502

POWER OVER COMMERCE.

could be determined only by a fair consideration of the instrument by which the change was effected. It authorized Congress to make laws necessary and proper for the purpose. But its limitation on the means which might be used was not extended to the powers which were conferred, nor was there one sentence in the Constitution which, so far as the Court could discern, prescribed this rule. A strict construction of the Constitution meant only a construction opposed to that enlarged one which would extend words beyond their natural and obvious import. If it signified that narrow construction, which in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant is usually understood imported, and which were consistent with the general views and objects of the instrument; if it stood for that narrow construction which would cripple the government and render it unequal to the objects for which it was declared to be instituted and to which the powers given, as fairly understood, rendered it competent, then, the court could not perceive the propriety of this construction nor adopt it as the rule by which the Constitution was to be expounded. "Commerce," continued Marshall, "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 prescribed rules for carrying on that intercourse."

"The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. An embargo might be a military instrument but might be resorted to with a simple view to commerce. The embargo act in Jefferson's time had been opposed chiefly by the Federalists, as unconstitu

REGULATION OF COMMERCE.

503

tional. Not because the act did not flow from the power of Congress to regulate commerce, but because the particu lar law in question was the annihilation and not the regulation of commerce. The language of the Constitution, continued the Chief-Justice, comprehends every species of commercial intercourse between the United States and foreign Nations. But did the power of Congress equally extend to commerce between the several States? "Commerce among the States," said he, "cannot stop at the external boundary line of each State but it may be introduced into the interior," and it might "very properly be restricted to that commerce which concerns more States than one." His conclusion was that, "the genius and character of the whole government seemed to be that its action is to be applied to all the external concerns of the Nation and to those internal concerns which affect States generally, but not to those which are completely within a particular State which did not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The complete internal commerce of the State, then, may be considered to be reserved to the State itself."

The power to regulate commerce might be exercised by Congress to its utmost extent and it acknowledged no limitations other than those prescribed in the Constitution. Thus the power of Congress over commerce was plenary and vested in it by the Constitution of the United States. The sole resort on the exercise of this power were "the wisdom and discretion of Congress, their identity with the people and the influence which their constituents possess at elections." But was the act of laying duties or imposts on imports and exports as authorized in the Constitution, a branch of the taxing power or of the power to regulate commerce? The court thought it very clear that it was

504

PARAMOUNT AUTHORITY OF CONGRESS.

considered as a branch of the taxing power. But the power in Congress to levy taxes could never be considered as abridging the rights of the States on that subject, and they might consequently have exercised it levying duties on exports and imports had not these been prohibited by the Constitution. "In our complex system, presenting the rare and difficult scheme of one general government whose action extends over the whole, but which possesses only certain enumerated powers, and of numerous State governments which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it otherwise the measures taken by the respective governments to execute their acknowledged powers would often be of the same description and might sometimes interfere." This, however, said Marshall, did not prove that the one was exercising or had the right to exercise the powers of the other. The framers foresaw this state of things and provided for it by declaring the supremacy, not of the Constitution, but of the laws made in pursuance of it.

To this day this remains the great decision on the scope and character of the legislative power under a written Constitution. So clearly did Marshall here prove the paramount authority of Congress to regulate commerce that it was easy by parity of reason to apply that power to the regulation of slavery, and some thoughtful persons long before its abolition had satisfied themselves that Congress had the right, not only to regulate but even to abolish slavery in the exercise of its power over commerce. This opinion, it will be remembered, was held by Webster at the time of the Missouri Compromise, and was embodied by him in the Boston memorial against slavery extension. In the bank decision,1 Marshall not only sustained the 1 McCulloch vs. Maryland, 4 Wheaton, 316.

SOVEREIGNTY OF A STATE.

505

constitutionality of the act creating the bank, but defined the destructive powers of taxation in the States and in Congress. The States are forbidden by the Constitution to lay duties on imports and exports, except what may be absolutely necessary for executing their inspection laws.

But the powers of the States to tax could not be exercised so as to destroy or tend to destroy the National government. "The sovereignty of a State," said he, "is subordinate to and may be controlled by the Constitution." The only security against the abuse of the taxing power is to be found in the structure of the government itself. A legislature in imposing a tax, acts upon its constituents, which, said Marshall, was in general "a sufficient security against erroneous and oppressive taxation." The State legislatures, in Marshall's time, possessed the unlimited right to tax. The State constitutions prescribed no limitations to the exercise of the right. "But the means employed by the government of the Union, said he, have no such security." Nor is the right of a State to tax them sustained by the same theory. Thus, the sovereignty of a State, he said, extended to everything existing by its own authority, but it did not extend to the means employed by Congress to carry into execution the powers conferred on that body by the people of the United States. "If we measure the power of taxation residing in a State by the extent of sovereignty which the people of a single State possess and conferred on its government, we have an intelligent standard applicable to every case to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a State unimpaired; which leaves to a State the command of all its resources and which places beyond its reach all these powers which are conferred by the people of the United States on the government of the Union, and all those means

506

STATE TAX ON U. S. BANK.

which are given for the purpose of carrying those powers into execution. We have a principle which is safe for the States and is safe for the Union. We are relieved, as we ought to be, from clashing sovereignties; from interfering powers; from a repugnancy between a right in one government to pull down what there is an acknowledged right in another to build up; from the incompatibility of the right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means employed by the government of the Union in pursuance of the Constitution is itself an abuse because it is the usurpation of a power which the people of a single State cannot give.

The abuse in the case before the court arose in Maryland, which had imposed taxes on a branch of the United States bank. The supporters of the State sovereignty idea wished to prove that the government of the Union did not possess an indefinite power of taxation, and argued that otherwise, in time, the National government might deprive the States of the means of profit for their own necessities, and subject then entirely to the mercies of the National legislature.

But the argument in the Federalist, which was cited to prove the dangers of this indefinite power in Congress, was intended, said Marshall, to prove the fallacy of these very apprehensions. "If the Federal government should overpass the just boundaries of its authority and make a tyrannical use of its powers," wrote Hamilton in the number of the Federalist here referred to, "the people, whose creature it is, must appeal to the standard they have 1 The Federalist, Nos. XXX-XXXIII.