The Massachusetts spy. [volume] (Worcester [Mass.]) 1831-1858, 1831-11-23

HS"'"' whose language the convention spoki
ana whose legal and legislative phraseolory wa
tEeirs also. Every leading State of Europe was, a
'nat moment, regulating its commerce for purpose,
OF this nature Such purpose, indeed had beer
long sought to be accomplished by some of the
STATES Themselves, by their own regulations O
Ia1e. massachusetts had attempted it, New Yors
had attempted it, Virginia had ATTEMPTED il. anc
we believe other States had done the same How
Intellectual all their attempts were, for want o.
union and general system, was soon seen anC
felt, by the whole country; but they shew to wha,
ehds, ana to what uses The power regulate trade
was understood to extend. But not only in othel
nations, and in the States, before the adoption n
tie present constitution, shall have occasion
to show hereafter, but in the United States since
and In the administration of this very constitution
regulations Of trade have been made, in almost in
Vulnerable instances, with no view to revenue. bu
wild sole ana exclusive regard to protection.
1t oar understanding of the constitution be moi
according to lis true meaning, that instrument hal
been grossly violated from The very beginning
What are all the registry acts; what the bounte,
on the hsheres, but so many avowed efforts 10 pro
tect American Industry under the power Of regu
Iating trade On what foundation does the whole
system OF the coasting trade stand 7 The Amer
lean ship-builder and ship-owner has enjoyed from
the first, and we think properly, not only protec
ton IN that trade, but the monopoly of it, He
shuts out all foreign competition. and he does SC
on the ground that the public good is promoted by
giving him this advantage. We think he is right
IN asking this and the government right in grant.
ing it. Yet this is not free trade it is prefer
ence sit is protection, and protection of n manu-
facture under the powe: to regulate trade. The
laws giving TINS protection to the manufacture and
the use OF ships may be wise, and laws protecting
other manufactures may be unwise. But the first
cannot be constitutional and the latter not const-
tuuonal. III there be power for one, there is power
for both. Both are drawn from the same grant.
both operate by the same general means, and both
nnf fhar e
American labor and capital against foreign compe-
titlon. II 1t be said that the navigation act is
founded In national policy and that it is essential
TO national defence and national independence, we
admit 1t. bot we answer, in the first place, that
Congress could not exercise a power not granted.
merely because 1t might be useful or necessary :
and, IN the second place. we say that the same re-
mark is true OF the policy of protecting manufac-
lures. That policy, also, is essential to national
Independence Iron, hemp, and clothing for sailors
and soldiers are not less indispensable to national
defence than ships and seamen. Not only in the
general use of language, then, does the mower of
laying duties and regulating trade extend to the
protection, by the use Of such means, of domestic
manufactures, but such has been the constant in
depreciation Of the constitution ITSELF
We think, indeed, that when general power
n given to Congress by the constitution Of the
Omitted States, in plain and una indigenous words,
Their acts are constitutional and valid if thew
VI,
alzit, in considering the validity of the law, the
sNOtives of the Legislature can never be investi.
gGled. Having granted the power with such
5HHits expressed as were thought proper, its ex.
eng Use, within those limits, is left 10 the discre-
ton of Congress
What is the true character of the opposite
doctrine? 1t is, that the constitutonality of a
law depends, not on its provisions and enact.
me MS, but on the motives of those who passed
1t. Is not such notion new How are we to
asc ertain the motives of Legislature? By
private inquiry by public examination by
con Jecture? The law may be passed on mixed
mo tives some members voting for revenue
SOD lie for protection; or one house may act with
one view, and the other house with another
What will be the character of such law?
According to this new theory, if the motives
he constitutional then the act is; if the motives
he unconstitutional then the act is unconstitu.
fsOnaI also. 1t follows, therefore, that a law
passed by one Congress may be constitutional
winch, 1t passed by another, though in the same
words, would be unconstitutional Besides, on
inns theory law may be unconstitutional fol
lis omissions as well as its enactments; because
in laying duties, articles NAV be omitted as wei
las articles inserted, from a design to favor man
nfactures
we may pursue this inquiry a step farther.
In order TO ascertain whether an act were
passed primarily for revenue, the constituting
power must be authorized to inquire whether
that revenue be necessary. For if il be con
ceded that Congress has constitutional Dowe,
10 raise an indefinite amount of revenue such ;
concession will cover any system of impost
that may ever be adopted. The right to rails,
more revenue than the expenses of government
require implies the exercise of power TO IA,
under circumstances in which the raising O
revenue cannot be primary purpose, but il
which purpose to protect industry, or, in othe
words, what has been called the incidental oh
1ect, may be rendered, in effect, the principa
object OF the tax, although yelled under III,
revenue power. For these reasons we saw i
follows as an inevitnbls consequent under th
view of the source Of the protective power, tina
the constitutionality of any system of imposts
processing to be directed to revenue, must dc
pend upon the fact whether that revenue b,
necessary to the government or not
The statement OF such consequence is suffi
cent TO show what endless difficulties must EN-
barrass the operations Of the government in &c
timing the limits of this incidental protection
which has been alleged TO be the only protec
ton that the constitution allows, and oil itsel
affords, what we conceive to be, an unanswera
BILE argument against referring the right 10 pro
tect industry exclusively to that clause Of tn,
constitution which authorizes Congress 10 la,
iinposts for the purpose Of revenue.
10 determine whether any proposed amour
OF revenue be necessary would, in great mum
Der Of cases, prove fruitful source Of pexatiou
and Improbable controversy One party
conceiving it wise 10 improve the face of thei
territory with expensive roads and canals, I,
provide Notifications and the munitions of war
and to accumulate treasure in the expectation
of national difficulties would find good rca so,
TO maintain that large revenue was ndispen
sable TO the nation. With this party a hat
and burdensome rate of imposts, fully adequate
to the most extensive protection of manu- facture
that has ever been asked for, would be constitu
tional application of the revenue power An
other party, more thrifty in their policy, hold
ing that the expenditures of the governlnen
should he graduated to the lowest practicable
scale of economy, would contend that nothin.
should be raised by duties above the ordinar,
supplies necessary for the pay of the publ
agents. With this class all the excess, aboy
the sum that they might hold TO be necessary
would DO the fruit of an unconstitutional tax
who should judge between these confliclin,
opinions IL such were the limits upon tn
power OF Congress il would be true, as has bee
SAID, that there might be acts IN violation Of tn
constitution which would elude the notice o
the Judicial tribunals but the evident absurdit
oil subIectlng the right TO exercise Fundamental
powers 10 so vague and intangible standard q
Interpretation, furnishes ono of the most salts
factory proofs that no such intention existed il
the minds OF those who framed our constitution
Pursuing the investigation, it will be foun
that the difficulty attending this notion of tn
source OF the protecting power does not en-
with the impracticabitv nf do,orm;n;no NM