inspire them not only with a love of freedom, but with a knowledge of the dangers with which it is threatened, and the means by which they can be averted or overcome. Once convince the masses that party, as now organized, is adverse to their interests and the general good, and that civil-service reform is the much-needed corrective, and we may rely on their common-sense and patriotism for the rest. No man who has the requisite opportunities and knowledge should regard himself as exempt from this duty; but it belongs primarily to the profession which, from its acquaintance with the principles of constitutional law, is best fitted for such a task. The influence of the Bar, as De Tocqueville finely pointed out, is greater in this country than in any other, and has been largely exerted for good.1 The Constitutional Conventions which have done so much good work in the various States were composed principally of lawyers, and are a convincing proof of what might be expected from the Bar if the people were free to choose their representatives. It is therefore to the legal profession, and above all to the young men who in a few years will take the lead, that I would appeal on behalf of our country to regard her as their client, and devote some portion of their laborious days and nights to the cause of reform. I believe that cause to be necessary and just, and that with such advocacy it will prevail.

1 De Tocqueville, La Démocratie en Amérique, vol. ii. ch. viii. p. 174.

LECTURE XV.

Taxation by the United States. - The Power of Congress to Tax for Purposes in its Judgment conducive to the Common Defence and General Welfare absolute and unlimited. - Distinction between expending the Proceeds of Taxation in Internal Improvements and assuming the Control of such Improvements. Jurisdiction of the Supreme

THE eighth section of the first article of the Constitution is as follows: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States."

This clause has been regarded in different aspects, and as variously interpreted. Agreeably to one view, it is not a single grant, but confers two very different powers, which are incongruously grouped under the same head, a power to raise money by taxation, and a power to provide for the common defence and general welfare. Agreeably to the other, it is simply an authority to lay taxes, subject to two qualifications, that taxation shall be uniform, and that it shall not be imposed for objects which are merely local and do not concern the entire people. The former view is now generally conceded to be repugnant both to the interpretation which would naturally be put on the clause if it stood alone, and to the tenor of the instrument as a whole. It wrests the latter part of the paragraph from its antecedent, and gives it an entirely different meaning from that which it would have if considered relatively as part of the same sentence. Unpunctuated, the clause is simply a power to raise money by taxation, with a designation of the purposes for which it may be expended; read with a semicolon after "excises," it becomes

a substantive grant so broad and sweeping as to confer not only all that is subsequently enumerated, but much which the specific grants impliedly exclude.

A government authorized to provide for the common defence and general welfare is virtually absolute, because it must determine what means are requisite for the end in view, and its decision will necessarily be binding on the courts. If such were really the meaning of the clause under consideration, the Tenth Amendment, that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," would have no real significance, since when all has been in effect given, there can be nothing to withhold; and the concluding words would supersede the first or render them superfluous, because the duty to provide for the common defence and general welfare would imply the right to tax as indispensable to its fulfilment. The clause should therefore, as Story observes, be read as if it contained two words, which are in effect implied, and will then stand as follows: "Congress shall have power to lay and collect taxes, duties, imposts and excises, in order to pay the debts and provide for the common defence and general welfare of the United States;" the common defence and general welfare and the payment of the public debts being the ends for which the power is conferred, and taxation a means for their attainment.1

The field of controversy is thus narrowed; but there is still room for doubt. Is the clause an authority to raise money, and consequently to appropriate it, for any purpose which Congress may deem conducive to the common defence or general welfare? Or does it merely authorize the laying and collection of taxes for the execution of the enumerated powers? The former is the literal import of the words employed, and merely sanctions what would be implied under every form of government but our own; that is, the right to

1 Story on the Constitution, sect. 890; see Madison's Letters to Alexander Stevenson, Nov. 27, 1830, 4 Madison's Writings, 120, 126, 131.

UNENUMERATED OBJECTS.

243

expend the public revenue for any purpose that may be deemed conducive to the public good.

The first Secretary of the Treasury accordingly held, in a report on manufactures made in the year 1791, that the national legislature may, in the exercise of their discretion, "pronounce upon the objects which concern the general welfare and for which under that description an appropriation of money is requisite and proper," and that "whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce is within the sphere of national councils as regards the appropriation of money."

This view is nevertheless open to objection as carrying the power of taxation beyond the verge of the Constitution, and authorizing the government to take money from the citizen for uses which it cannot accomplish in its sovereign capacity, and which are, on the contrary, reserved to the several States. The right of providing for popular education confessedly belongs to them, and not to the United States; and yet the latter may, if the Hamiltonian argument is sound, lay taxes with the view of endowing public schools which it can neither establish nor regulate. The leader of the Anti-Federal or Democratic party accordingly contended that such an interpretation would confer a general authority extending much beyond the enumerated powers and having no bounds but the good pleasure of Congress, and that the clause in question should consequently be read with a due regard to the plain intent of the Constitution to restrict the operation of the General Government to certain objects which are specifically enumerated. So Madison took occasion, in his once celebrated report on the Virginia Resolutions of 1798, to characterize Hamilton's doctrine as "extraordinary," and to declare that "whenever money has been raised by taxation and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated powers of Congress. If it be, the money requisite for

1 See the Kentucky Resolutions, drawn by Jefferson, of November 10, 1798, and the Virginia Resolutions of the same year from the pen of Madison, 4 Elliott's Debates (2d ed., Phila., 1876), 528, 542.

it may be applied to it; if it be not, no such appropriation can be made."1 Such a view may appear singular when contrasted with his support of a protective tariff as an indirect means of accomplishing an object nowhere enumerated in the Constitution. Whether money shall be raised by taxation and then laid out in bounties, or purchasers shall be compelled to pay a higher price to manufacturers than they would have to give abroad, would seem to be merely a question of form.

The teachings of politicians while in opposition are often in direct and painful contrast to their practice after they have assumed the responsibilities of office. Madison's argument against a discretionary right to make appropriations for the common defence and general welfare may have been sounder than those which he used in the same document to prove that the Constitution is a compact between the States, and that each State may, and indeed ought to, judge whether the agreement has been violated, and if need be, interpose in "its sovereign capacity" to correct the error; but the effect was to preclude the expenditure of the public revenue for many purposes which concern the nation not less than the several States. It is not, therefore, surprising that the doctrine of the Virginia resolutions should have been systematically disregarded when the Democratic party came into power, and that appropriations should have been made for measures not within the enumerated powers, and which Congress could not carry into effect by legislation.3

Fifteen millions were expended under Jefferson for the purchase of Louisiana, and a large sum granted for the construction of a road leading from the Valley of the Cumberland to that of the Ohio. A like policy was followed by Madison and Monroe throughout their respective terms of office; and the former, while denying the right of the United

1 Madison's Report, etc., 4 Elliott's Debates (2d ed., Phila., 1876), 525, 526.

2 4 Madison's Writings, 5, 7, 243.

8 Jackson's Veto of the Maysville Road Bill, 4 Elliott's Debates (2d ed., Phila., 1876), 528.