The southern press. [volume] (Washington City [i.e. Washington, D.C.]) 1850-1852, 1852-03-20

he suggestions OF the 0ONcIlluI Ol hiauAuid
in his biennial message to the general assembly
of that State at its late session, and the discus
sion in the house of representatives upon the
question Of imposing a discriminating tax BY
one State as. counteryailing measure, on the
products and manufactures Of another, when
brought into the former for sale, have induced
me to examine the subject. The result OF The
examination is a thorough conviction Of the
right of a State 10 impose such tax; and en-
tirely concur with the governor and his friends In
the house, that its imposition would be de-
fensible against any State that refuses to per-
form its constitutional duties to the prejudice Of
another
do not understand that the tax was recon-
mended as measure for immediate adoption.
4 | have hastily thrown together the following
views and as the subject is not well understood,
beg yon will give this paper place in the
aSollthern Press" The flag Of State Rights is
now at half mast, the doctrines of federalism
are triumphant and it is time to vindicate the
teachings Of Jefferson and Madison. | address
myself to the subject.
The first clause of the eighth section Of the
first article of the Constitution of the United
States, grants the power to Congress /" to lay
and collect taxes, duties, mposts and excises,"
and provides that aall duties, imposts and ex
cises, shall be uniform throughout the United
States" and the co-relative provision is found
in the second clause of the tenth section of the
same article, which provides, that mo State
shall, without the consent of Congress, lay any
imposis on Duties Oh imports or exports, except
what may be absolutely necessary for executing
its inspection laws"
The third clause Of the section first referred
to, gives the power to Congress I" to regulate
several States, and with Indian tribes"
1t may be assumed as a postulate, that, pre-
vious to the adoption of the federal Constitution
the power of the States to tax property within
their limits, was unrestricted; and we think it
equally clear, that the affirmative grants recited
do not, In themselves, divest this power and the
negative, upon the authority of the States, APP
plies only to imports and exports" This
question has so often been considered and ad
Indicated, that we prefer TO cite the opinions of
others, rather than rely upon our own unassisted
argument
The Supreme Court of the United States
have decided that the powers granted to Con-
gress. are not exclusive of similar powers exist.
ing in the States, except where the Constitu-
ton has expressly, in terms, given an exclusive
power to Congress; or the exercise of like
power is prohibited in the States or there is
a direct repugnancy or compatibility in the
exercise of it by the States GAY
The same learned tribunal has held, that the
laying Of" duties or imposts on imports" was
derived from the power to tax and stress is
laid on the fact that The power is given in the
same sentence as the power to lay and collect
taxes" The power, they say, to regulate CON-
merce, is given in separate clause ms being en-
trely distinct from the right to levy taxes and
imposts, and as being new power not before
conferred. Had not the States been prohibited
they might under their power to tax, have levied
duties on imports and exports This prohibi-
tion, then, is an exception from The acknowledged
poaosr Of The Slates 10 levy tares, mol from The
Questionable potcer 10 regulate commerce" (B)
In the thirty second number of the Federalia
it is said "that notwithstanding the affirmative
grants of general authorities, there has been the
most pointed care in those cases, where ii was
deemed improper that the like authorities should
reside in the States, to insert negative clauses
prohibiting the exercise of them by the States"
Hence it was concluded by Chief Justice fancy,
in the Boston and New York Passenger cases
co. That the grant of general authority to
regulate commerce, il not therefore prohibi
ton TO the States TO make regulations concern.
ing il within their own territorial limits, not in
conflict with the regulations of commerce.
/" The authority of Congress TO lay taxes upon
it, is derived from the express grant of power
in the 9Th section OF the LIST article, to lay and
collect taxes, duties, imports and excuses and
the inability of the States TO tax it arises from
the express prohibition contained in the 10th
section Of the same article
This was the construction of the Canstitu.
ton under which the people of the States adop
ted il, and which has been affirmed in the clear.
est terms by the decisions OF this court
These principles were previously affirmed by
the same court, ID, where il was said The
sovereignty of State. in the exercise of It's Leg
islation, is not 10 be impaired unless il be clear
that IL has transcribed its Legitimate authorily !:
nor ought any power 10 be sought, much less 10
be odJudged in favor Of tie United States, unless
it be clearly within the reach Of lis constitution.
al charter,-the Constitution containing grant
Of powers in many instances similar 10 those nj
ready existing in the State governments, and
some Of these being Of vital importance to State
authority and State legislation, Il is not TO be
admitted that a mere grant Of such powers in
affirmative terms TO Congress, does pr Sc trans.
Ter an exclusive sovereignty on such subjects 10
the latter, On the contrary, n reasonable inter.
rretation OF that instrument necessarily leads 10
The conclusion that the powers 80 granted are
UcJcf tICtuStpc ~ stHhoT VOtocTt cLiSt1tg IN me
States, unless ichere he Consultation has express.
H. in terms, giuen exclusive polcer t5 Congress
or The erereise of Ike poloer is prohibited 10 The
STATES, or there is a direct 'epugnGncy or incOup
patibiiity IN he erereiss Of IL By Ehs States. In
all other cases, not falling within the classes al.
ready mentioned, IL seems unquestionable that
the States retain concurrent authority, not oplv
upon de le1er and spirit ef The eleUenh amend
nlent # he Constitution, Bat upon me solndea
principles Of general reasoning"
The opinions the Chief Justice, and Justices
Daniel and Woodbury., IN the Passenger cases,
very fully sustain the principles above stated !;
and the hitter seems 10 have collected not only
the decisions Of tie federal courts pertinent 10
the subject but the opinions Of other distin
guished expounders Of the Constitution.
The author Of the 32d number Of the Federal
isl, says: I" ] affirm (wthLhe exception Of duties
on imports and exports) they (the States) would,
under the plan Of the Constitution, retain that
authority 10 taxi in the most absolute and nm.
qualified sense !; and that an attempt on Che part
Of the national government to sbridge them in