CHAPTER XV.

POWER TO BORROW MONEY AND REGULATE COMMERCE.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1065. Nor can any power be inferred in the states to regulate commerce from other clauses in the constitutionconstitution

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