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Construction construed, and constitutions vindicated online

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materially, the generality of the assertion made by the courts
or transfers its application to the state governments. It was
instituted to preserve that which it represents, and not as the
guardian of individuals whom it does not represent The
union was established for the management of the general con*
cerns of the states united, and not for the management of lo-
cal or individual concerns ; to which intention the construction
of the senate has a distinct relaticm. The present senate is
exactly analogous to the old congress, in which each state
had one vote, as each has two in the present senate ; and the
present senate is no forther a representative of individuals,
than was that congress. Both were chosen by the state legis-
latures. Hence it appears that the government of the union
does not repres^it all, as the court assert, and of course, that
it has no ri(^t to act for all. The house of representatives is




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elected hj states ; but that house is not the goTemmmit of the
union ;, and the mode of its electi<>n may be easily accounted
for, exclusively of an intention by that mode, to extend the pow-
ers of the federal goyemment The want of a power in the old
confederation to act upon individuals by taxation, had destroyed
its efficacy, and this defect was the chief object to be removed in
the formation of *« a more perfect union.*' The concomitancy
of representation and taxation, dictated the form of the house of
representatives, and not an intention of extending the powers
of the federal government, by the mode of representation esta-
blished in that single branch. For, the president is also elected,
in the first instance, upon indirect federal principles, and
directly by states, in case of no election by electors. As two
branches of the federal government are federally constructed,
as only one participates of individual representation, and as
the construction of this one was dictated by the limited power
over persons bestowed for effecting federal, and not personal
or local ends, the assertion of the court is exploded by fac<;
and the inferences from it subverted by a genuine construction
of the federal constitution. It never intended to inflict upon
state legislatures, elected by all, a responsibility to the federal
senate, not elected by the people, and only the representatives
of state sovereignties. Nor did it intend, by bestowing a limit-
ed power of taxation upon the federal government, for the spe-
cial purpose of eflfecting federal ends, and by sujbjecting this
power to the check of personal representation, to make this
partial representation a pretett for assuming local or personal
powers, and for exercising the unlimited power of « acting for
all." If this reasoning be true, it applies conclusively to banks,
corporations, roads, canals, and congressional patronage.

To sustain the assertions I have been combating, the couft
*iays, "There is no phrase in the constitution which excludes
** incHental or implied powersJ^ " Its nature requires that
** only its great oui-Unes should be marked." « We find in it
^' the great powers to lay and collect *taxes, to borrow money,
'< to regulate commerce, to declare and conduct a war, and to
« raise and support armies and navies. Can we adopt that
" construction, unless the words imperiously require it, which
'• would impute to the framers of the instrument, when grant*-
^ ing these powers for ih%publick good, the intention of impede



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107

<* ii^ their etercise bj withhdding a chqice of means? The
** instrument does not profess to enumerate the means hj whicfi
** the powers it confers may be executed* nor does it prohibU
^ the creation of a corporation, if the existence of such a thing
''be essential to the heneiciid exercise of those powers.'',

If the assertions we have just examined are true» they do not
need the various auxiliaries summoned to their assistance in
this extract ; if they are false* these auxiliaries cannot make
them true ; and as the assertions comprise the princi{des to be
vindicated* the auxiliaries brought forward in their defence are
of no use or weight, if the principles themselves should have
been exploded. The great weight of the authority of the courts
however* will justify their examination.

When the adoption of the federal constitution was under
discussion* its enemies expressed an alarm* on account of the
magnitude of the powers conferred on the federal government*
and its friends an ^^ehension of its feebleness* compared
with the powers reserved to the states; but neither party con-
tended* that an amplification of the greater division of power*
and of course a diminution of the lesser* could constitutionally
be made by equipping the giant in all the panoply of means*
implication and inference* and compelling the dwarf to appear
naked in a combat with his antagonist. On the contrary* it
was successfully urged by the warmest friepds to the constitu*
tion* and in particular by the authors of the Federalist* that the
supposed inequality of power between the state and federal
spheres did not, exist; and that either division, especially the
state, was able to balance and controul the other. la this com-
putation* the comparison was made between the federal sphere,
and the state sphere* comprising all , the state governments;
and the equilibrium of power was Reduced from the expectation,
that if the riglits of one state were assailed by the federal go-
vernment, the rest would not suffer their copartner to be over-
whelmed by the weight of power* and their own rights to be
destroyed by a victory, in a contest so unequal. To estimate
the magnitude of their relative powers* the state governments
ought to be considered as constituting one s{Aere* and the fede-
ral government another. Perhaps a cool philo80{Aer may con-
aider the security of private property* the protection of per-
sonal rigbt8*the suppression oi (crimesi the care of good manners



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lOS

and the catalogue of nmmcipai regvlations, as embr^icing a
sphere of action^ of greater moral extent, than the powers dele*
gated to congress ; and if the two spheres are to be geograpbi-
callj compared, the map demonstrates their equality. If these
spheres are equal as to magnitude, one magnitude attracts un-
defined appurtenances as stronglj as the other ; and if the
fraroers of the constitution designed to balance magnitude by
magnitude, thej could not also have designed to destroy the ba-
lance, by annexing to either an exclusive privilege of attracting
undefined -powers.

Be this as it may, I contend, that the federal constitution,
so far from intending to make its political spheres morally
unequal in powers, or to invest the greatest with any species
of sovereignty over the least, intended the very reverse; and
that the court have recognbed the latter intention by avowing
its right to declare an unconstitutional law, void. As the
powers of congress must be confessed tp transcend those of
the court, much farther than tiiey do those of the states, it fol^
lows, that if they cannot be constitutionally used to contract
the powers of the court, they cannot be constitutionally used to
contract the powers of the states. The reason why great
spheres derive no authority from magnitude to transgress upon
small spheres, is, that both are donations from the same source ;
and that the donor did not intend, that one donation should
pilfer another, because it was smaller.

^ Can we adopt that construction, unless the words impe-t
** riously require it, which would impute t^ the framers of the
*' instrument, when granting these powers for publi^k good,
" the intention of impeding their exercise by withholding a
<< choice of means?" This question might be answered by
another. Can we adopt that construction, unless the words
imperiously require it, which would impute to the framers of
the constitution, when granting powers for fublick good^ the
intention of allowing one sphere by an unlimited choice of
means, to impede the exercise of powers conferred upon others ?
It admits also of so many other answers, quite satisfactory,
that a few only need be urged. There is no imperious, or
rather positive power, requiring the judicial sphere to declare
a law void ; yet it claims this right, by which it may limit the
means of legislative power, and impede its exercise. Thb can.



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109

o^j h% justified bj to-ordinacy and redtrictiims imperiandji
established, in the pwittve divisioii of power» into limited
political spheres* This division was intended to efect ^<^
precise end, for t^e publidc good, here objected to ; tiie end
of controuling power by power. And if^is controul does not
extend to means, as power €ann<^ be exet'cised nor nsorpatioii
become successful, except by means ; all our divisions, restric*
tions and limitations of power, designed to prevent, for the
publick good, the profligacy it hats invariably displayed, when
uncontrouled, must become nugatory and ineflfectoaU The
words of the constitution ^are literally imperious in reserving
to the states, for the publick good also, a right of taxation sub*
jeet only to a positive limitation. The means by which the
stat^ may provide for raising a revenue, being expressly
bestowed by the people, are surely as sacred, and as consti-
tutional, and as likely to advance the publick good, as any
conjectural coufiicting means, which can be imagined by
congress. .

" There is no phrase in the constitution, which excludes
^ incidental i>t implied powers. Its nature requires ^uit only
*< its great eutUnes should be marked/' A contrast between
positions often elicits light. There is no phrase in the consti-
tution which even insinuates, that the actual divisions of power
should be altered or impaired by incidental or implied powers.
A revolution in our system of government would be no longer
ai^tici|mted, after supplanting tiie position *' that actual powers
controul implied powers," and planting in. its place the dogma
*< that implied powers controul actual powers.** A great ono
would be effected, if it could be established, that " incidental or
implied powers not excluded'' were not prohibited. Let it be
remembered, that the great outlines of state governments are
more sl^Uy referred to by the constitution, tiian the outiines
of the federal government; that the means for executing the
powers delegated to the latter are frequently marked, whilst
those for executing the powers reserved to the former, are left
chi^y unlimijted* And then let it be computed, which sphere
may make the greatest use of the stonge position *' that means,
or incidental, or implied powers not excluded, are not prohi«
bited," however they m?iy be at discord with the positive divi-
^ns of power. If this reasoning of the court be incorrect, the



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no

conclasion it is used to establish '< ftat the creatioii of a cmpo-
** ration, if the existence of sach a thing be essential to the
^ beneficial exercise of the powers of congress, is constitU'
** tional, because not proAi&ifed"— -is incorrect also, if however
beneficial considered alone, it disorders or impairs actual pow-
ers bedtowed upon political spheres, as in the case of limiting
the power of state taxation, farther than it is litnitod bj the
constitution. The idea, that one limited sphere has an exclu-
sive privilege of doing whatever it may conceive to ** be essen-
tial to the beneficial exercise of its own powers" is still more
extravagant, more subversive of co-ordinate spheres, and ut-
terly inconsistent, in every view, with our system of checking
power by powjer ; as well as with the English theory of ba-
lances.

Another argument urged by the court is,^ I think, less
ingenious than any of those we have previously considered. It
says " The power of taxation by the states is not abridged by
" tlie grant of a similar power to the government of the unions
** it is to be concurrently exercised by the two governments^
*< The fitates are forbidden to lay duties on exports or imports.
** If the obligation of this prohibition must be conceded ;. if it
«< may restrain a state from the exercise of its taxing powers on
** imports and exports, the same paramount power would seem
" to restrain, as it certainly may restrain, a state from such otket
** exercise of this power as is in its nature incompoHhle vottk
•*and repugnant to the constitutional laws of the union." The
artifice of acknowledging a constitutional principle, and dis-
tinctly admitting the powers actually bestowed on the federal
and state spheres of our government; and then of immedi*
ately defeating these actual powera on one side, and extending
them on the other, is repeatedly resorted to in the opinion of
the court. But, tliis bold mode of reasoning is in every instance
completely overthrown by. the principle, if it be a true onc^
'« that expressed powers and rights contract and limit implied
^powers and rights, and that implied powers and rights do not
"controul and limit expressed powers and rights." The asser-
tion " that the same paramount power" (by which I understand
the constitution) *< which restrained the states from taxii^
"imports ^nd exports, may restrain a state from such other
" exercise of their taxing power as is in its nature incompa^iiU



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^^unih and repugrumt i^ ike ^shstUuHmal laws of (he nmon/' by-
blending a seqnitiir and a non sequitar together and confoand-
ing our ideas, endeavours to ddndfi them into an erronecms
conclusion. Stript of this ambiguity the argament stands thus :
-** The constitution n»ght Ijiave further restrained, and therdbre,
''it has further restrained the taxing power €i the states.^
Tlius fairly stated, ^e conclusion does not follow. To use the
prospective terms employed by the court, the argument would
be this : " A constitution may, luid therefore has further re-
** strained this power." This mode of anticipating innovation,
renders the mode prescribed for amending the constitution
quite superfluous. It unfolds to legislatures the entire cargo
of powers not prohilnted, but not given ; they are told that they
may exercise any powers^, which the constitution might have
given them, and are very courteously invited to pick and choose.
As a complete spherical sovereignty is conceded both to the
federal and state governments, and as the constitution does
not forbid to either this mode of extending their respective
powers, it is open to both ; and the laws oi neither, under this
novel, constitutional power, can be unconstitutional, because
»taike laws made in virtue of its spherical sovereignty comprising
n right of construction, will be equally constitutional with
federal laws, when both may defend themselves by a com-
i^on principle. The clashings likely t6 arise between spe-
cified powers and rights will be nothing to those, which
would be produced by a mutual power to assume implied rights
1^ powers not prohibited. But I believe that I have misun-
derstood the court in supposing, that it meant << constitutional
power'' by tile phrase " paramiount character.** It seems by
Ae expresrion *' constitutional laws of the union" as if it meant,
not that the constitution, but that congress was the paramount
power. The consideration of thi^ idea is postponed to the
next section ; at present I shallonly observe that the laws both
of the federal or state governments may be either conformable
or repugnant to the constitution ; that one government is
eqtially restrained with the other from passing laws repugnant
to the constitution ; and that neither can be absolved by a
claim of one to the title '* paramount" bestowed upon neither,
tb defeat the laws of its co-ordinate sphere. 'Vhe paramount
power of the people, by prohibiting the states from taxing



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imports ttid eiports» did not create a paramount power in
congress, to extend the prohibition to internal objects of taxa-
^on. it is therefore obvious, that the restrictive expressioa
*« constitutional laws of the union'V has no relation to the
•ufaject under discussion, as that relates entirelj to unconsti-
tutional laws ; and that it is used merelj to conceal, under
the position "that the states have no right to pass unconstitu-
*• tional laws,'* which is true, the conclusion ** that the federal
** government possess a paramount and exclusive power of
" deciding upon the constitutionality and unconstitutionalitj of
**all laws, both state and federal,'^ which is denied to be true.
Let us illustrate this reasoning by the fact. Confess have,
by one corporation, subtracted from the fund made liable by
the constitution to state taxation, thirty millions of specified
fight, by the instrumentality of power implied or not pro-
hibited. The same species of instrumentality, not being pro-
hibited, may also be implied in behalf of the states. And to
place the federal and state governments in the constitutional
relation exbting between tiiem previously to its exercise, the
states ought to subtract thirty millions also from the specified
fund exposed to federal taxation ; a precedent by which one
fund is diminished to the extent of thirty millions, and by the
capacity of an incorporating power to diminish it without
limitation, decides the fate of either of these sovereign spheres,
which should be deprived both of resistance, and every coun-
tervailing expedient. Revenue is the sustenance of powei^.
The old congress dwindled into imbecility, because the states
could subtract from its funds without limitation ; and the old
states will ultimately sulier the same fate, if the new congress
may by corporations subtract from their power to raise a reve-
nue, without limitation. The position between these t#6
spherical sovereignties would be exactly reversed, and however
it may be justified upon the principles of retaliation and
revenge, the reciprocity of defeat would, by the humiliation
of the state governments, inflict greater evils upon the people,
than they suffered ft'om the humiliation of the old congress
from a similar cause. Our experience had taught us the
necessity of anr independent revenue for the support of power ;
and the constitution under the conviction of experience, invest-
ed each sphere, sovereign say the court, with this paramount



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Becessiiy, in terms tiie most distinct ; bfut^ if another -paramount
necessity ibr creating corporations, shall be able to subtract
ii^at it pleases from the paramount necessity for reveme,
these spherical soverrignties will occupy the stations of Eng-
land and Ireland, whilst the former took away revenue from
the latter, by quartering a substantial, though not a nominal,
corporation af pensioners upon the Irish funds. Had it been
|nt)po8ed in the convention, still further to reduce tiie fund for
^v^nue left with the states, by investing congress with a
power of subtracting any portion or the whole of internal state
funds for rusing revenue ; or had such a constructioa been
put upon the constitution whilst under the consideration of
the people, it is impossible to hesitate in our opinions as to
^the results ; and this unavmdaMe retrospective impression is
iu> slight proof of its real intention.

Sometimes the court reject a restiiction imposed upon
particular words by the general tenour <^the constitution, and
at others eiMieavour to des^y the most ISieral rights, though
according with the general tenour. An exceptimi excludes
that which it does not contdn* A delegation of power does
the same. The prohiUtion to ttpc exports and imports leaves
untouched every other species of taxation. The delegated
power of taxation to coDgr^ss, t^ootains no new prohibition
upon the states. The intention in both cases is literally
expressed. The reservation of all powers not delegated to the
United States, nor prohibited to the states, is a third literal
•restriction of the prohibition to tax imports and exports, to the
things actually prohibited. Add to the positive letter the
consideration, that sovereign states were delegating limited
powers ; and the idea, tiiat both the specifick prohibition upon
the states, and the restricted delegation to congress, may be
defeated by an implication, hostile to both, and contrary to
th^ rules of construction, seems entirely inadmissible. Had
the fiNuners of the constitution conceived, that the state taxing
pewer» originally unlimited, could be limited by implication,
a far mcnre specious foundation for this doctrine was furnished
by the power given to congress to regulate commerce; as the
taxation of exports and imports by the states might have been
<* incompatible with and repugnant to" this constitutional
P



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114

power ; uid hy not confiding in this impliod specie of pr^ii^
tution, they positively reprobate it. The iraplicatipB in thii
case would have been specially confined to imports and export%
had thfs constitution failed to prohibit the states from taxing
them ; but as it does contain tiiis limited prohibition, I canfio(b
conceiTe by what train of ratiocination, the limited {Nrohitntioii
expressed, can be made to b^t an unlin^ited power in congress
farther to restrict the original state right ef taxation*

It has been proved, that the English spherical sovereignty
rejects any claim of sovereignty by one sphere over anoth«^
and limits the means of each, by the sphere of each. Admitting
composed of spheres to be still one and indivisible
al sovereignty of spheres here would ^so be one
3. Unity is an innate quality of sovereign poweiv
islative, though it may be compounded of indivi^
the moral or political beings called a sovereignty
re are units, oi whatever individuals composed.
Such is the case with the sovereignty of the people. As this
is composed of natural individuals, a sovereignty of spheres is
composed of individual spheres. Neither of these can possess
a better right to assume by any means a superiority over cqp
fpheres composing a sovereignty, than one citizen under the
pretext that he also is a component part of the sovereignty of
the people can assume a superiority over other citizens. la
both cases, however a love of power has suggested a multitude
of means, by which both the individuals composbg the sove*
reignty of the people, and the individuals composing a sove^
reignty of the spheres, have violated their allegiance. Sove-
reignty here resides in the people, or in our individual political
spheres. If in the people, these spheres are limited depart-
ments only, not having more power individually, than if they
participated as is contended of sovereign power. If we even
enlarge this power, by endowing our political spheres with
sovereignty, then one sphere, being only an individual of the
sovereignty, has no controuling authority over the others ;
such an authority, however disguised, would destroy a sove-
r^gnty of sfHieres and establish a sovereignty of one sphere ;
and this sphere would be a despot over the others, just as one
citizen, who obtains a controuling authority over the rest, is also
a despot. The case is peciseljr the same if one sphere of ac-



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115

Hm €m bj^^ftimM ebtahi a <»tttrdtiM6g tutt^rity over ttit
dther spkeres of action ; the Irightg of the eontrouled gpherea^
derived from the sovereignty of the people, would be nrade
Ikpend^nt upon another sphere of actimi, created by the 8am€
fti»^onty. Tfauo & citi^n having social rights loses tiiem, if
Another citizen has by any means obtained an authority of con^
fouling them. It follows from both aspects of the a»e, one cf
Ivhich mnst be admitted, that political spheres, eonstitnting a
^^ricid sovereignty, must controml and restrain each other ;
ttttt pditieal departments, circnmscribed by the sovereign
power of the people, mast still more clearly contronl each
dtteer ; that is, spheres of action must c(mtroul each other ; and
ihat th« mc^ms of each of these individual moral beings, mast
also be eontrouled and restrained by the means of the others ;
because an authority capable of controuling the rest, obtained
l^y one, destroys the end and design of either political systemw
The argumeM in reply to^ this reasoning is, that anless it
supreme autiunrity i» alkWed to the federal l^slature and
federal^ comets, to conti'oul the legislatures and courts of the
itates, suboi^nation vnSk not exiflft, tand sundry inconveniencei



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 11 of 34)