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CHAPTER IX.

of the enumerated Powers of Congress.

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THE enumerated powers, which we now proceed to consider, will be all found to relate to, and be consistent with, the main principle; the common defence and general welfare.

The first is to lay and collect taxes, duties, imposts, and excises. The three latter must be uniform throughout the United States; but there is no description of the subjects to be taxed nor any limitation of the amount to be raised. The necessity of vesting this power in the union, seems to be too obvious to require much argument. No government can be supported without the means of raising an adequate revenue. It must possess this power in itself, and must not be dependent on others for their concurrence. We have seen in our own history the inefficient condition to which we were reduced, when the necessary income for the most important national objects, could only be obtained by requisitions of the several states.

Of the amount necessary to be raised, the government itself can be the only judge. In governments under a single head, when a separate purse may be kept, in which the people have no share, restrictions, if practicable, may be useful. Here, where the only treasury is that of the people, where compensations to public officers are scrupulously fixed, and a severe accountability is a permanent principle, no such limitations are necessary. And if the money should be faithlessly intercepted in its way to the treasury, or fraudulently

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withdrawn from it afterwards, the defaulter is always liable to legal coercion.

It was not thought necessary to define what shall be the exclusive subjects of taxation, although in some instances a part of the revenue of a state may be interfered with, by the exercise of the power; for it is better that a particular state should sustain an inconvenience than that the general wants should fail of supply. It was manifestly intended that congress should possess full power over every species of taxable property, except exports. The term taxes is generica), and was made use of to confer a plenary authority in all cases of taxation. The general division of taxes is into direct and indirect; the latter term is not to be found in the constitution, but the former necessarily implies it. Indirect is opposed to direct. There may possibly be an indirect tax on a particular article that cannot be comprehended within the description of duties, imposts, or excises, but if such case can arise, it will be comprehended within the general denomination of taxes. The term tax includes, 1st. direct taxes, which are properly capitation taxes and taxes on land, although direct taxes may perhaps be laid on other things that generally pervade all the states in the union. 2dly. duties, imposts, and excises. And 3dly. all other classes of an indirect kind. Indirect taxes affect expense or consumption, those who reduce their consumption of an article so taxed, reduce the amount of their tax. (24) A direct tax is independent of consumption or expense, and is to be apportioned among the several states, according to their respective numbers, which is to be determined by the same rule that, as already observed, is applied to representation. Indirect

(24) See the case of Hylton v. The United States, 3d Dall. 171.

taxes do not admit of this apportionment, but they are to be uniform throughout the United States on the subject taxed. Thus, if congress think proper to raise a sum of money by direct taxation, the quota of each state is to be fixed according to its census. If indirect taxation is preferred, the same duty must be imposed on the article whether its quantity or consumption is greater or less in the respective states. Whether di. rect or indirect taxation is most consistent with the genius and interests of our republic, has been much discussed, but it is a question now of little moment to us, since a constitution authorizing both has been formed.

The next enumerated power is that of borrowing money on the credit of the United States. When this constitution was formed, the United States were considerably indebted to foreign nations, for the expenses of the war, and its own citizens had heavy claims, as well on the Union as on individual states, for services and supplies during the same eventful period. To combine and consolidate these debts, to discharge some and secure the rest, was necessary for the public faith and interest both abroad and at home. But to avail itself of the power of taxation, in order to acaccomplish such extensive objects at once, would have been injurious to the community. It was foreseen that many public creditors, whether distant or domestic, would be satisfied with the assumption or recognition of the principal and the payment of the interest. By the terms thus introduced, congress received power to make the necessary provisions for such objects. In case of future exigencies, the expenses of war or the failure of part of the usual revenue; a similar mean of continuing the operations and the character of government is also thus provided.

To regulate commerce with foreign nations, among

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the several states, and with the Indian tribes is the third power. This, from its natare, must be considered as exclusive. If each state retained a power to regulate its own commerce with foreign countries, each would probably pursue a different system. Heavy duties or total prohibitions in respect to some articles, irregular and changeable codes of commerce, mutual rivalries, and other obvious inconveniences would naturally ensue. A common head can alone cure these evils. A common head can alone form commercial treaties with foreign powers, for to no other would a foreign power give sufficient credence.

In like manner the commerce between the different states is the proper subject of a general regulation.

In the term commerce are included not merely the act of buying and selling or exchanging merchandise, but also the navigation of vessels, and commercial intercourse in all its branches: it extends to vessels, by whatever force they are propelled or governed, whether wind, or steam, or oars; to whatever purposes they are applied, whether the carrying of goods or of passengers, or proceeding in ballast only. A general, unconfined power to regulate a subject, is in its nature exclusive of the action of others on the same subject.

These principles are so fully and clearly explained by Chief Justice Marshall in a recent case, (25) that we shall make no apology for inserting a large extract from bis opinion.

6 Commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term.

If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit,

(25) Gibbons v. Ogden, 9th Wheaton, p. 1, &c.

unless there be some plain, intelligible cause which alters it.

The subject to which the power is next applied, is to commerce “ among the several states.” Commerce among the states cannot stop at the external boundary line of each state, but may be introduced into the interior.

These words do not, however, comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to, or affect other states.

Comprehensive as the word “among" is, it may very properly be restricted to that commerce which concerns more states than one. The phrase would probably not have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended, would not have been made had the intention been to extend the power to every description. The enumeration presupposes something not enumerated ; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state. The genius and character of the whole government seem to be, that its action is to be applied to all the external commercial concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do 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 completely internal commerce of a state, may be consider. ed as reserved for the state itself.

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