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John Taylor.

Construction construed, and constitutions vindicated online

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*! tioa of the former." The reader vriil see in these quo-
tatioDis an affirmatioQ of the prmcipks for which I have
contended in this section ; and he will also discern, that the
popular confidence haa. been extended in a greater degree to



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file state than to the federal ^emme&t, both in the mass ef
powers bestowed, and also in the dependence upon the former to
which the latter is subjected. ' I forbear to enumerate the advaiH
tages which the states possess in this struggle for conidence, be^-
cause I earnestly hope that the ever-to-be-aToided contest
will never occur. They are perhaps too copiously remembered
in the book last quoted. Let me, however, remind ih% reader,
that the same book describes the superior sagacity and iutd-
ligence ci the state legislatures, for detecting and repelling
artful and insidious violations of the federal constitution, as a
feature of our political system, most happily contrived to pre-
vent the bad effects universally expenenced from tornadoes of-
antipathy, affection, prejudice and zeal, to which even repre-
sentative absolute power has been universally sutject ; and by
which a mighty effort in France to establish a free government
was frustrated. How can this feature of our political system,
80 highly eulogised in the Federalist, be preserved, if the nieans
for ^ving it efficiency should be taken away from these same
state legislatures, by investing the federal judges with a su-
preme power over these means P Ought this inestimable feature
of our government, by which deliberation is substituted &r
passion, intelligence for prejudice, and restraint for unshackled
ambition, to be exchanged for a confidence, in a single le^s-
lative department P Yes, says the last ex^act from the opinicm
of the court, it will be advantageously bartered for a power
in the legislature of the union to cdntroul measures which
concern all, because the people can possess a confidence that it
will not be abused* But, the constitution intended^ according
to the Federalist, that the legislatures of the states should be
a check upon the legislature of the union, and when this check
is endeavoured to be defeated by the words *« confidence and
supremacy,'^ it only illustrates the absurdity of construing it
by an excessive interpretation of particular terms, instead of
adhering to its obvious intention.

The convenience or necessity of untforatity is tiie great argu-
ment, upon which tiiis vital change of the federal con^tution is*
contended for. Archbishop Laud, under the supremacy of
Charles the second, attempted to effect a religious unifinrmity by
the instrumentality of judges, and^rew for that purpose a gi^t
portion of the business, of the common law courts, into tim*



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eci^Mtftical,htt?iiigrt^iwbeAd(mesaprem6coiH^ Ifiadtgeot
iras ta estaUigh arbitnuy power ; and that his means were as
wke as they w^tt mtked, is proved by the necesMty of a loi^
and blood jr civil war to defeat it The rights of the puritans
under Charies's sii]^emacj» experienced the &te to be expected
1^ the rights of the states sulijected to the jorisdietion of fiederal
judges, under a supremaisy in congress. One sectt subjected
to the laws and judges rf another sect, or one goTemment* snb^
jecled to the Isrws and judges of another goTemment* may
consider its rights as equally secured or lost The Eng^iidi
saw the cimsequenees of the judicial usurpations by tiie eccleri-
afitical courts, and many great men, though adverse to the
I»irkans, united with them to defeat a progress so obvious
towards arbitrary government Ev^y stretch of the jurisdiction
ei the federal ^courts, in virtue of the supremacy of congress^
must operate upon state ccmstitutional rights, as accessions of
ecclesiastical jurisdicti<m, in virtue of the supremacy of Charles,
operated uptrn common law rights in England* The uniformity
attempted is as impracticaUe and chimerical in one case as in
ik» o^er. if religious sects^ severed by speculation, cannot be
reconciled by any liiii^ short of tyranny, how can great states^
S<evered by local interests^ be coerced within one bandage by a
weaker power i The remedy in one case is, to let the ojunion^
and the internal self-government of churches alone. The reme-
dy provided by the federal constitution for the other* was also
to let alone the local interests and internal self-government of
ihe states. If e^ie state, or a minority of states, under the
contended-for suprema(gr of congress, to be enforced by the
' kdinl court should interfere with the internal affidrs of
another; it cannot be justified by any mode of reasoning;
except on^, which would prove that one churchy or a miyerity
of churches, may rightfully and beneficially interfere with tl^
ittteimal affiura of another. Mankind have discovered, that
equid or co-ordinate religious rights are preferable for hu<»
sum happiness, to uniformity ; and every sect treats the idea
of submission to another sect, with scorn and derisiim. Laud
tost hi9 head for assailmg an opinion so natural, by eccle-
siastieal supremacy. Will the notion in the states of their
natural right to mtemal self-government be more conquerable,
by federal si^remacy f Religious uniformity was recommended



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ai a go6d thiiq^ by cuniu&g knamy or fimatical seal; bat
neither {rfiilosophical theory nor fiiaatical zeal will adrocate
the uniformity to be produced by the aupremaey of congress or
the federal court Solid selfiahneasy and not moral reasoning;
to de^royiand not to nurture our constituticRial checks and di-
visions of power, will be the motire for assailing state ri^ts.
No imp^iant colMsion would ever happen between the federal
and state governments, if it was referred to the arbitrament of
the common good or general interest only. To keep the peace
between them, it is only necessary to discern whether they arei
embroiled by honest patriotism* or by the pretended patriotism
of monopoly, speculation, selfishness or amMtion. Even ehurcfaes
have been much oftener involved in controversies by fraadulent
and pernicious designs, than by honest and intemperate zeaL
There was no remedy i^^st such fraudulent arts, except that
of preventing the artificers from getting any thing from their
occupation, by allowing to these churches the natural r^t of
internal self-government. So, by a sacred adherence to the
right of the states to internal self-government, the matiufac*
turers of broils between them and the federal government,
would be disal^ed from getting any thing by the occupation, and
then the business will cease. In times <tf ignorance, mankind
have been bitten by a political or religious tarantula, and either
cured or made worse by sounds ; but now, their knowledge is
such, that they can keep both their temper and their honesty
with great philosophy in all discussions, which do not involve
some exclusive advantage for themselves.

Besides the counterpoise inteiuled by the federal constitution
to be established between the federal and state legislatures, two
clauses of the constitution seem positively to have renounced
the idea of any species of sovere^nty or supremacy, by whidi
congress could create or regulate property. It must purchase
with the consent of the state legislatures real property, however
necessary or tonvenien$ in its opinion for the common defence or
f;eneral welfare. As this consent is necessary to subtrsct
real property from state resources, and subject it to federal
legislation, it follows, since the state internal power is the
same over both real and personal property, that the latter can*
not be subtracted from the state internal power, and transferred
to the exclusive legislation of congress, without any state con-



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teiU^ Congresft mBj dispose of* and make regala^nB oobceni-
Hig the property of the UmUed States, 'mfAjing, very distinctfy,
tlu^ it cannot dispose of» or make regulaliona coBcermng the
property of individaab^ embraced bj the states. These, and
other specified powers ^ven to congress oyer persmis and pro«
perty» seem to demonstrate, that it does not possess any nnspe-
cified power over them derived from the words ** sorereign and
"supreme."

Finally, it ought to be observed, that tiie constitution does
not invest the federal court with any jurisdiction, in cases of
coUision between either the legislative or judicial powers of
the state and federal governments; and as such a jurisdiction
would be infinitely more important than any other with which
it is endowed, the mnission is not sufficiently accounted for by
sayii^ either that the case was overlooked, as never likely to
hi^n^en, or, that though its occurrence was foreseen as extreme-
ly {HTobal^e^ this important jurisdiction was bestowed by infer*
ence only, whilst cases of jurisdiction comparatively inngnifi-
cant were minutely expressed. 3ut the omission is well account-
ed for, if we consider the constitutipn as having contemplated
the state and federal govomments as its co-ordinate guardiims^
designed to dieck and balance each other; since, having esta-
bliahed that primary and important principle by ^e division
of powers between them, it would have been as obvious an
inconsistency to have bestowed a power on the federal courts
to settle collisions as to tiiek nni<»al r^ts, as to have reserved
the same supervising power to the state courts.

I hqpe the reader ha9 pevceived the propriety of my endea-
yours, to aseertw iht principles of our fcMrm of government, as
preparatory to & oimsideration of the aujnremacy claimed for
congress, sujj^^osed by the court to justify its decision ; and as
necessary to enable us to determine, whether the ground it has
token is real cnt imaginary.



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SECTION, iO.
bank: decision— common defence and gene-

' RAL welfare. — necessary AND PROPEIL—
convenient— NATIONAL.



I turn with sorrow from the constnictioB of tn entire ajstem^
to the science of verbality ; from a consistency of meaning, to
the artifice of verbalizing a single word, to destroy that
consistency; and proceed to examine a mode of managing
controversies, into which prejudice, ambition and self-interest
continually strive to drag reason. The frippery of precedents*
like the tinsel patched upon lord Peter'd coat ; here a bank*
there a road, yonder a canal, bounties for these, their payment
for those, bow an epaulet of sovereignty, and then another of
supremacy, may bespangle our form of government with armorial
ensigns of despotism, and yet leave much of its original
substance perceivable ; but the art of verbalizing single words
into a different system^ may render the constitution as umntelli-
g^le, as A single word would be made by a syllabic
or a jumble of its letters ; and turn it into a reser
meaning for which its expounder may have occa^
that wise imd good men amy entertain a grea
the British form of government; and may a
beHeve, that it would improve the constitution or the tinitea
States to draw it by construction towards that model : but yet
I contend it would be proceeding too impetuously, to borrow
its modes of construction practised in its most oppressive
periods, and resisted by its best patriots*

In the time of James the second, all the judges of En^and
(except one) decided *« that the laws of England were the
**king^8 laws. That it is an inseparable branch of the jire-.
*'rQgative of the kings of England, as 0/ aU other sovereign
'^princes, to dispense with all penal laws in particular cases,
''^xiimpaHicularoctasions. That of tftese reasons and neces*
V



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^sUy the king is the sole ju^e* That thig is not a^trast iiow
'* invested in and granted to tlie present king, but the ancient
** remains of the sovereign power of the kings of En^and,
** which was 6ever taken from them, nor can fte.'^ Is not this
decision a parallel both in langns^ and substance with tbs
decision of the court, and a complete precedent for its defence^
except that the mode of constructiim it adopts is no longer jus-
tified in England ? The liarmonj between the words " sove^
"reignty, particular cases, prerogative, reasons and necessity,'*
used by the English judges, and tiie words "spherical sove-
••reignty, supremacy, convenience and necessity," used by the
decision, strikes the ear, and settles in the nndarstandio^
Prerogative arises out of the king's sovere^ty ; supremaej
out of the spherical sovereignty given to congress. This sovc^*
rei|^ power of the kings could net be taken away ; that of
congress may remove all obstaeles to its action. Of particular
cases, occasicms, reasons and necessity, the king by virtue of
Ms prerogative arising out of his sovereignty, is declared to be
the sole judge ; of convenience and necessity, congress in
virtue of its supremacy, ari^ng out of spherical sovereignty,
is declared to be the sole judge. The king may dispense wtth
the penal laws of England; but the decision does not declare
fimt congress may dispense with tiie constitution. It only
invests congress with a spherical sovere^nty blotting a su-
premacy for removing all . obstacles to its action, and establi^es
the premises producing the conclusion, that congress may
dispense with the rights reserved to the states. The English
judges reasoned illogicdly, by inferring only from their pre*
mises that the king could dispense with penal laws ; but the
decision of the court, rejecting an error so apparent, does not
limit the supreme power of congress, but leaves it co-extensive
with the premises asserted. Thus, as t(ie king's sovereignty
made the laws of England his laws, so the supremacy of con*
gross makes the constitution of the United States, its consti*
tution.

Though this mode of construction be ex^oded in Engliratd*
jei as it is revived h^^, I shall endeavour to bestow <m it the
consideration merited by its consequences.

" To provide for the common defeiice and promote the genfi*
^ welfcre," powcars are bestowed upon the fe^orsl «M^eni'



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165

meiit, with a right to make dl laws which shftH be me(f$iarg
and prtyper for carryiiig the delegated powers into executioii.
8ome sound fH'inciple, sufficietit to ascertain the true constrae-
tidi of these expressions^ ought to be settled. The constitu*-'
tion consists of correlative rights and duties, divided between!.
^ state and federal govemmeBts ; and neither allotment was!
intended to become the prey, directij or indirect! j, of the;^
•other. This^iviston was a limitation of the powers of both, and
the laws to be toade by either could not violate it» because a le-
gal power in- either of that character would have rendered the
divisionitself utterlyinefficient* The federal government cannot
dimtmsh the right of taiatton reserved to the states, nor the
state governments, the right of taxation delegated to the federal
government, because these rights clash ; since their ^slashing
being foreseen as certain, was not intended to be prevented bj
the division. The division of powers was not intended to be
8ubm*dtiiate to a dashing of rights, but a dashing of rights was
. intended to be subordinate to the division of powers. These
positicms are entirely rev^^d, if either party received with its
share of powers a supremacy aUe by inferences to>e made by
itself, to remove all obstacles to its action ; because all the
clashings of powers^ certain, f(H*eseen»and not provided against
by the constitution, would become accessicms^ of power to the
construing party and defeat the division itsdf. It would be
exactly the ease, as if the senate or house of representatives,
between whom powers are divided and clashings arise, as in all
such divisions, should rither of them usurp a sijpremacy over the
4)ther, to remove the obstacles to its action^ produced by these
clashings. The ideas of limited powers and unlimited inferen-
ces Hbeing irrecondlable, any construction of particular words
or phrases, which would unlimit the limitations exprep^ed, is
uneonstitutiomd, if the constitution intended to make any sub-
stantial division of power. The field of expediency and con-
venience bekmged exclusively to the framers of the constitu-
tion, and was shut by the constitution, a^inst the trustees
Sttbsequ^itly app^ted to execute it, because otherwise it
would have been, no constitution at all*

The principle "that clashings of ri^ts are subordinate to
wflivisions of power" is ai^licable to ti^e structure of the state
in4 federal gsiFei»m€|atSt and restraias their le^latiye. execu- ^



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/ ttre and judiciil departments wHUn their proper orbits. If"
^ oittier conld make the rights of a co-ordinate department sub*
ordinate to itself; bj inference or expediency, those cmistita-
tional divisions of power would be destroyed. I therrfors
cffiitend, that no constroction of particular words or phrases
can change or abolish the division of power between the state
and federal goremments, without changing or aboBshing an
essential principle of the constitution itsel£ *

It seems to me, that constitationai law, enacted by the peo-
ple, is as binding upon political departments, as civil law is
upon individuals ; and that none of these departorants have
any better right to dischuge themselves from its observance
by the f^ea of amvenience, than an individual would have to
disobey a civil law under the same |^ea.

The states united «*to provide for the eommmi defence and
tiie general welfere.'' The words ^ common and general" can
only refer to the parties uniting, and these were the states.
Therefore, if these words bestowed any power, instead oi only
reciting the ends intended to be accomplished by the union and
itstetm8,it could only extend to interests *• common and geaiend''
to all the parties, in their state associated individuality. But
they have been construed as conveying some local and internal
powers over persons and * things, and if they convey any, it
must be admitted that they bestow all powers of this character.
To determine the propriety of this construction, we can only
^advert to the nature and compass of the powers delated to
the federal government, and reserved to the states. No power
[ is given to the general government to pass a law for the r^ula-
tion of private property, or the security of personal rights;
therefore, << common defence and general welfare" did not
include these important objects of welfare and defence; and
they are provided for in the reservation to the states, because
they are not included by these terms. These terms of course
have in view the defence and welfare of the states, as states^
and not the internal government of the individual states.
The provisions of the constitution, in relation to foreign nations
and domestic insurrections, are analogous to this construction.
Had these words conveyed power, there would have been no
occasion for the provision in the case of insurrection ; and th*ia
special power of internal interposition, excludes a general-



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165

fitfw^r of the same tenour. A simihur exclusum is cmittined
in tiie special power bestowed upon congress to legislate for
the ten miles square ^ in all cases whatsoever.'' As this
anomalous district would lose- state care and protection, it is
thus specially provided for» because the words under amndera-
tm gave no power to the federal government. Had they done
ao» no specificatbn of federal powers would have been neces-
iary ; and if they do so, the subsequent specifications mean
nothing. Under the first supposition, the convention needed
only to have organized the government after the first clause of
the constitution, to take care of the eommon defence and gene-
ral welfare, which would have comprised unlimited power.
And if the seccmd supposition be true, then a catalogue of
powers was superfluous, because tiiese words covered both those
specified, and all otiiers- not specified, which ini^t advance
the general welfare. It follows, either that these words
convey no power, or that the subsequent definitions of the
powers d^egated restrict their meaning. In fact, they are
obviously introductory, and not decretal. The ends in view
are recited, and then follow the means for effecting those ends.
If Aese means should prove to be insufficient, the constitutiottt
far from confiding to its officers a power to »ipply deficiencies,
provides for the occurrence. In all questions, therefore, con*
coming banks, roa4s, canals, taxes, agriculture, nmnufiictures
and internal or local {HXMsperity, the oonstructimi of U^e consH-
tuHan ought to be confined to its decretal sections. In tiiese
we find two concunrent proviskms. Both congress and the
state governments may tax the same property and suppress the
same insurrections. And the specification of these two in-
stances of a concurrent power excludes the idea of a concur-
rency of power, in the otiier enumen^ed cases.

But, if the sweeping powers said to be conveyed by the ntro-
ductory clause of the constitution cannot be proved, their
absence is said to be neariy supplied, by the power given to
congress to make all laws, ** which shall be necessary taid proper
•« for carrying into execution the forgoing potrers." I shall
endeavour to prove that these words, far from enlaiging, restrict
the legislative power of congress ; and that, coupled with other
parts of the constitution, they also limit the jurisdiction of the
federal courts. 1. They expressly limit tiie legislative power



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166

of congress to laws necessary and proper for executing the
ddegaied powers, and bestow no anthoritj to assume powers
fu4 delegated. £• The jurisdiction of the federal courts under
kws, is limited to « the laws of the United States^" meaning
such laws as these states by their representatires in congress
hare a right to enact*. Thej have only a right to enact laws
^ for carrying into execution the delegated powers.^ 3. Con-
gress have n6 power to enact laws ^ necessary and proper %
** carrying into execution'' the powers reserred to the states,
as their legisiatire powers are limited to i}^e foregoing or dele-
gated powers; and in cases concerning which congress hare
no power of legislation* the federal courts have no jurisdietron.
4. The states possess an exdusive legislative power with res-
pect to the powers reserved to them, with the appurtenant
ri|^t of passing all laws, which shall be necessary and proper
lor carrying into execu^n such reserved powers. 5. The
jurisdiction of the state courts is limited to the execution of
the laws vfbich the state governments have a right to pass, la
the junsdiction of the federal courts is limited to ^e laws^
which congress have a right to pass; and neither of these
courts can derive any powers from laws, which the respective
legislatures under which they act have no right to pass.

The remarks, in defence of these propositions, must be more
concise than th^ir importance merits. The. division of delegat-
ed and reserved powers between the federal and state leg^sl^
tures would have been quite nugatory, without a division of
the right of legislation respecting them ; and except for botii
divisions, the principles of representation adopted by the federal
government would never have been approved of. These are
calculated for external objects, or objects common to all the
states, as to which a consentaneous interest and feeling would
prevail among the representatives ; and in the power of taxation
necessarily bestowed on congress, precautions are taken ta
prevent the ill consequences which might be produced by the
absence of those ingredients^ necessary to. secure legislative
impartiality. These precautions shew, that the framers of the
constitution were conscious, that the principles of represenia-
tkm in congress were so defective as to require some safi^ard
beyond the usual confidence in representation, against the
i^se, even of a power of taxation for tiie benefit of the unioBi



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167

Tbe censtUatkm ci^taini no provision wh&tsoe?e( for the
exercise of the rights reserved to the states, nor anj stipalatioa
re&pectiiig it. Can it be imagined, that, having expresd j placed
them without the compass of the compact between the states
it mejuit impliedly to bring them back under the power of
congress, without suly oining any provision for its defective form



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 16 of 34)