by a vote of seven states against four.2 Subsequently, the remaining parts of the clause were proposed by a report of a committee, and they appear to have been adopted without objection.3 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.4 The prohibition extends not only to exports, but to the exporter. Congress can no more rightfully tax the one, than the other.5
§ 1013. The next clause contains a prohibition on the states for the like objects and purposes. "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; and the net produce of all duties and imposts laid by any state on imports and exports shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of congress. No state shall, without the consent of congress, lay any tonnage duty." In the first draft of the constitution, the clause stood, "no state, without "the consent," &c. "shall lay imposts or duties on im-
1 Journ. of Convention, 272, 275. 2 Id. 275, 276. 3 Journ. of Convention, 301, 318; Id. 377, 378. 4 1 Tuck. Black. Comm. App. 252, 253; Id. 294. 5 Brown v. Maryland, 12 Wheat R. 449.
ports." The clause was then amended by adding, "or exports," not however without opposition, six states voting in the affirmative, and five in the negative;"1 and again by adding, "nor with such consent, but for the use of the treasury of the United States," by a vote of nine states against two.2 In the revised draft, the clause was reported as thus amended. The clause was then altered to its present shape by a vote of ten states against one; and the clause, which respects the duty on tonnage, was then added by a vote of six states against four, one being divided.3 So, that it seems, that a struggle for state powers was constantly maintained with zeal and pertinacity throughout the whole discussion. If there is wisdom and sound policy in restraining the United States from exercising the power of taxation unequally in the states, there is, at least, equal wisdom and policy in restraining the states themselves from the exercise of the same power injuriously to the interests of each other. A petty warfare of regulation is tim prevented, which would rouse resentments, and create dissensions, to the ruin of the harmony and amity of the states. The power to enforce their respective. laws is still retained, subject to the revision and control of congress; so, that sufficient provision is made for the convenient arrangement of their domestic and internal trade, whenever it is not injurious to the general interests.4
§ 1014. Inspection laws are not, strictly speaking, regulations of commerce, though they may have a
1 Journ. of Convention, 227, 303. 2 Id. 303, 304. 3 Journ. of Convention, 359, 380, 381. See 2 American Museum, 534; Id. 540. 4 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.
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 many be controlled by congress, when they interfere with their acknowledged powers.1 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.2 The power to lay duties and imposts on
1 Gibbons v. Ogden, 9 Wheat. R. 1, 203 to 206, 210, 235, 236, 311; Brown v. Maryland, 12 Wheat. R. 419, 438, 439, 440. 2 The Federalist, No. 7, 22.
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.1
§ 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.2 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? 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. "The cause depends entirely on the question, whether the legislature of a state can constitutionally require the importer of foreign articles to take out a
1 Gibbons v. Ogden, 9 Wheat. R. 1, 199, 200, 201; Brown v. Maryland, 17 Wheat. R. 446, 447. 2 Act of 2d April, 1790, ch. 5; Act of 2d. March, 1799, ch. 128, § 93. 3 Brown v. Maryland, 12 Wheat. R. 419; The Federalist, No. 278.
license from the state, before he shall be permitted to sell a bale or package so imported. It has been truly said, that the presumption is in favour of every legislative act, and that the whole burthen of proof lies on those, who deny its constitutionality. The plaintiffs in error take the burthen upon themselves, and insist, that the act under consideration is repugnant to two provisions in the constitution of the United States. (1.) To that, which declares, 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.' (2.) To that, which declares, that congress shall have power 'to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.'
§ 1017. "1. The first inquiry is, into the extent of the prohibition upon states, 'to lay any imposts or duties on imports or exports.' The counsel for the state of Maryland would confine this prohibition to laws imposing duties on the act of importation or exportation. The counsel for the plaintiffs in error give them a much wider scope. In performing the delicate and important duty of construing clauses in the constitution of our country, which involve conflicting powers of the government of the Union, and of the respective states, it is proper to take a view of the literal meaning of the words to be expounded, of their connexion with other words, and of the general objects to be accomplished by the prohibitory clause, or by the grant of power. What, then, is the 'meaning of the words, 'imposts or duties oft imports or exports?' An impost or duty on imports, is a custom or a tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of ownership
over them, because evasions of the law can be prevented more certainly by executing it, while the articles are in its custody. It would not, however, be less an impost or duty on the articles, if it were to be levied on them alter they were landed. The policy and consequent practice of levying or securing the duty before, or on entering the port, does not limit the power to that state of things, nor, consequently, the prohibition, unless the true meaning of the clause so confines it. What, then, are 'imports?' The lexicons inform us, they are 'things imported.' If we appeal to usage for the meaning of the word, we shall receive the same answer. They are the articles themselves, which are brought into the country. 'A duty on imports,' then, is not merely a duty on the act of importation, but is a duty on the thing imported. It is not, taken in its literal sense, confined to a duty levied, while the article Is entering the country, but extends to a duty levied after it has entered the country. The succeeding words of the sentence, which limit the prohibition, show the extent, in which it was understood. The limitation is, 'except what may be absolutely necessary for executing its inspection laws.' Now, the inspection laws, so far as they act upon articles for exportation, are generally executed on land, before the article is put on board the vessel; so far, as they act upon importations, they are generally executed upon articles, which are landed. The tax or duty of inspection, then, is a tax, which is frequently, if not always, paid for service performed on land, while the article is in the bosom of the country. Yet this tax is an exception to the prohibition on the states to lay duties on imports or exports. The exception was made, because the tax would otherwise have been within the prohibition. If
it be a rule of interpretation, to which all assent, that the exception of a particular thing from general words proves, that in the opinion of the lawgiver, the thing excepted would be within the general clause, had the exception not been made, we know no reason, why this general rule should not be as applicable to the constitution, as to other instruments. If it be applicable then this exception in favour of duties for the support of inspection laws, goes far in proving, that the framers of the constitution classed taxes of a similar character with those imposed for the purposes of inspection, with duties on imports and exports, and Supposed them to be prohibited.
§ 1018. "If we quit this narrow view of the subject, and, passing from the literal interpretation of the words, look to the objects of the prohibition, we find no reason for withdrawing the act under consideration from its operation. From the vast inequality between the different states of the confederacy, as to commercial advantages, few subjects were viewed with deeper interest, or excited more irritation, than the manner, in which the several states exercised, or seemed disposed to exercise, the power of laying duties on imports. From motives, which were deemed sufficient by the statesmen of that day, the general power of taxation, indispensably necessary, as it was, and jealous, as the states were, of any encroachment on it, was so far abridged, as to forbid them to touch imports or exports, with the single exception, which has been noticed. Why are they restrained from imposing these duties? Plainly, because, in the general opinion, the interest of all would be best promoted by placing that whole subject under the control of congress. Whether the prohibition to 'lay imposts, or duties on imports or ex-
ports,' proceeded from an apprehension, that the power might be so exercised, as to disturb that equality among the states, which was generally advantageous, or that harmony between them, which it was desirable to preserve; or to maintain unimpaired our commercial connexions with foreign nations; or to confer this source of revenue on the government of the Union; or, whatever other motive might have induced the prohibition; it is plain, that the object would be as completely defeated by a power to tax the article in the hands of the importer, the instant it was landed, as by a power to tax it, while entering the port. There is no difference, in effect, between a power to prohibit the sale of an article, and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other. No goods would be imported, if none could be sold. No object of any description can be accomplished by laying a duty on importation, which may not be accomplished with equal certainty by laying a duty on the thing imported in the hands of the importer. It is obvious, that the same power, which imposes a light duty, can impose a very heavy one, one which amounts to a prohibition. Questions of power do not depend on the degree, to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those, in whose hands it is placed. If the tax may be levied in this form by a state, it may be levied to an extent, which will defeat the revenue by impost, so far, as it is drawn from importations into the particular state.
§ 1019. We are told, that such a wild and irrational abuse of power is not to be apprehended, and is not to be taken into view, when discussing its existence. All power may be abused; and if the fear of its abuse is
to constitute an argument against its existence, it might be urged against the existence of that, which is universally acknowledged, and which is indispensable to the general safety. The states will never be so mad, as to destroy their own commerce, or even to lessen it. We do not dissent from these general propositions. We do not suppose any state would act so unwisely. But we do not place the question on that ground. These arguments apply with precisely the same force against the whole prohibition. It might, with the same reason be said, that no state would be so blind to its own interests, as to lay duties on importation, which would either prohibit, or diminish its trade. Yet the framers of our constitution have thought this a power, which no state ought to exercise. Conceding, to the full extent, which is required, that every state would, in its legislation on this subject, provide judiciously for its own interests, it cannot be conceded, that each would respect the interests of others. A duty on imports is a tax on the article, which is paid by the consumer. The great importing states would thus levy a tax on the non-importing states, which would not be less a tax, because their interest would afford ample security against its ever being so heavy, as to expel commerce from their ports. This would necessarily produce countervailing measures on the part of those states, whose situation was less favourable to importation. For this, among other reasons, the whole power of laying duties on imports was, with a single and slight exception, taken from the states. When we are inquiring, whether a particular act is within this prohibition, the question is not, whether the state may so legislate, as to hurt itself, but whether the act is within the words and mischief of the prohibitory clause. It has already
been shown, that a tax on the article in the hands of the importer is within its words; and we think it too clear for controversy, that the same tax is within its mischief. We think it unquestionable, that such a tax has precisely the same tendency to enhance the price of the article, as if imposed upon it, while entering the port.
§ 1020. "The counsel for the state of Maryland insist with great reason, that if the words of the prohibition be taken in their utmost latitude, they will abridge the power of taxation, which all admit to be essential to the states, to an extent, which has never yet been suspected; and will deprive them of resources, which are necessary to supply revenue, and which they have heretofore been admitted to possess. These words must, therefore, be construed with some limitation; and, if this be admitted, they insist, that entering the country is the point of time, when the prohibition ceases, and the power of the state to tax commences. It may be conceded, that the words of the prohibition ought not to be pressed to their utmost extent; that in our complex system the object of the powers conferred on the government of the Union, and the nature of the often conflicting powers, which remain in the states, must always be taken into view, and may aid in expounding the words. of any particular clause. But while we admit, that sound principles of construction ought to restrain all courts from carrying the words of the prohibition beyond the object, which the constitution is intended to secure; that there must be a point of time, when the prohibition ceases, and the power of the state to tax commences; we cannot admit, that this point of time is the instant, that the articles enter the country. It is, we think, obvious, that this construction would defeat the prohibition.
§ 1021. "The constitutional prohibition on the states to lay a duty on imports, a prohibition, which a vast majority of them must feel an interest in preserving, may certainly come in conflict with their acknowledged power to tax persons and property within their territory. The power, and the restriction on it, though quite distinguishable, when they do not approach each other, may yet, like the intervening colors between white and black, approach so nearly, as to perplex the understanding, as colors perplex the vision in marking the distinction between them. Yet the distinction exists, and must be marked, as the cases arise. Till they do arise, it might be premature to state any rule, as being universal in its application. It is sufficient for the present, to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character, as an import, and has become subject to the taxing power of the state. But, while remaining the property of the importer, in his warehouse, in the, original form or package, in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution.
§ 1022. "The counsel for the plaintiffs in error contend, that the importer purchases, by payment of the duty to the United States, a right to dispose of his merchandise, as well as to bring it into the country; and certainly the argument is supported by strong reason, as well as by the practice of nations, including our own. The object of importation is sale; it constitutes the motive for paying the duties; and if the United States possess the power of conferring the right to sell, as the consideration, for which the duty is paid,
every principle of fair dealing requites, that they should be understood to confer it. The practice of the most commercial nations conforms to this idea. Duties, according to that practice, are charged on those articles only, which are intended for sale or consumption in the country. Thus, sea stores, goods imported and re-exported in the same vessel, goods landed and carried over land for the purpose of being re-exported from some other port, goods forced in by stress of weather, and landed, but not for sale, are exempted from the payment of duties. The whole course of legislation on the subject shows, that, in the opinion of the legislature, the right to sell is connected with the payment of duties.
§ 1093. "The counsel for the defendant in error have endeavoured to illustrate their proposition, that the constitutional prohibition ceases the instant the goods enter the country, by an array of the consequences, which they suppose must follow the denial of it. If the importer acquires the right to sellby the payment of duties, he may, they say, exert that right, when, where, and as he pleases; and the state cannot regulate it. He may sell by retail, at auction, or as an itinerant pedlar. He may introduce articles, as gun-powder, which endanger a city, into the midst of its population; he may introduce articles, which endanger the public health, and the power of self-preservation is denied. An importer may bring in goods, as plate, for his own use, and thus retain much valuable property exempt from taxation.
§ 1024. "These objections to the principle, if well founded, would certainly be entitled to serious consideration. But, we think, they will be found, on examination, not to belong necessarily to the principle, and, conse-
quently, not to prove, that it may not be resorted to with safety, as a criterion, by which to measure the extent of the prohibition. This indictment is against the importer for selling a package of dry goods in the form, in which it was imported, without a license. This state of things is changed, if he sells them, or otherwise mixes them with the general property of the state, by breaking up his packages, and travelling with them, as an itinerant pedlar. In the first case, the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated, until it shall have contributed to the revenue of the state. It denies to the importer the right of using the privilege, which he has purchased from the United States, until he shall have also purchased it from the state. In the last case, the tax finds the article already incorporated with the mass of property by the act of the importer. He has used the privilege he had purchased, and has himself mixed them up with the common mass, and the law may treat them, as it finds them. The same observations apply to plate, or other furniture used by the importer. So, if he sells by auction. Auctioneers are persons licensed by the state, and if the importer chooses to employ them, he can as little object to paying for this service, as for any other, for which he may apply to an officer of the state. The right of sale may very well be annexed to importation, without annexing to it, also, the privilege of using the officers licensed by the state to make sales in a peculiar way. The power to direct the removal of gun-powder is a branch of the police power, which unquestionably remains, and ought to remain with the states. If the possessor stores it himself out of town, the removal cannot be a duty on
imports, because it contributes nothing to the revenue. If he prefers placing it in a public magazine, it is because he stores it there, in his own opinion, more advantageously than elsewhere. We are not sure, that this may not he classed among inspection laws. The removal or destruction of infectious or unsound articles is, undoubtedly, an exercise of that power, and forms an express exception to the prohibition we are considering. Indeed, the laws of the United States expressly sanction the health laws of a state.
§ 1095. "The principle, then, for which the plaintiffs in error contend, that the importer acquires a right, not only to bring the articles into the country, but to mix them with the common mass of property, does not interfere with the necessary power of taxation, which is acknowledged to reside in the states, to that dangerous extent, which the counsel for the defendants in error seem to apprehend. It carries the prohibition in the constitution no farther, than to prevent the states from doing that, which it was the great object of the constitution to prevent.
§ 1026. "But if it should be proved, that a duty on the article itself would be repugnant to the constitution, it is still argued, that this is not a tax upon the article, but on the person. The state, it is said, may tax occupations, and this is nothing more. It is impossible to conceal from ourselves, that this is varying the form, without varying the substance. It is treating a prohibition, which is general, as if it were confined to a particular mode of doing the forbidden thing. All must perceive, that a tax on the sale of an article, imported only for sale, is a tax on the article itself. It is true, the state may tax occupations generally; but this tax must be paid by those, who employ the individual, or is a tax. on his business.
The lawyer, the physician, or the mechanic, must either charge more on the article, in which he deals, or the thing itself is taxed through his person. This the state has a right to do, because no constitutional prohibition extends to it. So, a tax on the occupation of an importer is, in like manner, a tax on importation. It must add to the price of the article, and be paid by the consumer, or by the importer himself, in like manner, as a direct duty on the article itself would be made. This the state has not a right to do, because it is prohibited by the constitution.
§ 1027. "In support of the argument, that the prohibition ceases the instant the goods are brought into the country, a comparison has been drawn between the opposite words, export and import. As, to export, it is said, means only to carry goods out of the country; so, to import, means only to bring them into it. But, suppose we extend this comparison to the two prohibitions. The states are forbidden to lay a duty on exports, and the United States are forbidden to lay a tax or duty on articles exported from any state. There is some diversity in language, but none is perceivable in the act, which is prohibited. The United States have the same right to tax occupations, which is possessed by the states. Now, suppose the United States should require every exporter to take out a license, for which he should pay such tax, as congress might think proper to impose; would the government be permitted to shield itself from the just censure, to which this attempt to evade the prohibitions of the constitution would expose it, by saying, that this was a tax on the person, not on the article, and that the legislature had a right to tax occupations? Or, suppose revenue cutters were to be stationed off the coast for the purpose of levying a duty
on all merchandise found in vessels, which were leaving the United States for foreign countries, would it be received, as an excuse for this outrage, were the government to say, that exportation meant no more than carrying goods out of the country, and as the prohibition to lay a tax on imports, or things imported, ceased the instant they were brought into tim country, so the prohibition to tax articles exported ceased, when they were carried out or the country?
§ 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.' "1
§ 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.2 The reasoning of the Supreme Court, on this subject, was as follows.
1 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. 2 M'Culloch v. State of Maryland, 4 Wheat. R. 316; 1 Kent's Comm. Lect. 19, p. 398; Id. 401.
§ 1031. "Whether the state of Maryland may, without violating the constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the states; that it is not abridged by ,the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths, which have never been denied. But, such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of oven this power is admitted. The states are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded; if it may restrain a state from the exercise of its taxing power on imports and exports; the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely repeals that other, as if express terms of repeal were used.
§ 1032. "On this ground the counsel for the bank place its claim to be exempted from the power of a state to tax its operations. There is no express provision for the case; but the claim has been sustained on a principle, which so entirely pervades the constitution; is so intermixed with the materials, which compose it; so interwoven with its web, so blended with its texture, as to be incapable of being separated from it without rending it into shreds. This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective states, and cannot be controlled by them.
From this, which may be almost termed an axiom, other propositions are deduced, as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. that a power to create. implies a power to preserve. 2nd. That a power to destroy, if wielded by a different hand, is hostile to, and, incompatible with the powers to create and to preserve. 3d. That where this repugnancy exists, that authority, which is supreme, must control, not yield to that over, which it is supreme. These propositions, as abstract truths, would, perhaps, never be controverted. Their application to this case, however, has been denied; and, both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument, seldom, if ever, surpassed, have been displayed.
§ 1033. "The power of congress to create, and of course to continue, the bank, was the subject of the preceding part of this opinion; and is no longer to be considered as questionable. That the power of taxing it by the states may be exercised so, as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits, than those expressly prescribed in the constitution; and like sovereign power of every other description, is trusted to the discretion of those, who use it. But the very terms of this argument admit, that the sovereignty of the state in the article of taxation itself, is subordinate to, and may be controlled by, the constitution of the United States. How far it has been controlled by that instrument, must be a question of construction. In making this construction, no principle, not declared, can be admissible, which would defeat the legitimate operations of a supreme government. It is of the very essence of
supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view, while construing the constitution.
§ 1034. "The argument, on the part of the state of Maryland, is, not that the states may directly resist a law of congress, but that they may exercise their acknowledged powers upon it, and that the constitution leaves them this right in the confidence, that they will not abuse it. Before we proceed to examine this argument, and to subject it to the test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the states. It is admitted, that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects, to which it is applicable, to the utmost extent, to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a state, therefore, give to their government a right of taxing themselves and their property; and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over
their representative, to guard them against its abuse. But the means employed by the government of the Union have no such security; nor is the right of a state to tax them sustained by the same theory. Those means are not given by the people of a particular state; not given by the constituents of the legislature, which claim the right to tax them; but by the people of all the states. They are given by all, for the benefit of all; and upon theory, should be subjected to that government only, which belongs to all.
§ 1035. "It may be objected to this definition, that the power of taxation is not confined to the people and property of a state. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive with that, to which it is an incident. All subjects, over which the sovereign power of a state extends, are objects of taxation; but those, over which it does not extend, are, upon the soundest principles, exempt from taxation. This proposition may almost be pronounced self-evident. The sovereignty of a state extends to every thing, which exists by its own authority, or is introduced by its permission; but does it extend to those means, which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable, that it does not. Those powers are not given by the people of a single state. They are given by the people of the United States to a government, whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single state cannot confer a sovereignty, which will extend over them.
§ 1036. "If we measure the power of taxation residing in a state, by the extent of sovereignty, which the people of a single state possess, and can confer on, its government, we have an intelligible standard, applicable to every case, to which the power may be applied. We have a principle, which leaves the power of taxing the people and property of a state unimpaired; which leaves to a state the command of all its resources; and which places beyond its reach all those powers, which are conferred by the people of the United States on the government of the Union, and all those means, which are given for the purpose of carrying those powers into execution. We have a principle, which is safe for the states, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy between a right in one government to pull down, what there is an acknowledged right in another to build up; from the incompatibility of a right in one government to destroy, what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power, which the people of a single state cannot give.
§ 1037. "We find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed; and the question, whether it has been surrendered, cannot arise.
§ 1038. "But waiving this theory for the present, let
us resume the inquiry, whether this power can be exercised by the respective states, consistently with a fair construction of the constitution? That the power to tax involves the power to destroy; that the power to destroy may defeat, and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that, which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence, which is essential to all government. But is this a case of confidence? Would the people of any one state trust those of another with a power to control the most insignificant operations of their state government? We know they would not. Why, then, should we suppose, that the people of any one state would be willing to trust those of another with a power to control the operations of a government, to which they have confided their most important and most valuable interests? In the legislature of the Union alone are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures, which concern all, in the confidence, that it will not be abused. This, then, is not a case of confidence, and we must consider it, as it really is.
§ 1039. "If we apply the principle, for which the state of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting
all the measures of the government, and of prostrating it, at the foot of the states. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the states. If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any, and every other instrument. They may tax the mall; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess, which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states. Gentlemen say, they do not c]alto the right to extend statetaxation to these objects. They limit their pretensions to property. But on what principle is this distinction made? Those, who make it, have furnished no reason for it; and the principle, for which they contend, denies it. They contend, that the power of taxation has no other limit, than is found in the loth section of the 1st article of the constitution; that, with respect to every thing else, the power of the states is supreme, and admits of no control. If this be true, the distinction between property and other subjects, to which the power of taxation is applicable, is merely arbitrary, and can never be sustained. This is not all If the controlling power of the states be established; if their supremacy, as to taxation, be acknowledged; what is to restrain their exercising this control, in any shape they may please to give it? Their sovereignty is not confined to taxation. This is not the only mode, in which it might be displayed. The question is, in truth,
a question of supremacy; and if the right of the states to tax the means employed by the general government be conceded, the declaration, that the.constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation."
§ 1040. "It has also been insisted, that, as the power of taxation in the general and state governments, is acknowledged to be concurrent, every argument, which would sustain the right of the general government to tax banks, chartered by the states, will equally sustain the right of the states to tax banks, chartered by the general government. But, the two cases are not on the same reason. The people of all the states have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the states, they tax their constituents; and these taxes must be uniform. But, when a state taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people, over whom they claim no control. It acts upon the measures of a government, created by others, as well as themselves, for the benefit of others in common with themselves. The difference is, that, which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole; between the laws of a government declared to be supreme, and those of a government, which, when in opposition to those laws, is not supreme. But if the full application of this argument could be admitted, it might bring into question the
right of congress to tax the state banks, and could not prove the right of the states to tax the bank of the United States.
§ 1041. "The court has bestowed on this subject its most deliberate consideration. The result is a conviction, that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress, to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy, which the constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the bank of the United States, is unconstitutional and void."1
§ 1049. In another case the question was raised, whether a state had a constitutional authority to tax stock issued for loans to the United States; and it was held by the Supreme Court, that a state had not.2 The reasoning of the court was as follows. "Is the stock, issued for loans made to the government of the United States, liable to be taxed by states and corporations? Congress has power, 'to borrow money on the credit of the United States.' The stock it issues is the evidenceof a debt created by the exercise of this power. The tax in question is a tax upon the contract, subsisting between the government and the individual. It bears directly upon that contract, while subsisting,
1 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. 2 Weston v. The City Council of Charleston, 2 Peters's R. 449.
and in full force. The power operates upon the contract; the instant it is framed, and must imply a right to affect that contract. If the states and corporations throughout the Union, possess the power to tax a contract for the loan of money, what shall arrest this principle in its application to every other contract? What measure can government adopt, which will not be exposed to its influence?
§ 1043. "But it is unnecessary to pursue this principle, through its diversified application to all the contracts, and to the various operations of government. No one can be selected, which is of more vital interest to the community, than this of borrowing money on the credit of the United States. No power has been conferred by the American people on their government, the free and unburthened exercise of which more deeply affects every member of our republic. In war, when the honour, the safety, the independence of the nation are to be defended, when all its resources are to be strained to the utmost, credit must be brought in aid of taxation, and the abundant revenue of peace and prosperity must be anticipated to supply the exigencies, the urgent demands of the moment. The people, for objects the most important, which can occur in the progress of nations, have empowered their government to make these anticipations, 'to borrow, money on the credit of the United States.' Can any thing be more dangerous, or more injurious, than the admission of a principle, which authorizes every state, and every corporation in the Union, which possesses the right of taxation, to burthen the exercise of this power at their discretion?
§ 1044. "If the right to impose the tax exists, it. is a right, which in its nature acknowledges no limits. It
may be carried to any extent within the jurisdiction of the state or corporation, which imposes it, which the will of each state and corporation may prescribe. A power, which is given by the whole American people for their common good; which is to be exercised at the most critical periods for the most important purposes; on the free exercise of which the interests certainly, perhaps the liberty, of the whole may depend; may be burthened, impeded, if not arrested, by any of the organized parts of the confederacy.
§ 1044. "In a society, formed like ours, with one supreme government for national purposes, and numerous state governments for other purposes; in many respects independent, and in the uncontrolled exercise of many important powers, occasional interferences ought not to surprise us. The power of taxation is one of the most essential to a state, and one of the most extensive in its operation. The attempt to maintain a rule, which shall limit its exercise, is undoubtedly among the most delicate and difficult duties, which can devolve on those, whose province it is to expound the supreme law of the land in its application to the cases of individuals. This duty has more than once devolved on this Court. In the performance of it we have considered it, as a necessary consequence, from the supremacy of the government of the whole, that its action in the exercise of its legitimate powers should be free and unembarrassed by any conflicting powers in the possession of its parts; that the powers of a state cannot, rightfully, be so exercised, as to impede and obstruct the free course of those measures, which the government of the United States, may rightfully adopt.
§ 1045. "This subject was brought before the Court
in the case of M'Culloch v. The State of Maryland,1 when it was thoroughly argued, and deliberately considered. The question decided in that case bears a near resemblance to that, which is involved in this. It was discussed at the bar in all its relations, and examined by, the Court with its. utmost attention. We will not repeat the reasoning, which conducted us to the conclusion thus formed; but that conclusion was, that 'all subjects, over which the sovereign power of a state extends, are objects of taxation; but those, over which it does not-extend, are, upon the soundest principles, exempt from taxation.' 'The sovereignty of a state extends to every thing, which exists by its own authority, or is introduced by its permission;' but not 'to those means, which are employed by congress to carry into execution powers conferred on that body by the people of the United States.' 'The attempt to use' the power of taxation 'on the means employed by the government of the Union, in pursuance of the constitution, is itself an abuse; because it is the usurpation of a power, which the people of a single state cannot give.' 'The states have no power by taxation, or otherwise, to retard, impede, burthen, or in any manner control the operation of the constitutional laws, enacted by congress to carry into execution the powers vested in the general government.' We retain the opinions, which were then expressed. A contract made by the government in the exercise of its power, to borrow money on the credit of the United States, is undoubtedly independent of the will of any state, in which the individual, who lends, may reside; and is undoubtedly an operation essential
1 4 Wheaton, 316.
to the important objects, for which the government was created. It ought, therefore, on the principles settled in the case of M'Culloch v. The State of Maryland to be exempt from state taxation, and consequently from being taxed by corporations, deriving their power from states.
§1046. "It is admitted, that the power of the government to borrow money cannot be directly opposed; and that any law, directly obstructing its operations, would be void. But a distinction is taken between direct opposition, and.those measures, which may consequentially affect it; that is, a law prohibiting loans to the United States, would be void; but a tax on them to any amount is allowable. It is, we think, impossible not to perceive the intimate connexion, which exists between these two modes of acting on the subject. It is not the want of original power in an independent sovereign state, to prohibit loans to a foreign government, which restrains the legislature from direct opposition to those made by the United States. The restraint is imposed by our constitution. The American people have conferred the power of borrowing money on their government; and by making that government supreme, have shielded its action, in the exercise of this power, from the action of the local governments. The grant of the power is incompatible with a restraining or controlling power; and the declaration of supremacy is a declaration, that no such restraining or controlling power shall be exercised. The right to tax the contract to any extent, when made, must operate upon the power to borrow, before it is exercised, and have a sensible influence on the contract. The extent of this influence depends on
the will of a distinct government. To any extent, however inconsiderable, it is a burthen on the operations of government. It may be carried to an extent, which will arrest them entirely.
§ 1047. "It is admitted by the counsel for the defendants, that the power to tax stock must affect the terms, on which loans will be made. But this objection, it is said, has no more weight, when urged against the application of an acknowledged power to government stock, than if urged against its application to lands sold by the United States. The distinction is, we think, apparent. When lands are sold, no connexion remains between the purchaser and the government. The lands purchased become a part of the mass of property in the country, with no implied exemption from common burthens. All lands are derived from the general or particular government, and all lands are subject to taxation. Lands sold are in the condition of money borrowed and repaid. Its liability to taxation, in any form it may then assume, is not questioned. The connexion between the borrower and the lender is dissolved. It is no burthen on loans; it is no impediment to the power of borrowing, that the money, when repaid, loses its exemption from taxation. But a tax upon debts due from the government stands, we think, on very different principles from a tax on lands, which the government has sold. The Federalist has been quoted in the argument, and an eloquent and well merited eulogy has been bestowed on the great statesman, who is supposed to be the author of the number, from which the quotation was made. This high authority was also relied upon in the case of M'Culloch v. The State of Maryland, and was considered by the Court. Without
repeating, what was then said, we refer to it, as exhibiting our view of the sentiments expressed on this subject by the authors of that work.
§ 1048. "It has been supposed, that a tax on stock comes within the exceptions stated in the case of M'Culloch v. The State of Maryland. We do not think so. The bank of the United States is an instrument, essential to the fiscal operations of the government; and the power, which might be exercised to its destruction, was denied. But property, acquired by that corporation in a state, was supposed to be placed in the same condition with property acquired by an individual. The tax on government stock is thought by this Court to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the constitution."
§ 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.1 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
1 Providence Bank v. Billings, 4 Peters's R. 514.
own constituents; and such taxes must be uniform.1 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.
1 M'Culloch v. Maryland, R Wheat R. 316, 435.