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over which the United States Government has not ‘exclusive sovereignty” by the terms of the compact.” I think I have shown to demonstration, that certain powers have been vested in the General Government, not by the terms but by the spirit of the compact. If I have not proved this, I may well despair of proving any thing. I will endeavour, however, to drive one mail more. You say “Uongress has power to promote none but national objects. No object can be national, over which the States can exercise any concurrent jurisdiction: It is absurd to suppose this, &c.” You make an exception in regard to the power to lay taxes, which of itself is sufficient to invalidate your argument, in so far, at least, as it rests on any general principle. But not to insist on this, what will you say to the case of the JMilitia? Here is, most assuredly, a subject of concurrent jurisdiction; and one that is as surely a national one. I will not add a word more. To use your own phrase, the case “is too plain for argument.” To the question then, what measures Congress may properly adopt for promoting the ‘general welfare?” I answer, every measure consistent with the spirit of the terms; naturally and properly conducive to this great purpose; not inconsistent with the due erercise of any of the enumerated subordinate powers, and to which no single State is competent, may fairly come within the scope of their powers. This proposition has the merit of being intelligible, at least. It is practical, too. Nor does the power, which it claims for the Government, in the management of honest and discreet men, under the supervision of a virtuous and enlightened people, involve any danger. Without these conditions, no community can be safe, be their parchment defences ever so numerous or complete. Suppose that in the course of our affairs, the public good should clearly require the adoption of some measure, consistent with the spirit of this proposition, yet not fairly referable to any one of the specific powers of the Government. What should be done? I am aware what your answer must be. But, it would not, I am confident, be the answer of any sound statesman called to act in the emergency. Is the supposition extravagant? It is not supposition. It is history, the history of the acquisition of Louisiana and of Florida.
I have taken notice of your attempt to define the terms “ national interests ;” and have shown that it is unsuccessful, to say the least. In another place, you have defined the terms ‘general interests'—which, it is manifest, you regard as equivalent to the other, because you affirm, that they are those, on which alone Congress can legislate—to be those interests in which all the States directly participate. These two definitions, it is quite clear, are not coincident—they are not equivalent; they are not consistent. If, according to one of these definitions, it is sufficient to denominate any interest a national one, that Congress have a special and exclusive power to regulate it, then this definition completely overthrows the other. For Congress have the unquestioned power to regulate the Fisheries, for example; yet, surely this is an interest, in which all the States do not, and cannot, directly participate.
One clear exception, is as fatal to a definition as a thousand. But others may be adduced. Our statute book shows that Congress have the power to make grants of the public lands for local purposes; for purposes, by which no more than a single State can be benefitted directly. So, on the other hand, there are ‘general interests,” which, according to your definition, are not, and cannot be, ‘national.” No interest can be more ‘general,” for instance, none, certainly, more important, than that of education; none more worthy of the fostering care of the Legislature. Yet, were Congress to attempt to legislate on the subject, you would, you must denounce the attempt as usurpation. Can principles thus mutually conflicting, be sound? It is unnecessary to pursue their refutation further. The more ingenious and elaborate your reasoning on such premises, the farther will it lead you from the truth. There is one other view you have taken of these ‘general expressions,” which seems to demand some notice. The power to levy money by taxes, imposts, &c. you consider as unlimited in regard to amount; and, therefore, requiring to be circumscribed by defining the purposes to which, when raised, it may be applied. Unlimited in terms, this power certainly is. It could not be otherwise. But, though a word had not been added to the simple expression of the power, it must still have been limited by the reason and propriety of things; by the provisions of the Constitution, of which it formed a part. Out of their abundant caution, however, the framers of this instrument undertook, as you affirm, to restrict the exercise of this power. How does this appear? From your unfailing treasure-house of proofs, the journals of the Convention. Let us see. A motion was made in the Convention, “to restrain the Legislature from establishing a perpetual revenue, &c.” This you explain justly, as I think, as intended to prevent the raising of money except as the exigencies of the State should require. Had a provision been adopted corresponding with the spirit of this motion, it would certainly have operated as an effectual restriction on the exercise of this power. But no such provision was made, nor any in the slightest degree resembling it. TNow, on your principles, this fact militates directly against your argument. . From the failure of this motion, you ought to have inferred, that the Convention did not intend to restrain the exercise of this power. For, when a motion was made to confer on Congress a power to emit “bills of credit,” to grant charters of incorporation, to establish a university; and another to authorize them, as you suppose, to protect and encourage domestic industry, because these motions did not prevail, you conclude, in a tone of ovation, that all these powers must be regarded as unconstitutional. This is the old story of the Justice and the Farmer. The ownership of the bull, changes the whole complexion of the affair. You have taken pains to state, that these words “ common defence and general welfare,” appear on the journals, “for the first time,” on the 21st of August, and in connexion with the motion mentioned above; and that they are not found in Mr. RANDolph's resolutions. I know not why you have done this, unless for the purpose of intimating, that they were suggested by the consideration of this motion, or by the proceedings which grew out of it; and that this suggestion led to their inSertion, at length, as a restrictive clause. The inference would have been of little value, had the fact been correctly stated. But, it is not so. They are found in Mr. RANDolph's resolutions, and they do appear on the journals so early as the 29th of May, and again, on the 30th.* The power to impose taxes, duties, &c did not necessarily require any express limitation, as I have before remarked. It was natural, however, to subjoin the general purposes for which it was to be exercised. But, it does by no means follow, as you suppose, that any words added to this unlimited grant, must operate to narrow its import. Suppose the clause added had been, “for all purposes whatever, which they may judge fit.” Would this have operated as a restriction? Most certainly, not. Whether, then, the clause subjoined is to be taken in a restrictive sense, must be determined by its natural and true import. There is nothing in its position to control its meaning. Tried by this standard, the words in question will be found to impose no restraint on
this power, to which it would not otherwise have been subjected. On
the contrary, it is impossible to fabricate out of the whole vocabulary of our language, a phrase of broader import. It is wide enough to embrace every act of power, of a beneficial tendency, not only of a Government like ours, but of the most despotic Government on earth. So far as the natural import of this phrase is concerned, it is impossible even to imagine any purpose, that could have been accomplished, if it had never had a place in the Constitution, which may not be accomplished now. Without this addition, the taxing power would have authorised no appropriation prejudicial to the public interests; and with it,
mone that is not so, is excluded.
Suppose the terms had never been inserted in the Constitution at all. It would then have borne that Congress should have power “to lay taxes, &c.” Lay taxes for what purpose, would be the immediate inquiry of every man who perused the instrument. And where would the answer have been sought? In the purposes for which the government was established; in the enumerated and specific objects entrusted to its care. And had not these general expressions been found in the Constitution, there would have been no question that these enumerated objects were the only ones, for the attainment of which taxes, &c could be imposed. These general phrases express, as already remarked, the end and purpose for which the Government was instituted; and to which purpose the power to levy money, and all the other powers in the Constitution, express or implied, are meant to be subservient. In
* In your 18th No. you say the taxing “clause stood at the head of the enumerated powers, in Mr. PINKNEY’s draft, submitted to the Convention as soon as it was organized for business, and also in the reported draft of the Constitution, long before the general phrases were thought of or suggested.” Now what are the facts in this case ? The Convention was not fully organized for business, till the 29th of May; and on that day, Mr. RANDolph presented his Resolutions, which formed the nucleus of the Constitution. The first of these was in the following words: “Resolved, That the articles of the Confederation ought to be so corrected and enlarged, as to accomplish the objects proposed by their institution, viz.: common defence, security of liberty, and general welfare. This was the first proposition submitted to this body, and here we find that “ common defence’ and ‘general welfare,” are stated to be the very objects for which the whole government was to be new modelled. Yet you af. firm, that these phrases were not thought of till long after,’ and then introduced
for the purpose of restricting the power to appropriate to the specific objects enumerated
so far, therefore, as this relation implies a restrictive effect in these general terms, so far they are restrictive, and no further. They certainly do express the purposes for which the power was given. But the true question is, not whether the terms ‘general welfare,” effect an ‘ augmentation’ of a power before absolutely unlimited. The advocates for a liberal interpretation are not, as you affirm, reduced to this “absurdity.” The horns of the dilemma between which you think you have placed them are quite harmless. The question is, whether these general terms do, or do not, assign a wider range for the exercise of this power, than would, without them, have been assigned by the enumerated and specific provisions of the Constitution. The only absurdity chargeable onus, is maintaining the affirmative of this question. We maintain that the exercise of this power is not, and cannot be, restrained within narrower limits than it would otherwise have been, because its purpose is expressed by general terms, that must of necessity, include all the particular purposes, to which it would otherwise have been confined, and which may include many others. We are not arguing an abstract metaphysical question; whether a power wholly unlimited will not be controlled by assigning the purpose for which it is created. Doubtless it will, and exactly in proportion as this purpose is definite and precise. We are only contending that these general terms, of an import as extensive as any the language can furnish, cannot restrain this power within a narrower compass, to say the least, than would the individual specifications under them. It is in these specific powers, viewed in the light of your system of interpretation, that the restrictive force of the Constitution is to be sought. In these general terms it cannot be found. One who had not adopted principles of construction in relation to the Constitution at large, which led him to cramp and curtail the import of these very terms, would hardly think of looking here for restrictions. But, after you have by a previous process of your own, pared down the meaning of the terms to suit your purpose, you go back to the Constitution with these narrow associations in your mind; and contend, that the meaning which you imagine you have found, must have been the meaning of those who framed it. This is more like sophistry than sound reasoning. It is in the general scope and spirit of the constitution as a whole, that we ought to look for the limits of the appropriating power. These limits we shall of course regard as more or less extensive, according to the general principles of construction, which we adopt. But be their limits wider or narrower, it is still true, alike on your principles and on mine, that money could have been constitutionally appropriated to no object, had these terms been omitted, to what it may not be appropriated now. But the converse of this proposition is not to be admitted. So far from it, I maintain, that the insertion of these terms, though it does not directly, of course, give a wider sphere to a power, which before was unlimited, does yet operate to prevent and obviate the restrictive effects which might otherwise have been claimed for the enumerated and specific provisions of the Constitution. So that had the Constitution stood as it now does, with the exception of these general terms, you would not have been under the necessity of allowing any wider scope to this power, than you do at present. For you might then fairly have insisted, that the enumeration ef objects to which it could be applied was complete, and exhausted the 10
subject. The advocates of a liberal constructrion, on the contrary, must, in that case, have been precluded from claiming so much as they now do; as without these general terms to support their claims, they must have admitted your doctrine of specific powers to be correct.
You are particularly unfortunate in regard to these general phrases of the Constitution. They lead you into inconsistent definitions and conflicting arguments; and yet, were it possible that every thing you contend for should be correct, it would avail you nothing. Allow your principles of interpretation to be abstractly just, they would fail in their application. They would not meet the exigencies of the state; they could not guide the course of affairs.
Some of your reasonings are certainly ingenious—far too ingenious to be sound. I have a sort of instinctive distrust of all profound and subtle speculations, as they are called, on politics, morals or religion. Truth, valuable truth, in regard to all these subjects, lies on the surface. He who digs deep for it, will be sure to miss it. “ The word is nigh thee.”. It was the observation of one of the most sagacious of men, in regard to various readings of ancient authors, “that a reading could harldly be the true one, which required much ingenuity to support it.” The maxim is as just in application to constitutional questions, as to classical authors.
In examining the question whether Congress has the right to legislate for the protection of domestic industry, I propose to reverse the order hitherto pursued; and dispose, in the first place, of the particular objections you have urged against it, principally, from the journals of the Convention. I will begin with your 15th number; the substance of which I take to be this. “As the Constitution has prohibited the respective States from laying imposts or duties without the consent of Congress, it follows, that, with such consent, they may exercise this power; and as the exercise of this power can only be for the protection of manufactures in the State so exercising it, therefore, Congress cannot exercise this power for the protection of manufactures. This power thus reserved for the exercise of the respective States, under peculiar circumstances, is inconsistent with the supposition, that a general power to this effect is lodged in the national government.”
It doubtless appears from this article, that the framers of the Constitution did contemplate the possibility of such a contingency, as an application to Congress, on the part of some of the States, for permission to lay duties—for some purpose or other—and the further possibility that Congress might grant the permission. Thus far I can go, but I cannot see my way a step further. You say yourself, that ninety-nine men out of an hundred might read the article, and be ignorant of its true design, that is to say, of the “design which you attribute to it.” I am one of these; one of the dullest perhaps; for I confess that it remains still, after all the light you think you have shed on it, as dark as ever. The minor term in your argument, that it was designed to give to the individual States an opportunity to protect their own manu