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than twenty years before the Constitution was formed, this language was universally current in the Colonies and States; that it had acquired, by force of circumstances, an unusually precise, definite, and well-understood sense; that it had all that time been employed to designate or to include a certain known governmental function; that when applied to England, the States, and all other governments, it had, in the understanding of everybody, embraced a certain species and exercise of power for a certain purpose ; — when you admit this, and then find it here in the Constitution of this government, employed to confer a power on it, must you not admit that the presumption is, that it is used in the sense which everybody had understood it so long to bear, when applied to other governments, - neither larger nor narrower; that it means to include the same wellknown function, and not to exclude it ; that it means to communicate the same extent and the same purpose of power, and not less, — the same in quantity, the same in object ?
How is this conclusion evaded? I have heard it attempted thus : The powers given by the Constitution to this government are given in trust, to accomplish the specific and few objects of the Constitution. The promotion of manufactures is not one of the objects of the Constitution ; the promotion of commerce is. The power to regulate commerce, therefore, is given in trust, for the accommodation and promotion of commerce, technically and strictly so called. This, for substance, is the argument of a very able writer in the “ Southern Review" of August, 1830.
Now, Sir, waiving for a moment the direct proof aliunde which I have produced, and shall produce, to show the exact meaning of this grant of the power of commercial regulation, I answer, that it is true that the powers of the Constitution are given in trust for its objects; that the powers are given in trust for the objects of those powers. But then arises the question, what are the objects of this particular power ? What are the purposes which it was inserted in the Constitution to accomplish? You beg the whole proposition in dispute, when you assert that it is no part of the objects of the Constitution to develop the productive capacities of the country, by protecting it from an unpropitious and deleterious foreign commerce, and securing it a beneficial one. The precise question
is, if this is not in part the object of this very power ? It strikes me, Sir, that our opponents on this general question assume, that because commerce is the subject on which the constitutional regulations are to operate, therefore the end and purpose for which these regulations must be made, is the direct and immediate advancement or enlargement of commerce itself, without regard to its qualities or its adverse or propitious influence on the nation by which or with which it is carried on. What else they mean when they say that this power is given with a view to commerce as an end," I confess I do not know ; but surely this is pure assumption, and will not bear a moment's examination. In the first place, they forget that the unlimited terms of the constitutional grant, explained and defined by the historical deduction which I have exhibited, authorize the making of some such regulations as conclusively demonstrate that the object and purpose of the grant is not solely and directly the enlargement of commerce as an end, without regard to the question, what are its imports, or what its exports, or what its influence on the interior labors and prosperity of the country; but rather the promotion of national prosperity by means of a judiciously regulated commercial intercourse. The grant is of power to regulate commerce. The grant is general ; it is exclusive as well as general. It is a power to prescribe rules by which commerce shall be conducted ; it is a power to make commercial regulations. Unless, then, the extent of this grant is limited by other clauses of the Constitution, or by other evidence of an intent to limit it; unless, in some such way, it be shown that there are some commercial regulations which the Constitution did not mean to authorize you to make, taking the grant by itself, and construing it by the law of grant, it communicates power to make all commercial regulations. It is not a power to make some, but all. It is not a power to do some of the things, to pass some of the laws, which are acts in exercise of a general power to regulate commerce, but to do them all. It extends to all, or it reaches not one. Well, among them, among the most common and best known regulations of commerce, the most common and best known acts in exercise of a power to regulate commerce, as we have seen, was a discriminating and protecting tariff; a law moulding commercial intercourse in
such manner as to invite to the development of domestic labor. The grant, then, communicates a power to make such a regulation among others. It stands precisely as if the constitutional language had been, congress shall have power to prescribe rules for the regulations of commerce, and among them protecting tariffs. The analysis of the whole complete aggregate of things authorized, reveals this act as one of them. We take, then, by the legal necessary construction of the grant, the power to make a protecting tariff'; and the nature of the power itself involves and discloses the object of the power, to wit, protection. The nature of the operation authorized to be performed on commerce, evinces that there is an end and purpose in the contemplation of the Constitution beyond commerce itself as an end; and that is the national prosperity.
But, in the next place, these reasoners seem to forget that commerce is, from its nature, and was regarded by the people of this country, at the time of the adoption of the Constitution, and by all governments, and all people then or ever in the world, a mere vast means of prosperity, or of decay, to a nation by whom or with whom it is carried on; and therefore that the Constitution, when it clothed you with the general power of regulating it, intended that you should do so with a view to the attainment of those ends, of which, in its nature, and in the opinions of nations, it is capable of being made the instrument. The framers of the Constitution meant to clothe you with the power of disarming it of all the evil and extracting from it all the good to which the wisdom of government is equal. They could not have intended to do anything so absurd as simply to authorize and require you to promote, enlarge, or advance commerce, per se, and in the abstract, without regard to its quality; to its adverse or its propitious influence upon the prosperity, the morality, the health, and the industry of the people; to the goods it brought home ; to the goods it carried away; the national character of the tonnage it employed, and of the labor it rewarded. They did not look to commerce, but to beneficial commerce. They saw the distinction perfectly. They regarded it, as did the country universally, and as all nations in all ages have done, as an agent of large and varied influence, sometimes of good and sometimes of evil, according
to its nature, and according to the regulations under which it was conducted. They knew, or they believed, that in one form, under one system of regulations, it might strengthen, adorn, and enrich a State ; might seat it on the throne of the sea ; might raise its merchants to be princes, yet not impoverish and not depress its mechanics and its farmers; might stimulate the thousand hands of its labor by multiplying its occupations, enhancing its rewards, relieving it from oppressive competitions with the redundant capital, matured skill, and pauperism of older nations ; might swell its exports with the products of its own skill; might turn in on it the golden stream of the metals, and make it the workshop, as well as the warehouse, of the world : while, in another form, and under another system of regulations, it might impoverish and enfeeble it; drain it of its specie ; overstock its agriculture, yet deprive it of a market; plunge it beneath an insupportable foreign debt; and restrain the division of its labor and the development of its genius. This is the exact view taken of commerce, by the whole American press, from 1783 to 1787.
Commerce, then, in its nature, and the understanding of all, is a means. When, therefore, the general power of regulating it is given to the national government, according to what principles, for the accomplishment of what objects, are you to exert it ? Are you not to do it for those ends, and for all of them, which, by the general theory and practice of governments, it is adapted to attain ? And is not the relief of domestic labor, from the oppressive competitions of an unrestrained foreign trade, among these ends?
Well, now, Sir, to answer this reasoning, it must be shown, by inspection of other parts of the Constitution, by an analysis of its general structure, or by evidence ab extra, that this grant of power is not so broad. It must be shown, in some such way, that there were some well-known and important commercial regulations, some acts familiarly and notoriously done by all governments, in exercise of the power to regulate, which were not intended to be granted by the terms of this most comprehensive and most unlimited grant. It must be shown, in some such way, that this pretty important exception ought to be engrafted on the grant: the congress shall have power to regulate trade with foreign nations, provided, how
ever, that it shall aim at nothing but free trade ; that it shall have no power to make any, or no power to make all those commercial regulations by which other governments always endeavored, and the United States of America, since the Revolution, have endeavored, to increase their own tonnage ; to make their exports exceed their imports, to avoid a drain of their specie; to preserve a favorable balance of trade; and to draw forth their own capacities of labor and of wealth, and their own means of independence. But can you thus qualify the unalterable and the unlimited terms of the Constitution? How do you do it? You say you reason from other parts, and from the general structure of the instrument ; and that no other part of it displays any solicitude for the encouragement of domestic industry, nor does anything to enable you to promote it. But what is that argument worth, even if the fact were so? Does it abridge the clear and broad terms of this particular grant? Because the Constitution clothes you with no other means of developing the industrial capacities of the country than a discreet, wise, and customary commercial system, do you infer, against its positive terms, that it could not have intended to give you even that means ? Might it not give you that, and yet give you no other ?. Might it not go so far, and no farther? Might it not clothe you with that large and imperial power, without going on to authorize you to prescribe the forms of apprentices' indentures, and determine how many hours in a day the operatives in a woollen-mill shall be held to labor? From the nature of the case, is not the selection of powers to be conferred on the general government, from the whole field of sovereign power, in some measure arbitrary, arbitrary in what is given, arbitrary in what is left? The line must be drawn somewhere. How it is drawn, in fact, is a matter of pure interpretation. You cannot put your finger upon a granted power, and say, If the framers of the Constitution meant to give this, logical and political consistency would have led them to give another ; but that they have not given, and therefore they have not given this. Such reasoning substitutes the fancies of sophists for the text of the Constitution, and turns the guide of life into foolishness and a stumbling-block.
And what is there in the general structure of the Constitu