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CONSTITUTION OF THE UNITED STATES:
A PRELIMINARY REVIEW
THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES,
BEFORE THE ADOPTION OF THE CONSTITUTION.
By JOSEPH STORY, LL.D.,
DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY.
IN TWO VOLUMES.
“ Magistratibus igitur opus est; sine quorum prudentiâ ac diligentia esse civitas non potest;
CICERO, DE LEG. lib. 3, cap. 2. .
* Government is a contrivance of human wisdom to provide for human wants."
Entered according to the act of Congress in the year one thousand eight hundred and thirty-three, by JOSEPH STORY, in the Clerk's Office of the District Court of the District of Massachusetts.
Entered according to Act of Congress, in the year 1851, by WILLIAM W. STORY, in the Clerk's Office of the District Court of the District of Massachusetts.
POWER TO BORROW MONEY AND REGULATE COMMERCE.
$ 1054. Having finished this examination of this power of taxation, and of the accompanying restrictions and prohibitions, the other powers of congress will be now examined in the order, in which they stand in the eighth section.
$ 1055. The next, is the power of congress “to borrow money on “ the credit of the United States.” This power seems indispensable to the sovereignty and existence of a national government. Even under the confederation this power was expressly delegated. The remark is unquestionably just, that it is a power inseparably connected with that of raising a revenue, and with the duty of protection, which that power imposes upon the general government. Though in times of profound peace it may not be ordinarily necessary to anticipate the revenues of a state ; yet the experience of all nations must convince us, that the burthen and expenses of one year, in time of war, may more than equal the ordinary revenue of ten years. Hence, a debt is almost unavoidable, when a nation is plunged into a state of war. The least burthensome mode of contracting a debt is by a loan. Indeed, this recourse becomes the more necessary, because the ordinary duties upon importations are subject to great diminution and fluctuations in times of war; and a resort to direct taxes for the whole supply would,
under such circumstances, become oppressive and ruinous to the agricultural interests of the country. Even in times of peace exigencies may occur, which render a loan the most facile, economical, and ready means of supply, either to meet expenses, or to avert calamities, or to save the country from an undue depression of its staple productions. The government of the United States has, on several occasions in times of profound peace, obtained large loans, among which a striking illustration of the economy and convenience of such arrangements will be found in the creation of stock on the purchase of Louisiana. The power to borrow money by the United States cannot (as has been already seen) in any way be controlled, or interfered with by the states. The granting of the power is incompatible with any restraining or controlling power; and the declaration of supremacy in the constitution is a declaration, that no such restraining or controlling power shall be exercised.2
$ 1056. The next power of congress is, “ to regulate commerce “ with foreign nations, and among the several states, and with the Indian tribes.”
$ 1057. The want of this power (as has been already seen) was one of the leading dofects of the confederation, and probably, as much as any one cause, conduced to the establishment of the constitution.3 It is a power vital to the prosperity of the union; and without it the government would scarcely deserve the name of a national government; and would soon sink into discredit and imbecility. It would stand, as a mere shadow of sovereignty, to mock our hopes, and involve us in a common ruin.
§ 1058. The oppressed and degraded state of commerce, previous to the adoption of the constitution, can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests ; and our disunited efforts to counteract their restrictions were rendered impotent by a want of combination. Congress, indeed, possessed the power of making treaties ; but the inability of the federal government to enforce them had become so apparent, as to render that power in a great degree useless. Those, who felt the injury arising from this state of things, and those, who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It is not, therefore, matter of surprise, that the grant should be as extensive, as the mischief, and should comprehend all foreign commerce, and all commerce among the states.1
1 i Tuck. Black. Comm. App. 245, 246; The Federalist, No. 41. 2 Weston v. City Council of Charleston, 2 Peters's R. 449, 468.
3 Gibbons v. Ogden, 9 Wheat. R. 1, 225, Johnson J.'s Opinion; Brown v. Maryland, 12 Wheat. R. 445, 446.
* The Federalist, No. 4, 7, 11, 22, 37.
§ 1059. But this subject has been already so much discussed, and the reasons for conferring the power so fully developed, that it seems unnecessary to dwell farther upon its importance and necessity. In the convention there does not appear to have been any considerable (if, indeed, there was any) opposition to the grant of the power. It was reported in the first draft of the constitution exactly, as it now stands, except that the words, “and with the Indian tribes,” were afterwards added ; and it passed without a division.3
§ 1060. 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 extent of the power to regulate commerce with the Indian tribes. : $ 1061. 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
Brown v. State of Maryland, 12 Wheat. R. 419, 445, 446; 1 Tucker's Black. Comm. App. 248 to 252; 1 Amer. Museum, 8, 272, 273, 281, 282, 288; 2 Amer. Museum, 263 to 276 ; Id. 371, 372; The Federalist, No. 7, 11, 22; Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828 ; 5 Marshall's Life of Washington, ch. 2, p. 74 to 80; 2 Pitkin's Hist. 189, 192.
? The Federalist, No. 7, 11, 12, 22, 41, 42.
69 Wheat. R. 196.