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It was easy to foresee that this state of things could not long exist, without bringing on a border warfare, and a deep-rooted hatred, among neighboring States, fatal to the Union, and, of course, fatal also to the liberty of every member of it.
§ 164. The power "to regulate foreign commerce,' enabled the government at once to place the whole country upon an equality with foreign nations; to compel them to abandon their narrow and selfish policy towards us; and to protect our own commercial interests against thei injurious competitions. The power to regulate commerce 66 among the several States," in like manner, annihilated the causes of domestic feuds and riva ries. It compelled every State to regard the interests of each, as the interests of all; and thus diffused over all the blessings of a free, active, and rapid exchange of commodities, upon the footing of perfect equality. The power to regulate commerce "with the Indian tribes," was equally necessary to the peace and safety of the frontier States. Experience had shown the utter impracticability of escaping from sudden wars, and invasions, on the part of these tribes; and the dangers were immeasurably increased by the want of uniformity of regulations and control in the intercourse with them. Indeed, in nothing has the pre found wisdom of the framers of the Constitution been more displayed, than in the grant of this power to the Union. By means of it, the country has risen from poverty to opulence; from a state of narrow and scanty resources to an ample national revenue; from a feeble, and disheartening intercourse and competition with foreign nations, in agriculture, commerce, manufactures, and population, to a proud, and conscious independence in arts, in numbers, in skill, and in civil polity.
§ 165. In considering this clause of the Constitution, several important inquiries are presented. In the first place, what is the natural import of the terms; in the next place, how far the power is exclusive of that of the States; in the third place, to what purposes and for what objects the power may be constitutionally applied ; and in the fourth place, what are the true nature and ex
tent of the power to regulate commerce with the Ind.an tribes.
§ 166. In the first place, then, what is the constitutional meaning of the words, "to regulate commerce;" for the Constitution being (as has been aptly said) one of enumeration, and not of definition, it becomes necessary, in order to ascertain the extent of the power, to ascertain the meaning of the words. The power is, to regulate; that is, to prescribe the rule, by which commerce is to be governed. The subject to be regulated, is commerce. Is that limited to traffic, to buying and selling, or the interchange of commodities? Or does it comprehend navigation and intercourse? If the former construction is adopted, then a general term, applicable to many objects, is restricted to one of its significations. If the latter, then a general term is retained in its general sense. To adopt the former, without some guiding grounds furnished by the context, or the nature of the power, would be improper. The words being general, the sense must be general, also, and embrace all subjects comprehended under them, unless there be some obvious mischief, or repugnance to other clauses, to limit them. In the present case, there is nothing to justify such a limitation. Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation; which shall be silent on the admission of the vessels of one nation into the ports of another; and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or barter. It may, therefore, be safely affirmed, that the terms of the Constitution have, at all times, been understood to include a power over navigation, as well as over trade, over intercourse, as well as over traffic. It adds no small strength to this interpretation, that the practice of all foreign countries, as well as of our own, has uniformly conformed to this view of the subject.
§ 167. The next inquiry is, whether this power to reg date commerce, is like that to lay taxes. The latter, may well be concurrent, while the former, is exclusive, resulting from the different nature of the two powers. The power of Congress in laying taxes is not necessarily, or naturally inconsistent with that of the States. Each may lay a tax on the same property, without interfering with the action of the other; for taxation is but taking small portions from the mass of property, which is susceptible of almost infinite division. In imposing taxes for State purposes, a State is not doing what Congress is empowered to do. Congress is not empowered to tax for those purposes, which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power, which is granted to Congress; and is doing the very thing, which Congress is authorized to do. There is no analogy, then, between the power of taxation, and the power of regulating commerce.
§ 168. Nor can any power be inferred in the States, to regulate commerce, from other clauses in the Constitution, or the acknowledged rights exercised by the States. The Constitution has prohibited the States from laying any impost or duty on imports or exports; but this does not admit, that the State might otherwise have exercised the power, as a regulation of commerce. The laying of such imposts and duties may be, and indeed often is, used, as a mere regulation of commerce, by governments possess
ing that power. But the laying of such imposts and du
ties is as certainly, and more usually, a right exercised as a part of the power to lay taxes; and with this latter power the States are clearly intrusted. So that the prohibition is an exception from the acknowledged power of the State to lay taxes, and not from the questionable power to regulate commerce. Indeed, the Constitution treats these as distinct and independent powers. The same emarks apply to a duty on tonnage.
§ 169. In the next place, to what extent, and for wha
objects and purposes, the power to regulate commerc may be constitutionally applied.
§ 170. And first, among the States. It is not doubted, that it extends to the regulation of navigation, and to the coasting trade and fisheries, within, as well as without any State, wherever it is connected with the commerce or intercourse with any other State, or with foreign nations It extends to the regulation and government of seamen or. board of American ships; and to conferring privileges upon ships built and owned in the United States, in domestic, as well as in foreign trade. It extends to quarantine laws, and pilotage laws, and wrecks of the sea. It extends, as well to the navigation of vessels engaged in car"ying passengers, and whether steam vessels or of any other description, as to the navigation of vessels engaged in traffic and general coasting business. It extends to the laying of embargoes, as well on domestic, as on foreign voyages. It extends to the construction of lighthouses, the placing of buoys and beacons, the removal of obstructions to navigation in creeks, rivers, sounds, and bays, and the establishment of securities to navigation against the inroads of the ocean. It extends also to the designation of a particular port or ports of entry and delivery for the purposes of foreign commerce. These powers have been actually exerted by the National Government under a system of laws, many of which commenced with the early establishment of the Constitution; and they have continued unquestioned unto our day, if not to the utmost range of their reach, at least to that of their ordinary application.
§ 171. Many of the like powers have been applied in the regulation of foreign commerce. The commercia system of the United States has also been employed some times for the purpose of revenue; sometimes for the pur pose of prohibition; sometimes for the purpose of retali ation and commercial reciprocity; sometimes to lay em bargoes; sometimes to encourage domestic navigation, and the shipping and mercantile interest, by bounties, by discriminating duties, and by special preferences and privileges; and sometimes to regulate intercourse with a view
to mere political objects, such as to repel aggressions, increase the pressure of war, or vindicate the rights of neutral sovereignty. In all these cases, the right and duty have been conceded to the National Government by the unequivocal voice of the people.
§ 172. It may be added, that Congress have also, from the earliest period of the government, applied the same power of regulating commerce for the purpose of encouraging and protecting domestic manufactures; and although this application of it has been recently contested, yet Congress have never abandoned the exercise of it for such a purpose. Indeed, if Congress does not possess the power to encourage domestic manufactures, by regulations of commerce, it is a power, that is utterly annihilated; for it is admitted, on all sides, that the States do not possess it. And America would then present the singular spectacle of a nation voluntarily depriving itself, in the exercise of its admitted rights of sovereignty, of all means of promoting some of its most vital interests.
§ 173. In respect to trade with the Indian tribes. Antecedently to the American Revolution, the authority to regulate trade and intercourse with the Indian tribes, whether they were within, or without the boundaries of the Colonies, was understood to belong to the prerogative of the British crown. And after the American Revolution, the like power would naturally fall to the Federal Government, with a view to the general peace and interests of all the States. Two restrictions, however, upon the power, were, by express terms, incorporated into the Confederation, which occasioned endless embarrassments and doubts. The power of Congress was restrained to Indians, not members of any of the States; and was not to be exercised so as to violate or infringe the legislative right of any State, within its own limits. What description of Indians were to be deemed members of a State, was never settled under the Confederation; and was a question of frequent per plexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, was to be regulated by an external authority, without so far intrud