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John Taylor.

Construction construed, and constitutions vindicated online

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his losses, at the expense of other individuals. He will endea-
,.'Vourto enhance the price of his own manufactures, whether
agricultural, mechanical, commercial, scientifick or profession-
al, in order to teing back exchanges from the false measure of
- legal compulsion, to the true measure of free will. If these
other occupations could succeed in this attempt against the occu*
pati<m obtaining the bounty by means of the false measure, the
bounty or privilege would become abortive, and exchwges
would be honestly made, measure for measure, as they were
previously to the cmnpulsion. In this event, the experiment *
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would only have the effect of disordering for a lime the onlj
fair principle of social intercourse, and of exciting new arts for
mutual imposition. If these other occupations cannot succeed in
reinstating the golden rule of free will in the exchanges of la*
bour» they will endeavour, like starving men, to prej upon each
other; and the oppression of the bounty will fall heavily upon
them a second time, by producing fraud jand extortion among
themselves. Those occupations, which cannot find at home ob*
jects on which to operate, to indemnify themselves for the ex-
tortions of the occupation which is privileged to mete in a
smaller measure, than they are willing to receive by, cannot be
reimbursed. The s^cultural and commercial occupations
are in this situation. Neither of these can for many years ^nd
objects at home for. exchanges, sufficient to reinstate the free-
dom of intercourse ; and neither can indemnify itself for the
coerced contributions to the domestic privileged sect, at the ex-
penseof foreign nations, because all exchanges between them
and these nations must still be made and measured by free
will and mutual computation, whilst the extortions they will suf-
fer from the false legal mode of exchanges at home will remain*
The agricultural class may indeed retain and employ its capi-
tal, subject to the contribution, but a considerable, poiiion of
the mercantile capital will be thrown out of employment f and
its owners must suffer miseries and losses from leaving a busi-
ness in which they are skilful, for one of which they are igno*
rant. They will be emigrants from a highly cultivated to an
unexplored country. Though the scientifick classes may make
a few reprisals from the endowed class, and many inroads for
indemnification upon the mercantile and agricultural classes^
yet it will be incomplete, because they must participate of the
loss sustained by their best custpmers. The valuable classes of
ship builders, owners and navigators, subsisting entirdy upon
the capital of the mercantile and agricultural classes, must in-
evitably lose a portion of employment equivalent to the losses of
their patrons or customers, without the smallest chance of reim-
bursement* These classes sell neither bread, meat, phyaick
nor law, and their wages will be diminished by a diminution of
employment Such will be the effect until a sufficient number
of these maritime manufacturers are starved, or thrown out of
employment, to create a demand for the labour of the remnant*



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The great lu^ment, in favour of compelling all other occu- |
pations to paj double prices to that which is very incorrectly
called, exclusively, the manufacturing occupation, is, that the
iniposition will be temporary ; for that when it has coerced
an emigration from other occupations into this, to stock the
market sufficiently with manufactures, the fraudulent measure
or compulsory price will disappear, and the fair measure, or free
will in computation, will be re-instated ; dnd an anticipation
of a recovery of the principle for which I am contending, is said
to be better than its actual enjoyment. No proverb has Mid,
tiiat a bird in the bush is worth as much, as one in the hand.
This argument, containing the essential and solitary promise, by
which a protecting-duty policy is defended, is infinitely more fal-
lacious than any I have ever met with, by which privileged sects
have heretofore dazzled reason, and defrauded ignorance. These
fuHgi have usually asserted, that their monopolies and exclusive
privileges were good, and proper for endurance. But this ad-
mits, that the privilege and monopoly it is striving to obtain
bad ; by asseiing that it ought to be granted, because it will
in time cease to operate partially and unjustly upon the other
occupations of society. Let tts, says its great argument, relin-
quish the good principle of exchanging labour by tiie measure
of free will, and undertake a journey, long or short, upon the
bad principle of forcing all other occupations to give two mea-
sures for (me, to a certain detachment of manufacturers, that we
may get back to the same good principle from which we set
out. What should we think of the general of a vast army,
encamped on firm ground, who should march for many years
over bogs and marshes, in order to get back to the same ground ?
If he should even accomplish a project so profound, would
luB getting back resuscitate or cure the soldiers who had died
or been cripj^led by the way? A journey through exclusive
privileges, in order to get back to the principles of social liberty,
is even more hopeless than the march of an army round the
world, in order to get back to a safe station ; for this latter jour-
ney m^ht possibly have an end. But where is the end of the world
of exclusive privileges? What man can hope to live to the end
of a journey thi*ough its protecting-duty region onlyf If he
should survive the hardships and privations of this long and
perilous journey, could he be 90 infatuated as to expect, that



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212

^ no new exclusive privileges vrill be invented by the way ? Will

avarice be glutted and put to sleep by its success in tbis m-
stance ; or will that success b^t a new progeny, and cause tlie
hopes of our traveller from good principles^ to get back to the
same good principles, by the road of bad princi[des, to be noie
extravagant than those of a turnspit dog, which expects Aat
every step will be his last, and that then he wUl eat the meat
he is roasting ? But why do I argue this point, when he who
gave to man the capacities of free will and lidMmring; hath
8aid,^«<with what measure you mete, it shall be mei»ured
to you again ?"
A Let us, therefore, proceed to the second point, namely,

; whether the federal government has a right to regulate the
wealth and poverty of individuals, or of corporations, by pro*
tecting duties and bounties. And if it has, mark the conse-
quence ! Protecting duties for ^le encouragement or coercion
of manufactures are within the sphere of acHon of congress ; Ike
supremacy of congress over subordinate governments entities it
to remove alt obstacles to its measures within that sphere;
therefore, the state governments cannot tax internal nuinafao
tures, because it would obstruct the intention of congress to en-
courage them by bounties. Here is a new case, displaying tl^
extent of the principles asserted in the bank decision, and
evincing that their power to enable congress gradually to strip
the states of the right of taxation is hot ascertained, if accmrd-
ing to that decision, it admits of, any limitation* I hope the
reader, in considering this important point, will en^avour to
recollect the observations previously made, in relation to sove-
reignty, supremacy, and our distinction between local imd ex-
ternal powers, which caused us to go to war with England^
and dictated mlich of our former and exie^g confederatioiili
He is not to determine, whether congress could create a bank,
or grant protecting-duty bounties, or gratuitoutsly bestow the
property of the people upon revolutionary sddiers, as if these
were special and particular cases ; but, whether it has an uali-
mited right to establish monopolies, grant exclusive privil^es to
persons, exempt capital or wealth from state taxation, and give
away the property of the people in any amount to whwnsdever
it pleases. Such are the general eonclusions arising from these
special cases^ which seem to me to deserve the natmsttl
attention.



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^ ' mie truth of the fi^ewing {M-epoeition, depends upon the in-
tention of the federal ccmstitution. Congress is only invested
with Z«ni^ powers over persons and things, for the purpose of
execnting the defined powers delegated to it The 8th section
ef the first article of the constitution contains a list of these
defined powers, amounting to seventeen ; and the eighteenth
clause of tiie section empowers congress to make all laws ne-
^ceasary and proper for executing the seventeen defined powers
delegated. ^ Thus, 4 correlative power of acting upon persons
and ttu^s is attached fjo each defined power delegated, as a
necessary and proper means for the execution of that power ;
and not as a means of obtaining power not delegated, or of des-
troying or dimiinshing any power reserved to the states.

The first power ^ven to congress is that of taxation, to pro-
^Tide for the common defence and general welfare of the United
JSiates. Under this power, congress can act upon persons and
.things, so far as is necessary and proper to collect these taxes.
It has however been often asserted, that the power given to
congress to layta^es is amplified by the wwds *' to provide for
the coDimon defence and general welfare of (he United States^^
This construction^ is obviously erroneous. These words refer
to the destination of the taxes, and are only |i reason for the
power of taxation. If they convey any power over persons and
things, internally or externally, they convey all power over all
-objects; and under a construction of the latitude contended
foe the power of taxation, and all the subsequent powers bes-
towed in the same section, would have been quite superfluous.

^ For, if these words comprise a grant of power to congress, the
power is unlimited, and includes both all the specified powers,
and also every other power, which in their opinion may be ne-
'cessary and proper to provide for the common defence and
, g^eral welfiure. They would suffice to swallow up the treaty-
' inakmg power, as well as the other specifications of the consti*
ttttion; bat, if they, do not suffice to swallow up all the specific

^ cations and restrictions of the constitution, they are not suffi-
cient to swallow up any one. Of course, they cannot absorb any
pmiion of the local or internal powers, specially reserved to the
states, among which that of making roads is undoubtedly one.
But, suppose we detach the phrase " to provide for the com-
mon defence ai»d general weUare of the United States^^ from



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dl4

the power of taxation, and consider it as an isolated and dw-
tinct grant of power ; it will then be necessary to ascertain
whose defence and welfare was to be provided for; the defence
and welfare of the individuals composing the states, or of the
political individuals called states. I think the letter and tenoar
of the constitution correspond upon this point with perfect
perspicuity. " The United States" are specified as the olgects
or individuals, whose common defence and general welfare was
to be provided for. In the first clause of the constitati<m the>
same phrase is used : '* The people of the United States to pro-
** vide for the common defence and promote the general wel-
*• fare establish this constitution /or the United States oJJkne-
~ ricaJ^^ It was not, therefore, a constitution for the government
of persons or things generally existing in these United States,
but for the government of the states themselves, and in order
to promote their common defence and general welfiu*e. The.
words common and general refer to the objects or political
beings, whose defence and wel^re was to be provided for» as
being in a state of union. And as no state of union or any spe-
cies of social compact existed among the persons composing
the states, inclusively, these words cannot be made to refer to
them. They therefore restrain the power of congress to the
defence and'welfare of the states themselves, instead of enlarg-
ing it to include the defence and welfare of private persons.

The whole tenour of the constitution corresponds with this *
literal construction. All the powers given to congress point 7^
to the defence and welfare of United States, and those neces-
sary for the defence and welfare of private individuals are
reserved to the states themselves. If this construction be cor«
rect, it clearly follows, that congress can only impose taxes,
constitutionally, for the defence and welfare of the states^ and
that an imposition of taxes for the purpose of enriching 01^
state, one interest, or one individual, at the expense of another
state, another interest, or another individual, is as unconstitu-
tional, as it is adverse to the freedom and fairness of exchanges.
In fact, this declaratory end is a complete key to the intention
of the constitution, and locks out congress, i^ c<»yunction with
the reservation to the states, from all constructive powers over
persons and things, of a local and personal nature, especially
the power of taxing either to foster political fungi, or to grant -
bounties or exclusive privileges.



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215

Let n% however, look farther into the constitution, to see if
it affords other proofs of the correctness of the construction
for which I contend. Its terms, in creating the departments
of the federal government, are the same with those used to
define its design. " The house of representatives shall consist
** of members chosen by the people of the several states. Repre-
'< sentatives and direct taxes shall be apportioned among the
** several states. Until the enumeration, the state ef ^em
'* Hampshire shall he entitled to choose three representatives*
" When vacancies happen in the representation from any state.
'< President of the United States. Senate of the United States.
** He^se of representatives of the United States. Jind the cou'
** gress of the United States.^^ Now, can anj fair reasoner con-
tend, that the states are not here repeatedly recognized, as the
authors of the federal government, and the federal government
as a government of the states, and not of the people ? Those
who made it are its constituents, and over these constituents
its powers are delated. The states are expressly charac-
terized as individual political beings, and every department of
the fedetnl government, even the house of representatives, is
positively asserted to be the representative, agent or trustee of
the states, and none are even insinuated to be the representative,
agent or trustee of the people, except as comprised by the term
" states." Congress is therefore a representation of those inte-
rests only common to its constituents, the states. But the fra-
mers of the constitution, lest this representation should usurp
powers over private persons and internal concerns, carefully
defined such common interests of these constituents, as were
intended to be entrusted to their representative; and the ques-.
tion is» wheth^ the doctrine of means to effect ends, can bring
under the power of a representation of states, persons and
things, neither its constituents, nor subjected to its power.
. !Let us look at a sample of this question;
Powers bttUmed by ths comHtuHon. Potvert claimed at means.
Taxation, Incorporating banks.

War, Making roads.

Appropriating money. Giving it away.
Regulating trade. Granting monopolies.

Admitting new states. Prescribing state constitutions.



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S15

In one column, we find olyects of general coaceiEB to the
ftates ; in the other, said to be their legitimate progeny, <ib|ects
merely personal or local. Now I contend, that the progeny of
the parent powers ought to be sni generis ; and that a progenj
of means, which violate the powers resenred to the states, under
the influence of a different species of lust, from that which ex-
cited the heathen gods, is no less spurious, than the frnk of
their amours.

Let us deduce a few arguments from the following -positioD.
No powers, delegated to congress, are represented in the state
goremments ; and no pcmrers resenred to the states, are repre-
sented in congress. If this be true, it evidently fottows, that
the design of the federal constitution was to establish two c<mL«-
munities, assigning to each a distinct representation, and enr
trusting each with distinct powers and duties, so modelled as
to preserve the common interest, fellow feeling and symp^thjt;
which constitute the essence of a true representation. Con-
gress was entrusted with powers concerning t^ common de-
fence and general welfare of the communis of states, which it
represents ; and the state governments, witii the common dev
fence and general welfare of the communities of individuds
represented by them. If tlie latter should exercise powers
within the sphere of the former, under the pretexts that It
would advance the welfare of the community of s^tes con^
tuting the union, and were means which might be inf(|rred from
the reserved powers, they would be acting for a communttjr
which they do not represent; and if congress should exercise
any powers within the state spheres, under the same pret^ts,
it would in like manner be acting for a communkj which k
does not represent. Now, as it is not pretended that either
congress or the state governments can violate the principles of
representation, by directly assuming powers as»gned to the
other, the only question is, whether either can do it indirectly,
by the instrumentality of means. It seems to me, tiiat both
these governments must as well be the representative of means,
as of powers, and this consideration is as much a resti^cticm upon
the former, as upon the latter. Means ought to be emUenuitical
of the powers they commemorate, and the converting of them
into powers which penetrate into the territories, either (tf rights
delegated or rights reserved, is a specie^ of political taransub*



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«bimtlatkM^, Mki^riBSSiiig the eMtotial principles 6f reprei^ts-
tiob. They are emanations i^eiii the powers delegated to con-
gress or reserved to the states; but th<toe emanations must
surely be limited and restricted bjr the same principles which
limit atid restrict the powers themseWes. The primary and
obrious intention of the fSederal Consfitation was, to inrest con-
fess with such powers only, as equally affected the membet*
df the community called the union; and to leave to the state
gtyv^mtiients, all those powers alfeoting the members of the
community called the states. In both cases, this was necessary
to sustain the principles of representation, and in neither call
fhis primary and obvious intention^ be evaded by any meant^
witiioUt destroying both the positive division of powers, and
file moral principle of representation. A legislation of eitlier of
ttese cotiimunities within the territory assigned to the other,
ift^ equivalent to a k^stlation by one independent nation over
lmothei^« I now ask the reader, if numepolies, exclusive privi^
leges, or bounties to persons ; or local improvementSi such at
tiottds Or cumls, and an encouragement of agriculture or manu*
fectures ; are represented in congress ; and if congress in lega^
lating upon such subjects, can possiMy be invigorated by tt6
^Oftintumty of interests^ which ought to pervade that body in
the dfsdiarge of its federal functions P Are not the recited
fon)6tions plainly local and personal, and would they not be ex-
ei*dsed in congress by feelings and motives, entirely different
kmii the common interest, fellow feeling and sympathy, essen*
fial to rej^esentation ?

In the Federalist, pages 173, 176 and 177, Mr. Hamilton!
who was neither disposed to diminish the powers of congresir,
tt^ to extend tiiose of the states, has delivered the foUoMrii^
eonteniporary construction of the bonstitution. <* !I%e eticou^
^ tttgefAieM of agricuUwre and maimtfaeture$ is an appendage
^ 4^f ihe dtmeitick police cf ike states* Exorbitant duties on
<*b«iported articles tend to render other classes of the com^^
^ muafty, trilmtatif, in an improper degree, to the manufactnr •
" ing c^ses. They Would be attended vnth tnequaliit/, be*
''tween the manufactinring and non-manufacturing states."
What a wkittisical Mng is party politicks ! This gentieman
assisted ift framing the federal constitution^ . He knew that
tbs agricidtural and manu&cturii^ btterests were not repre-
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tented in congreiff and that a patronage of either by thailM>dj»
would therefore be an usurpation ; and having stated that they
appertained to the s^tes, he suggests the tyrannical effect of
high duties, in noJung one sti^ trUnUartf to another. Mr*
Hamilton had a clear yiew of the subject. As the states and
not individuals were the cimstituents of congress, he saw that
it could not legislate concerning the property, the persons, or
the rights of individuals, of a local or internal nature ; because
in such cases the relation necessary to bestow a right of legiis-
lation, between constituent and representative, did not exist.
He saw that the absence of this relationship would, as it always
does, make some people tributary to others. He saw that the
care of agriculture and manu£Eictures equally appertained te
the states. And he knew that a right to encourage one involved
9Lr right to discourage the other; and that, however modest and
unassuming the first word mq;ht appear, it contained as much
internal tyrannical power, as any degree of ambition could
wish for.
But, may not the power of encouraging and discouragmg both
' agriculture and manufactures, be common to congress and the
state jgovernments ? This is a doubt which deserves great atten*
tion, and will refiect much light upon the subject. We have
not forgotten the assertion in the decision of the bank question*
^ that congress being elected by and representing all" may be
trusted with internal powers, and therefore tit behooves us te
look into the constitution itself, to discover how far this is the
ease. When we do so, we at once discern that the elective and
representative qualities of congress are not considered in the
least degree as vehicles of powers ; but that defined and limib-
ed powers are delegated, adapted to the nature of its represen-
tative character, and of its constituents. The powers delegated
are sttch» as would act up<m the common interest (tf its con*'
stituents, and not such as would foster local partialities. And
there is no concurrency of powers between the federal and
state governments, except in the case of taxation; from whence
it is fair to infer that none other was intended to exist* It
will not be denied, that a right to' encourage agriculture and
manufactures, and to make roads, was possessed by the states
previously to die union ; and that, as it is reserved by the consti*
ttttion, it still renMiips. The ccmcurrent power estabUsh^ from



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Becessitj in the case of taxation seems to exclude the idea of
tacit concnrreiit powers. At least, these cannot be inferred from
the representatiye nature of congress, without endowinf; that
bod J witiv a concurrent power as to all the other powers re-
served to the states ; nor without exploding the reasoning which
goes to prove that coi^ress is the representative of federal, and
not of personal or local interests. The meaning of the word
** reserved" must also be overlooked. A has no right to par**
ticipate in that which is reserved to B, and if ocmgress be ex^
eluded from the exerd»e of the powers reserved to the states^
and those encouraging agriculture and manufkcturea are among
the powers reservedi its right to exercise either power cannot
be established.

But, tiiese powers have been claimed as an appendage of that
to ** regulate commerce,'^ and as the power of taxation has been
made to beget a power of creating corporations and granting
exclusive privileges to perwms and property, so this power to
regulate commerce is supposed to contain both the latter pow«*,
and also that of inflicting a tax upon all other mterests to en-
ricb one. This art of making external and federal powers
teget local and internal powers, resembles I suppose the ioge-
flious process by which ]ngeon-br«eders are «aid to be able to
furnish birds of any cdU>ur; but it ia not yet pu^ed quite as



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 21 of 34)