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Construction construed, and constitutions vindicated online

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9i repr^seiitatioB, as in the case of taxation ? , Numerous and
iH^portant powers and rights are reserved to the states, to secure
which the members of c<mgress are bound by no sanction* nor
any sympathy. The dave question* and the unlimited right
of taxation reserved to the states, are among tJie number.
Mutual prejudices, separate interests, different circumstances,
and want of local information, all operate against the idea that
the cfmstitudon intended to invest congre^ impliedly with a
power of local and internal legislation. But arguments abound
to prove* that the rqiresentation in congress is devoid of every
principle of representation* in respect to these objects* or the
powers reserved to the states. Load laws» passed by the repre*
sentation in congress, could only openite upon the represen*
tatives of a single state. The sufferers under such laws
could not by election influence the legislature. The qualiica.-*
tions, required by state constituticms in legislative representa-
tives* would be wholly abolished. The necessity of residence
would be superseded. In short, the representatives from Geor*
giftvin congress might legislate as to the locid and internal con-
- cerns of Massachusett's bay. Every relation between consti-
tuents and representatives would be violated by a power of
local or internal legislation in congress. Both in theory and
practice* it would approach near to that detestable virtual repre*
Sentation, under which the British pariiam^ claimed a power
of local and internal legislation over the colonies. Implied*
inferred, and virtual representation* are substantially equiva-
leait No express power was given to congress to legislate in
xeferenee to local or internal objects, c^ to o)]jects reserved to
the states; because that body was not.oiganized liy any repre-
sentative principle in reference to these ol^ects. All the rea^
sons which excluded an express, exclude an implied power of
l^oal and internal legislation. Implication cannot transform
oengcess into a representation of local state rights* when they
«De ilot so reoognksed by the conrtitution* «idare devoid of every'



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168

quality and diaraeter of such a representation. In Iq^slation
tiiey are therefore limited to the delegated powers, in the ^cecuo
tion of which they have im> right to usurp any power of local or
internal legislation, as in the cases of roads and banks, becaase
there is not in that body any species of local representaticm.

The acquisition of powers either not delegated, or inoonsis-
tent with the powers reserved to the states, or incongruous with
the nature of the representation in congress, must all be T^f
different from the execution of the powers bestowed. Congress
may ** make all laws which may be necessary and proper for
carrying into execution the foregoing powers." Suppose the
clause had thus proceeded. « And may also invest thems^Tes
** with other powers by implication, inconsistent with the prind-
^ pies of represmitation." Would this additi<m have altered
its meaning? If so, what does it mean as it stands? If I have
proved that the powers of congress cannot, under colour ef
legislating for the execution of the powers delated, be extend-
ed to powers not delegated and reserved, it follows that the
jurisdiction of the federal courts cannot be extended by a ^-
cies of l^islation which is unconstitutional and vend. The
speoial objects of jurisdiction given to the federal judicial power,
have no connexion with their jurisdiction founded upon the
laws of congress. An act or law of congress, which is unom-
^tutional, is agreed to be no law at all. Suj^iose congress
should pass a law to liberate the slaves of a particular atate, or
to give the land of A to B ? Would the federal courts derive
jurisdictiwi from it, or would the state courts retain their ex*
elusive jurisdiction between the people or citizens of their own
state ? But is there not an appellate jurisdiction Io<^ed in the
federal supreme court, able to reach cases in which the federal
judicial powers have no cniginal jurisdiction ? The reasoning
upon this point seems to be superseded by a complete perspi-
cuity in the constitution. We have seen, that the l^islative
power of congress is limited to the delegated powers, and that
the federal judicial power under the laws of congress only ex-
tend to such as come within the limitation. Such is its original
jurisdiction. The constitution declares, <«that the appellate
jurisdiction of the supreme court," shall extend to the cases
before mmtiomi* The jurisdiction arising under a law of
congress is. that* mth which the argument is concerned. To



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bestow the original jurisdiction, the law must conform to the
delegated powers. Therefore, the appeUate jurisdiction cannot
take cognizance of a case, in which the original jurisdiction has
none. The federal courts deriye no jurisdiction from state
laws. Their jurisdiction, arising from law, is limited to laws
passed by congress in conformity with the delegated powers.
On the contrary, the jurisdiction of the state courts is limited
|p state laws in conformity with the reserved powers. Neither
of these courts has an appellate jurisdiction from the other.
As the federal and state legislatures have a right to letgislate
within their respective mrbits, independently of each other, the
respective judicial powers have a rig^t to execute these inde-
pendent laws, independently also of each other. It is said,
that some supreme power is necessary to prevent collisions. A
saying of the Marquis of Halifax (a man renowned for under-
standing) recorded by Wrangham, fits our case. " The word
" necessary, is miser^ly applied ; it disordereth families and
" overturns governments by being abused." Necessities are,
strictly, things unavoidable. In practice, they may be divided
linto absolute or imaginary. In relation to the principles of
government, tiiey are all erf* the latter class, as governments are
capable of endless modifications. In this case they are only
expedients. The plain question, divested of verbal evolutions,
is, whether congress are invested with the supreme power of
altering or mending the constitution, should they imi^ne it to
be expedient? The same management is used to excite the
doubts, which have been laid hold of to produce a radical change
in our constitution. As necessity is used instead of eafpediency^
collision is used instead of check, whereas in political effect
they are essentially the same. A supreme power able to abolish
collisions, is also able to abolish checks^ and there can be no
checks without collisions. The checks resulting from the coH)r^
dinacy of the lords and commons of England, could not produce
any ^>od, if sl political department existed able to controul those
collisions, and much less, if one of these bodies possessed a su-
premacy over the other* In that country, checks attended with
collisions, are preferred to subordination, under a very imper-
fect supremacy, hardly acknowledged or capable of actings
called publick opinion. Here, also, we have preferred checks
and collisions, to a dictatorship of one departme&t, under the
W



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iii|Nremaey of tiie people* fdlj acknowledged, and acting with*
out difficulty. If the inconvenience of collisions between co«
ordinate political departments begets a necessity for the supre**
macj of one« and this necessity will jastjfy its assumption, the
scheme of checks and balances is entirely chimerical, and a
political fabrick built upon that theory must fall. Necessity,
inference and expediency never fail to beget an endless succes-
mve progeny. Roads are'necessary in war ; therefore congress
ttay lq;islate locally concerning roads. Victuals, manufactures*
and a certain state of national manners, are more necessary in
war ; ^erefore congress may legislate locally, concerning agri-^
culture, manufactures and manners. The favour of the Deity ia
more necessary than either; therefore congress may provide
salaries for priests of all denominations, in order to obtain it,
without infringing the constitutional prohibition against an estn*
Uishment; or they may incorporate sects, and exempt thena
from taxation. Roads are more necessary for collecting taxes
than even banks. Taverns are very necessary or convenient
for the officers of the army, congress themselves, the convey-
ance of the mail, and the accomodation of judges. But horses
are undoubtedly more necessary for the conveyance of the mail
and for war, than roads, which may be as convenient to assail-
ants as defenders ; and therefore the principle of an implied
power of le^slation, will certidnly invest congress with a legis-
lative power over horses. In short, this mode of construction
<;ompletely establishes the position, that congress may pass any
internal law whatsoever in relation to things, because there is
nothing with which, war, commerce and taxation may not be
closely or remote\y connected ; and the constitution does not
contain any prohibited degrees of consanguinity. The personal
departments established by the state constitutions seem indeed
to be without the scope of this mode of construction, which
can only strip them of their whole wardrobe of rights, and
reduce them to a sort of naked political skeletons.

I see no end to the power of necessity, armed with supremacy.
}t seems already to have carried us nearly a thousand years
backwards in the science of political justice. In 846, Ethel-
wolf established tytiies, and exempted the property of the
clergy from taxation. Bankers tire said to be useful and con-
tement to the government. The established clergy are still



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171

thought go by the English government Governments and na-
tions ver J often differ in opinion as to conveniences.

The argument of collision would reach a multitude of cases*
As an instance. It has been judicially and practically esta-
blished^ that both congress and the state governments have a
right to tax carriages. Suppose the states should impose a tax
on them amounting to a prohibition. Would this state law
Ibe void, because it might defeat the law of congress? Collisions
between concurrent and co-ordinate powers, are natural and
certain, and must have been foreseen by the framers of the con-
stitution. Moderation and the people, are the only arbiters they
thought safe or necessary. But a conflict between a positive
and an implied power, is the question we are considering. Can
the latter abrogate the former under any pretext ivhatsoever?

Let us consider the subject in this new light with some atten-
tion. The natural rights qf nations, in respect to each other»
are more evident, better understood, and more universally
recognized, than the rights of individual men ; because a nation
can more conveniently exist independently of other nations,
than one man can of other men. Accordingly they are acknow-
ledged by all political writers to ccmfer on nations the character
(a£ individuality, and the utmost degree of independence, di
which human nature is susceptible. The United States, whilst
provinces, were imperfect nations. Under charters, they ob-
tained and exercised a separate and distinct national cha-
racter, in relation to intemal affairs, yielding to Great Britain
the management of their external national rights. By the revo-
lution, each state became a perfect individual nation, possessed
of all the natural rights of nations. As perfect nations, they
have entered into two confederations, both influenced by the
principles to which as colonies they were willing to have con-
formed in a union with Britain. By these confederations, they
relinquished several national rights, and retained all not relin-
quished« As to their natural rights retained, they remain per-
fect nations; or in other words, their national individuality
and independence of each other, respecting these r%hts, are
unchanged. A conveyance of one portion of an estate, by
metes and bounds, does not impair the title to the portion not
conveyed, especially if attended with a positive reservation.
Had they entered into a similar unipn with Bdtain, th^ir inter-



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17t

nal and local rights must have been specified, as not having
been settled; and they would have been justified in asserting
and maintaining the specifications ag-^nst any implications, for
"which an assumed British supremacy, or the appellate juris-
diction of the king in council might have contended. Bui, n<>
specification of the state rights reserved was necessaiy in
establishing our union, because these rights were not conce-
ded, as being national and antecedent to tiie compact Being
natural and national rights, and also never delegated, but re-
served, they are held by the states in their original character,
as perfect national rights. This amounts to a plain specification
of the powers of the states, and a positive prohibition bearing
upon those of congress. The conflict, therefore, is not between
implication and implication, but between specification and im-
plication. Ought tiie positive stipulations of contracts to be
supplanted by doubtful conjectures ? " Congress shall have
power to make all laws which shall be necessary and proper
for carrying into execution the delegated powers," says the con-
stitution ; and also, subjoins the implication, ^ power to make
all laws necessary and proper to contract the powers reserved
to the states." The chief forces on the two sides of the ques-
tion are thus opposed. The states are armed with their original
national rights; congress with conventional rights. The states
have a natural right to make all necessary and proper laws
within their national powers reserved ; congress aright of legis-
lation limited to delegated powers. Implied powers may be as
copiously extracted from the rights of the states, as from those
of congress ; but if their absolute and conventional powers are
independent of each other, their powers by implication must
also be liable to the same limitation. If congress cannot directly
contract the state power of taxation, being a national right,
ihey cannot have an implied power to do it indirectly. But if
congress can by implication assume a power of passing any
local or internal law beyond the specifications of the constitution^
it must be admitted that they have a right to undertake the
care ofstate prosperity in relation to agriculture, manufactures,
private property, corporations, roads and canals ; as it is impos-
sible to find a justification for one case, which will not extend to
the others. Suppose the clashing laid hold of, for introducing
a catalogue of implied powers» under the supremacy of the



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very power intended to be checked, was not between ^cifi*
cation and implication^ but between specification and specifi-
cation. This supposition places the subject upon much stronger
ground in favour of the doctrine of implied powers, in congress
onlj (forgetting the equal right of the states to them,) than hat
been yet taken. Congress have no specified power to create a
corporation, but thej have one to impose a tax on stills and
whiskey. It will not be denied that tiie states have a concur-
rent power to tax the same objects. Suppose they should im-
pose on them a tax amounting to a prohibition. It would defeat
a law passed by congress for taxing them. This would be a
conflict between specification and specification, or betw^n two
powers, undoubtedly residing in the respective governments.
Could the federal court defeat the state law, upon the ground
«< that the states have no right by taxation or otherwise, to
** retard, impede, burden, or in any manner controul the opera-
«< tions of the constitutional laws enacted by congress," as the
.court has declared ? In this case the law of congress would be
constitutional, and the argument deducible from it surrenders
4he objection arising from the unconstitutionality of the bank
law. If the question be answered in the negative, it follows^
that if no power resides in congress or the federal court to abro-
gate a constitutional state law, thus impeding and controuling
a constitutional law of congress, ihe argument is insufficient in
every other similar case. And if I am not mistaken in the
reason of its insufficiency, neither the constitutioruility of the
law passed by congress, nor its impediment nor controul by the
«tate law, ought to have any weight upon the sul^ect. l^his
reasoning establishes an essential conclusion, towards which all
my arguments have been directed. It is this. Powers are
delegated or reserved both to the state and federal governments
to make laws. Under the concurrent power of taxation, they
may each pass a law, both of which may be constitutional, and
yet these laws may clash with, or impede ^ach other. The
same thing may happen in many other cases. For this clashii^
the constitution makes no provisimi. The right of passing con-
stitutional laws w))ich clash with the constitutional laws of con-
gress, is not prohibited to the states ; nor is the right of passing
constitutional laws, which may clash with the constitutional
laws of th^e states, prohibited to congress; because the evil of



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174

clashiog, bftianced, er checked powers, appeared to its framera,
to be inconsiderable, compared with that of an absolute sapre«
mac J. I have called the first an eril, in a spirit of concession,
bat I think it the onlj secnritjfor the whole catalogue of social
blessings ; and not to be counterpoised bj a concentrated supre*
nacj, which would be obviously a step towards consolidation
and despotism. As the constitution has not prorided for the
clashing of constitutional laws, it may safely be demanded, by
what authority either the state or federal legislative or judicial
power, can abrogate one constitutional law because it clashes
with another? After ttke peojde have invested two legislatures
with the power of passing laws within specified orbits, who but
themselves can circumscribe those orbits ? If the constitutional
rights and powers, established by the people between legislative,
executive and Judicial departments, and between state and fede-
ral departments, do in the language of the court retard, impede,
hurden or controul each other, where does the authority lie for
removing the inconvenience, admittbg it to be one ; in the people
or in an implied supremacy of one of these departments, in*
tended by the people to be controuled ? If in the latter, the con-
stitution is exposed to be altered by laws or adjudications with*
out restraint If in the former, then it can never be a question
before any judicial department, whether a law is void because
it retards, impedes, burdens or controuls another law; and the
only chaste question is, whether or not the obstructing law is
itself constitutional. Supposing then the bank law to be con^
stitutional, and also that the national right of the states to
impose internal taxes is not surrendered, and of course constitu-
tional also, neither congress nor their courts can modify this
state power without invading the sovereignty of the people.

In some of the West India islands, as I have heard, the
power of an executor extends to all the testator's estate, real
and personal ; and to such an extent has legal chicanery been
carried, that he can easily cheat the devisees out of the whole.
A rich father on his death bed informed an only son, tiiat he had
^ven a moderate legacy to one of his friends and appointed him
his executor, but that he had devised to him (the son) the whole
residue of his estate. The son, thanking his father for his good
intentions, but recollecting the sophistry so successfolly prac-
tised on behalf of executors, besought him to alter the will, to



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ITS

pvt him the fimall specifiek legacj with th« a^poiatmeat of
executor, and to make his friend residuary legatee. The federal
govemment is the specifick» and the states the residuary legatee*
If the former can transfer to itself such pcnrtions of the residu-
ary estate as it pleases, ^ther by its own will, or by judges
appointed, paid and remoyable by itself, the fate of tiie lal^
must be that of a West India residuary l^atee. I know of
nothing, equivalent to this West India precedent, more in poiat
for construing our constitution^ so as to transfer the residaary
estate to the special l^tee. And yet even this precedent
does not go far enough. The legal power of the executor ex*
tended to the whole estate, whereas the constttutional power of
congress is prohibited from touching the powers resenred. Much
less ingenuity was therefore necessary to hold a legal posset*
sion. contrary to justice, than to acquire possession contrary ta
law. The executorial power of tiiis country is more like ^btt
power of congress. It does not extend to real estate. Whea
an executor or administrator here shall deprive the heirs or de-
visees of their lands, we ghall have a better precedent for esta-
blishing the right of congress or the federal courts, to depiva
the states, or rather the people, of their natural, naticmal and
reserved rights. These are truly their real estate, far surpas-
sing in value the administration of external concerns.

The court, probably witiiout intending it, seem to me ta
have advanced a position which folly justifies the ground I
have taken. They say, ** let the end be legitimate, let it be with-
** in the scope ^f the constUwHen, and all means which are appro-
<*priate, which are plauily adapted to that end, which are not
«* prohHnted, but consist with the letter and spirii of the oonstt-
<<tution, are con^tutional." It is plainly intimated in tMa
extract, that whatever is constitutional, is valid ; and e( course
eonceded, that in a conflict between two constitutional acts,
neith^ can have any sovereignty over the oiiier. The court
indeed m advancing this doctrine, seems only to have turned
its eye towards tiie constitutionality of the acts of coi^rest,
overlooking entirely the constitutionality rf tite acts of ihid
atate governments. But if constitutionaHty bestows validity,
and if the state governments, and other political departments
can perform consti^tkmal acts, then the validity of thes^ acts
rests up<m.theisame foandation, with tiie validity of the a^ of



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176

eOBgress. Bj'^eiids'' the court seems to understand expressed
powers, and bj ** means" the execution of those expressed
powers. What then are the powers expressed ? Undoubtedl j,
those delegated and those resenred. Unless the reservation be
an expression of powers, it can mean nothing. What are these
powers P Thejr can be none others, but the national rights not
surrendered. Taxation is one of these : or rather the support
of the state governments by revenue maj be cidled the end, and
taxation the means. This end is legitimate^ toiihin the scope
of theconstitutian; the means are appropriate and platnly
adapted to the end, not prohibited and consist with the spirit
and letter of the constitution*

The constitution has involved ends and means, in such a
manner, as to prove that it never intended that the latter should
beget anj ends inconustent with its great principle, express
letter, and obvious spirit ; all uniting to estabbsh a line be-
tween external and internal powers. The power of declar-
ing war is an end for which the federal government was
instituted, and nothing could be more necessary for carry-
ing this end into execution, than to raise armies, support them»
and to make rules for their government. Yet these tneans are
not left to be implied as necessary for the execution of the end.
The reason I take to be this. Wherever the means, such aa
taxation for the support of armies, and a code of military laws*
would trench upon or circumscribe the national rights inherent
in the states, they are expressed and constituted into a dele-
gated power. If such was the reascm for specifying means of
this character, so necessary in war, it follows that no means
of the same character, namely, such as subtract from the na-
tional state rights, were intended to be inferred from necessitg*

But the court, apparently wanting confidence in the words
necessary and proper, as being under an expressed restriction^
and subjected to a comparison with all the other parts of this
instrument, in which they are used ; in order to determine their



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 17 of 34)