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John Taylor.

Construction construed, and constitutions vindicated online

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the power of regulating commerce and appropriating publick
money ; and the power of making roads and canals, from Ihe
power of declaring war. To deduce the powers of sovereignty
from the delegated powers, the greater powers from the lesser^
undefined and unlimited powers from defined and limited ;
is an evident inversion of reasoning, which terminates in the I
conclusion, that the limited powiers substituted for the unH-
mited powers of sovereignty, supposed to have been abolished, ;
fnrnish inferences which revive these same unlimited powers
€i sovereignty.

But in the case of war, tlus mode of reasmung was not
foreseen. When two nations are at war, a third may subject
itself to a legitimate attack from either, by certain actions ;^
yet even in this case, which calls for a prompt decision, the
constitution pays no regard to the idea of a spherical sovereign-
ty ; and disregarding the language of the laws of nations,
assigns the power, as in every other case where a declaration of
war may be necessary, to a department, not as being sovereign,
but as being a trustee of the sova'eign power, lliis trustee
lllone possesses a right to involve the United States in war ;
ilnd no other department, nor any individual, has a better right
to do so, than a constable has to bring the same calamity upon
England. As the laws of nations cannot deprive congress of
Any power with which it is invested by the constitution, so they
cannot invest congress or any other department, with any
power not bestowed by the constitution. If the laws of nations
could bestow any powers under our system, there would be
great difficulty in ascertaining the department which should re-
ceive them. They contemplate the powers of declaring war
amd making peace, as residing in an executive department;
but the constitution divides them, and does not intrust the
president with either. Which then of these three departments
ri:iall receive the new powers, drawn from the law of nations ?
As to these,' the constitution is silent, except that so far from
recognizing any sovereignty in either, it rejects the idea entire*
ly by a division of powers allotted to sovereignty by the lavrs i



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of natians. As these Uwt cuiBot find a ftoveraig&fy to r^cem
their bounty, U it to be bestowed according to their recognitiao
rf execntiTe power as the recipient ; or can there be any t©.
ciptent at all under ihe fedfcal constitution, which only creates
department with limited powers, and does not create any spe-
cies df sorereignty ? If congress does receive the powers
of soTereignty from the laws of nations, then it mity create
corporations, because being inTested with soverrignty, these
laws hare an object to act upon, and to endow with powers;
b«^ if these laws cannot give soverdgnty to congress, they can
j^Te it nothii^. Upon this hinge the rig^t of creating corpo-
rations turns, as belonging to the powers of sovereignty. If
the power of creating corporations results from a paramount
spherical sovereignty, all other powers allowed to sovereignty
by the laws of nations fdlow it, and henceforward, conadenng
^e liberaliiy of the laws of nitons to sovereignty, the dif&culty
will not be» to discover what powers congress has, but what it
has not The question, therefore, is, whether these laws of
nations or our constitutions have delegated powers to our po-
litical departments* If it should be decided in favour of the
constitutions, sovereignty and the laws of natians united can*
not create corporations, nor confer any power whatsoever ;
if agamst them, these allies can convey every other power,
as well as one to create corporations.

It was wholly unnecessary to the advocates of a power in
congress to mdce corporations* roads and canals, to append
the two latter among the wide spreading branches of tiie w v-
making power, if a paramount spherical power to remove qbsta-
cles» by setting aside the state power of internal taxation, exist-
ed; because this species of sovereignty would as easily be
B(iade to reach internal things, as persons: but still there is
much ingenuity in the habit of allowing limitations to this pro-
lifick source of power, whenever one is drawn from it, because
tins language is less tdarming to the nation, than an undisguised
claim of power in virtue of spherical sovereignty, construed' by
the laws of nations. It is agreed, that the powers oi coogjceaa^
inferred from the paramount sovereign power of declarii^ war,
are Umited to things useful in war, and only roads md canals
are a3 yet specified as amoi^ these useful tilings* Now muk
the united effect of the concession, and its exanqple ; and it



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ingteiflj ifipeiHrB^ liiftt titey coy«r idl tiie gitmiri which the
most ftbidvie soTereign^j caa eocapy, er at least enough te
eafiify the atmast greecSttess for power. Men, food, agricttl*
tare, naimFaetiiir^, clothes, Wsee* kon, leather, powder, lead,
iiqwnrt, and many other things, are more usefal in war than
teads^nd canals ; and are net ef a more locd, and interwd na»
isake. It would be ndicnloiis to say, that a flearirinng state rf
sgrlenlture would be a less tsefiil preparati<m for war, than a
powtat In congress to make roads and canals* If the powers of
isongress are impliedly ext^uted to means nsefal in war, they
fnast embrace snch as are important, as well as those which are
trifling. Insignificant as these roads and canals are in them<»
selves, they cover a boundless political space. They carry tilke
powers of congress, to be exerted according to its own will, to
«very thing at least, equally nsefiil in war. By this doctrine,
^congress may create c(»rp(N:tttions to provide £9od, d^thes,
horses, iron, powder, lead, liqnora, and even men for war; oit
^ manage agricultnre and mannfactnres ; for, these are un-
dottbtedly as convenient and necessary for war, as banks are
for taxation. The doctrine by whieh this constmetion is assert-
ed, collected and condensed, is this : *<The federal coAstittttion
" has not prohMted koflted powers ; whatever is nseftil, necea-
•*^6ixy or conveni^t in the execution of the delegated powers,
^coDstitntes an implied power ; the receive of the expressed
^ power is the srte judge of the extent of the implied power,
^in ^vo cases only ; those ef congress and the supreme court
««of the Unit^ States; congress in i^irtue of a paramount
«* spherical sovereignty may remove evety obstacle to its action
f^frmn sabc^tnate spheres ; the states are subordinate spheres,
ffand congress txmj restrict their r%ht of intemd taxation, if
^' it obstructs the execution 6f any implied power in the opinicm
^'of ikt fed^al court ; but this court is not a subordinate
^sphete to congress^ and it has the exclusive power of obstruct-
''ing the action of congress 1^ letting aside laws as unconsti-
«tutional-" This medley of conclusions is collected indis-
criminately ftom the constitution, the idea of sovereignty, and
tiie emanations (^ that idea scattered in Ae laws of nations ;
ti«t there is no confnshm in their design. They unequivocally
tend to the destructien of the state governments* and the erec-
iion tf Mm non^descript federal government upon their ruins.



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The road {mcedent is enough to justify cmig^ress in a restric*
tioD of the 9tate right of taxation, to a demolishing extent, ac-
cording to the decision of the federal court in the bank case;
as it might legidate upon every other ol^ect useful in war» and
the court would determine that the states could not tax those
oljects. I can recollect nothing whkh mig^t not, according to
the doctrines miyanced, be made an i^ect of exclusive legisla-
tion by congress. It might abolish slavery as useful for war.
It mif^t legislate over the class of free blacks, for some useful
war purpose. Let war be the proposUum, and all means useful to
prepare for, or prosecute it, are considered as its legitimate pro-
geny of powers, and the fedotd judges must have erred, ia
admitting the federal government to be a limited one. It w(»ild
resemble the praying wheel of some Russian hordes, patched
round with prayers, from which the Deity may pick and choose
as he pleases.
V To me this new notion of a constitution by implicatiou is, I

confess, exactly like no omstitution at all; nor has it been
in'oved to my satisfaction, that principles ought to be lost ia
verbal definitions, or property crushed in the jaws of sove-
reignty by its prerogatives, to create corporations, exclusive
privileges and pensions, bestowed upon it by tiie laws of na-
Urns. A have not the least doubt that the Umted States^
though they thought the federal government highly trust^wor-
thy, as is proved by the great powers witii which they invested
it, thought themselves trust-worthy also, in relation to the infe-
rior powers retained ; nor was it presumptuous, whilst they
were granting a power to nuse armies, to imagine that they
mi^t be confided in for making roads. If they cannot, with
what right affecting the puUick good, can they be trusted ? md
if this pitiful suspicion is sufficient to deprive them of a power
80 inconsiderable, ought not the mistrust to swell as a power
becomes grater, and the reason for an assumptkn of local
powers by congress, to reach every case of more importance
than roads i

I think the constitution contfuns internal evidence, adverse
to that construction, which, taking its stand upon a supposed
paramount spherical sovereignty, and armed with mining toola
by the laws of nations, endeavours to work out a new division
of powers between the federal and state governments, by the



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285

pioneer implic&tkm. Where wad the necesrity of adding the
power of raisii^ armies to that of declaring war« if toia pioneer
could dig new powers out of those expressed? Snrely the rais-
ing of armies was as nmch an appurtenance of declaring w«r^
as making roads. Argnments of this kind might be greatly
raoltifdiedy but I will endeaiwnr to include them in a general
obsenratton. Supposing all means convenient or necessary for
the executkm of an expressed power to pass with it by impli-
cation, the powers of taxmg and declaring wur wooM include,
with less violence than one is made to include banks and the
otiier roads, muiy of the powers also actually given to con-
gress, together with so many more, as to obliterate to a great
extent, or entirely, from the constitution, the idea of a limited
government. Now, as means which would have been included
bj the implication-mode of defining powers, are yet expressed, .
does it not follow, that other means not expressed are not dele-
gated by im{dication, since otherwise the expresrion of any was ,
a mere tautol<^ P It was bestowing powers by a specification,
which, as this mode i^ coiistruction supposes, had before passed,
along with the mother power, by implication. There is no
such incongruity in that mode of construction, which supposes,
tiiat a division of internal and external means, as well as of
internal and external powers between the federal and state
govemmentSi was intended to be established by the constitu-
tion. The {mUick confid^ice does not seem to have been ex-
clnnvely extended to either of these governments in the divi-
»on of powers ; was it suddenly withdrawn from one, in the
case of means? In this view, as means are powers, their divi-
sion between governments intended as checks upon each other
was as necessary as a division of any other powers ; and the
local or internal rule, applied to powers expressed, was equally
called for by implications of new powers umler the disguised
name of means.

It is obvious, that this word <' means" is only a tautology of
the words ** necessity and convenience," and therefore I will
illustrate the nature of the coalition by another quotation. In
Hit famous trial of Hampden in the case of ship-money, the
decision of all the judges of England, except Crook and Hut-
ton, was in these words : ** That the king mig^t Iwy taaes
<^ without grant of parliament in cases of necessity, or when the



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wislndbNigfri 9f wkUkitmgetmiiiiie&BdtiihU

• miy uh f wMt A t wd t mdjltmljm^** LordClttrndmiythovgll
a €MK-writcr aid partial ta ikt kmgp makes the ftHowii^ ab*
ttttaUan apM tUs ilacism : ^Tkadaaiageaiid nmckief cam*
« Mt be cK|mntd, that the ctoim sattuaed hy the deM^ed
« rapnaoh and Muay Aaft attended thii behamar of the

• jadgM» whaaataf their caartrid|sMhBitlad the grand ^m-

• tM of law ta be wmmtmi bf what tfaej <aUed the Madani
«*af feacrafrMtaii aadaeoestfty.'' Aiid» eajs aaotlMr hista^
litti, •'the people bj tUi decitton irere atmek witfa despeit,
« aad eoacfaded very jtufbf, Hm mitgna dkarta mid thB M

• Miigkak t a w t tlaf f aa toi»c M aa ead>^ How hearly rdaftad era
thia *<geaeral raaaaii^ and «ttie laws of natioDsr'

Ikano beiog anlj necasutiet er coBT^iiences* the ap^oi*
Itei af tfaia p re ced e nt to oar mlgect li ebrioas. To metsnira
the grand qaeetien of the parliamaatary r^t of texation by
the standard rf general reason aad aecessitj^ was the same
things as ta naaaape the state rigM of taxation by the sana
standard. In both cases, a plam posttire right woidd be sab*
verted bj necessary or contanisnt nieaas. The king's claiBS
of an exolastTeilghtof jodgingastahisBieaaStwaseqaitalent
ta M exclusive right by oaagress of judgbg as to their means*
M this spheriod power in the king was saficieat to destroy
BMgna chartv aad the old oonstitation of Bnglaad ; it is saffi*
eient ta destroy the new constitution of the Unitsd Static
The dastractbn in Ba^aad would have been eftcted by moA^
hHatii^ the balancing powers of the lords and ooauaons ; ^
destmctioa it will dhct here» will arise from the ttmiWatien
of the balancing powers rf the state goTetvmentk This deei^
sioQ in England was bottomed apon the words pammoimt aad
sorercignty as coastraed by the laws of natiOBS* Had the
jac^es considered the principle of oo^ordteatbn as applicable
to king* lords and commons, they coald neYer have decided
fliat one sphere wifjtkt resort to means for taking away powers
from the others. But by widowing one sphere with a para*
mount sovereignty, and then eni|uiring df tiie laws of nations
irhat was meant by a paramount sorerdgnty in the king, it
was discovered, that it was something which had a right to re^
move all obstacles to its action^ iH*oceeding fi«m sabmdinate
spheres (as the lords and cMsmoDS w^:e snjqposed to be,) out of



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file way. Sa herer by njeeifaig tiie principle <^ eo^rdiiii^tiM
ts inapplicable to the federal aad state govermnentBi ai>d.ea«
dewing the former with a paramount soverrignty, wad then en«
qniringof the laws of nations what a paramount sovereignty iii.
the conclusion also follows, that it is something which bat a
right to remove all obstacles oirt of its wayi^ The judges de-
cided, thit the royal sphere wtm only limited by spberieel
toverdgaty, supremacy, necessity, cowenience, and means of
which the king was to be the s(4e judgei but the nattw eensi*
dered the decision as destructive of its constitution. If oof
congressional sphere be only limited by spbericid sovereign^
aupremacy, necessity, convenience, and meane ^ which it i|
the sde judge, can the nation believe that it will [Hreserve tht
constitutiim of the United States ?

The security, arising from representa1mi» is m repeatedly
urged to defeat the force of these observatiims,- thai it must be
repeatedly noticed. The undemable £ict that sover^gnty ex<«
pounded by tiie laws of nations has in every form of^uressed
mankind, stt^;ested to them the idea of dividing it, before they
had concaved tb^ idea of a govemment throughout respensib^
and subservient to the interest of the eonanunity. In these
divi»<ms, refn^sentaticm has been subjected to restraints; but
if it cannot be restrained because it is representation; if it can
destroy the checks imposed upon itself, then no geremment
0att admit of checks, balances, or di^siens of power* in which
representation is an ingredient; and mankind after a long tra-^
vail have returned to tiie very doctrine they have been trying
to abdUsh, namely, that they must inevitably elect between a
deiqpotism in one, a few, or in many, becamm representation may
he trusted mth unlimited power. Confined fo such a choice,
tbey have generally agreed that the last species of sovereignty
is the worst of its bad associates*

But we have eneountared Ibe doctrine of sovereignty in re-
presentaticHH because it is represeii1»tion« by a great variety of
eenstitotiomd limitati(ms and restrictions uppn representation!
thus expiessing a puUick opinion, that, inve^;ed with sovereign
power^ it could not be confided in« We have made executive
power a representativei of the people ; shall this, like legislative*
Uftract eevereignty from representi^on? But, as if to pu^^le
k^ibioMj the eitrnctrnv of soTere^nty from representation*



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Mi

we have made both the federal and gtate governments represen-
tathre, and g^ven to each the quality said to absorb sovereignty ;
Bor is there any way of getting over this unlucky moral equality,
but by asserting that representation is paramount to represent
tation*

An interlude was ]dayed off many years ago between the
treaty-making power and the house of representatives of con-
gress, appltcaUe to tiiis idea of a spherical sovereignty. The
treaty-makii^ power contended, that the house of representa^
tives had no right to contravene the means it had resorted to
within its sphere of action, but were obliged, in obedience to
its paramount spherical sovereignty, to approptiate money for
carrying a treaty into execution. But it being a case at whicfb
the federal court could not get, there was no tribunal able to
remove the obstruction of a refusal to surrender a constitutional
discretion, as to appropriating money by the house of represen-
tatives; and they arrayed iiie positive powers conferred by
the constitution, against the implied powers and paramount
means claimed by the treaty-making power, though defended by
many quotations from the laws of naticms. The positive power,
of taxation reserved to tiie states, has not been so fortunate in
its controversy with the implied power in congress to create a
bank, merely because a powerful ally of the latter has inter-
posed ; fdHT I cannot discern any dbtinction between the cases*-
The doctrines c^ a paramount spherical sovereignty, of means,
of convenience and of necessity, drawn from the laws of na-
tions, were the pillars which sustained the pretensions of the'
treaty-making powers over the house of representatives, as they^
are now repeated, to deprive the states of a power as expressly
reserved to them by the federal constitution, as the power of
appropriating was to congress. But, co-ordinacy kept its ground
in one case, and subordination is imposed in the othen

I think this concubinage between these words and the laws
of nations is very Mrly detected', by observing that tiie 8th,
9th and 10th sections of the constitution comprise a system of
delegated and prohibited powers, by which some are eocpresdy
prohibited to the states, and others expresdy delegated to con*
gress. Delegation is a species of prohibition, which b^jins
where delegation ends. The objects in view were, to bestow
exclusive powers on a federal government, to retain exclusive



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£89

powers to the state gOTernments* aod to invest both with con-
current powers. This third class was the least numerous, and
consisted chiefly of taxation and promoting arts and sciences.
If a specification of the concurrent powers bestowed on con-
gress was not intended as a limitation of this class of powers,
congress may exercise any power which the state govemmenta
can exercise ; if it was, congress cannot exercise concurrently
with the state governments, any power not contained within
the q>ecification of that class. If the specification of the exclu-
^ve powers given to congress be a limitation of that class of
powers, tlie specification of the concurrent powers ^ven to
congress must be a limitation of that class also ; because can*
did reasoning does not admit of a different construction of the
same cases in the same instrument. The specification of both
classes of power, the exclusive and concurrent, must therefore
prohibit congress in both cases from extending the powers dele-
gated, or in neither. Yet, as if the principles by which these
two classes of delegated powers are limited were not the same,
the catalogue of exclusive powers has received no addition that
I recollect, whilst that of concurrent powers, ori^nally much
the shortest, is daily growing. The precedents of the alien and
sedition laws, and of the bank corporation, recognize a concur-
rent power in congress with the state governments, over per-
sons; and that as to roads, a concurrent power over every thing
useful in war. Under the operation of these precedents, which
have arisen merely from selecting six or eight very compre-
hensive words, and making a glossary of the laws of nations,
the federal constitution is rapidly becoming an instrument, by
which sundry very great powers are exclusively bestowed upon
congress, and by which nearly all other powers are consigned
to the concurrent class, so as to leave very few exclusive pow-
ers to the state governments, except those which go to the or-
ganization of the federal government



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SECTION 16.



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THE MISSOURI QUESTION.



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It is with great reluctance that I consider a question, which
has been so ablj discussed with so little edification; but it
constitutes a proof so forcible, in favour of the construction of
the federal constitution for which I have contended, that it
cannot be neglected.

The idea of a balance of power between two combinations of
states, and not the existence of slavery, gave rise to this unfor-
tunate, and as I shall endeavour to prove, absurd controversy.
What is the political attitude of nations towards each other,
supposed by a balance of power? Hostility. What is the eflfect
of hostility ? War. A balance of power is therefore the most
complete invention imaginable for involving one combination
of states, in a war with another. It is in its nature, and will
be in its consequences, equivalent to the balance of power be-
tween England and France ; and after a series of bargains and
contrivances to stunt or pilfer each other, the party worsted in
the warfare, disguised by these bargains and contrivances, will
be driven by interest or resentment to use more destructive
arms.

But can this happen, when congress itself is to hold the
scales, make the bargains, and adjust the balance? If it would
discharge this business fairly, a balance of power would be
worth nothing, nor would a preponderance be so fiercely con-
tended for. The extreme anxiety to obtain a preponderance
acknowledges a thorough conviction on both sides, that a ma-
jority in congress will not make fair bargains ; and that it will
sacrifice the interest of some states and individuals to advance
that of others. The very first debate under the influence of
this new balance of power has ascertained, that it will destroy
the old federal principles, founded in similar and sympathetick
interests^ and transform congress into a body, merely diplo-



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mtticlu The new confiwleratioii to be sobsiitttted for ihe old
one, ought to be stated without disguise, that it may be duly
estimated, and compared with its rival. It proposes to draw a
geographical line between slavery and no-slavery; to train the
people on each side of it, into an inveterate habit of squirting
noisome provocations at each other through the press ; and to
create a degree of animosity as an ally to ambition and avarice,
quite sufficient to induce a preponderating balance to exert its
whole enei^, in obtaining exclusive advantages. Thus every
vestige of the federal union, according to the existing compact,
would be gradually destroyed, because the two bands of con^*
gressional negotiators would be employed in making sucees*
sive bargains in relation to the balance of power, or in trium^
phantly exercising an acquired preponderance over a van-
quished adversary ; and every new bargain like the one already



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 28 of 34)