The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, 1839-02-02
WHOLE NO. TO.

The whole controversy depends upon the true inn
port of the word regulate" II 10 regulate"
means TO "promote" or to facilitate" then the |
power to make roads and canals, as an ordinary and
natural mode of facilitating or promoting commerce,
| seems TO be clearly comprehended in the terms of
the grant. IT, however, to regulate, means to make
rules, it certainly does, in the plain and common
use of the word then it gives to Congress no other
power than that of making the rules, or prescribing
| the terms upon which commerce among the States
shall bel conducled-hat is the power of making
cal trade of the States. But would any person call
roads and canals commercial regulations? The
whole question, then, might be safely left to an I'M
sophisticated common sense intel probation OF the Ian
guage of the Constitution but, the argument of
The gentleman from Delaware was certainly an ORR
ginaland ingenious one, Ibeg leave to anayse and ex
anime II more particularly. The outline Of the ar
gument was this: that the object Of granting to Con-
| gress the power of regulating commerce among the
States not had been supposed, to prevent one
State from laying burthens on the productions OF
another State, passing through its jurisdiction, Chat
object being adequately provided for by another
| clause of the Constitution but to prevent greater
mischief absolute prohibitions of the passage, which
if they should occur it would be competent for Con-
gress, under this power to remove; that, if Con-
gress remove legal restraints upon the trade OF
the States, il car remove physical obstructons and
if it remove physical distractions 10 the trade OF
the States it create new channels for 1t. How
ever nicely concentrated this chain of deductions
seems to be- shall endeavor to show that some OF its
links too feebly connected to sustain the conclu-
sion which depends upon it. The gentleman's first
position is, that the power to regulate commerce
among the States was not given TO Congress TO pre-
vent one State from imposing duties on the produc
tons of another passing through its jurisdiction, be-
cause if this were the only object, the power would
be mUgatory, another clause Of the Constitution hav
ing expressly restrained the States from laying
duties on imports or exports In relation to this po-
sition will only remark that the honorable gentle
man seems TO have mistaken the purpose for which
the passage in the Federalis upon this subject was
read, by my able colleague, Up. P. BarbourO who |
opened this discussion. That purpose was not to |
show, nor does the authority cited import that the
emily AFFECT of the power in question was to prevent
the States from imposing duties on the productions
of each other, passing through their respective ju
risdictions. 1t was mentioned merely as one OF the
objects of the power. A farther object undoubtedly,
was, as the gentleman himself has satisfactorily
shown prevent arbitrary Interruptions of the trade
of the States arising from acts OF positive prohbi-
ton and other similar impedments. But the gen
teman is not satisfied even with this extension OF
the power. He says that power of such apparent
magnitude could not have been intended to be pas
sire-a monument OF ITS oUn insignJfcance-and that,
if it extends 10 removing no other obstacles than
such may be nterposed by adverse and unfriend-
ly legislation of the States il becomes utterly passive
Why sir, it u.s. in this respect, like many other
powers granted by the Constitution. The powers to
"repe nvasions" and to suppress instructions"
passive until the proper occasions occur to bring
| them into action. And the honorable gentleman
will permit me to remind him that this very horror
| of passive authority, acting upon one OF the powers
just mentioned, was tbs parent OF the sedttion Iaao
The reasoning was this-the powers to suppress
instructions" implies the power to prepent them,
and the power to preuent them, implies the power to
punish whatever may tend or lead to them-libels
upon the government tend or lead to instructions:
therefore, Congress may pass sedtaoH Gto Tor The
punishment of libels.
The system of reasoning now employed to justify the
exercise of power contemplated by this BILL is equally
and indeed, to my mind, much more forced and ar6i-
rary in its chain of differences. What Is 1t! The
power to regulate among the states authorl-
Congress to remove legislative restraints, imposed
by one state upon the trade of another passing through
its jurisdiction The power remove Legislative re-
straints implies the power to remove natural obsrue-
fons, and the power to remove natural distractions,
implies power TO give artificial facilities; Or IN other
words to make roads and canals But 1t Is true that
the power to remove legislative restraints implies the
power to natural distractions and to give ar
fetal facilities! The one aims only to protect COM
merce in its actual channels the other seeks to open
additional channels for commerce. The object OF the
former merely the free use OF er1sng nigh
ways the effort of the latter is to create and construct
nc,o highways These things are, in their natures
essentially distinct that inference from one TO the
other, is wholly arbitrary and inadmissibe. But the
honorable gentleman from Delaware need not be AFRAID
that this power will remain PASSIVE, unless is exerted
in giving artificial facilities TO trade. 1t has already
been exerted and copousy exerted in the various and
minute regulations connected with the coastng trade,
and this was probably the chief if not the only en-
ployment Of it, contemplated by the trainers OF the
Constitution.
The gentleman read passage from Vattel, for the
purpose of proving the connection between good roads
and canals, and the welfare of trade But nothing is
gained by this position which is very readily admitted
until is also proved that Congress has general power
to promote the trelfare Of trade. The application OF
this authority therefore, proceeds upon an assumption
of the vcrv point in dispute. similar defect exists in
the argument which claims for the general government
the authority to make roads and canals bet,cccn
the states that the government OF each state has to
make roads and canals ctthn its own limits The state
governments have undoubtedly the right to make roads
and canals ,cithn their respective limits but from what
does this right result? From the general discretionary
power which the state governments possess to provide
for the public welfare. Before the argument can be
sustained, then, it must be shown that the general 60
vernment possesses like discretionary power, to pro-
vide for the public welfare The state governments do
not make roads and canals by virtue of specific power
to regulate commerce among the several portions OF the
same state. If they possessed no other power than
this it would not be competent for them to make roads
and canals.
Much reliance has been placed, by the gentleman
from Delaware, as we'll other gentlemen who have
participated in this discussion upon what is said to have
been the practical construction Of the power to "regu-
| late foreign commerce" It's commended that Con-
gross possesses the same power III relation to CON-
merce among the several states that it does in rea
ton to foreign commerce :" and that, as, under the
power of regulating foreign commerce. it has erected
light houses, beacons, buoys, &c with view 10 give
safety and facility to that commerce, it may, under the
power of regulating commerce among the states"
construct roads and canals give safety and facility
the internal trade of the country, beg leave to ask
those gentlemen, by what authority they refer the
ton Of the light houses beacons &c. to the power to
regulate foreign commerce! There is no evidence
upon the face Of the laws themselves which passed
for their erection that Congress legsated under the
| he a he
power to regulate foreign There is colia
eral evidence, however, that they egslated with refer
ence to another clause of the Constitution. 1t was
mentioned by my colleague, who opened this discussion
(Mr. p p Barbour) that the statute book contained
list of made by the several states of the sites
of these buildings The only in which the Con-
suton requires the previous consent of the states to
the alienation Of territory, those relating to the seat