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tant remark upon this proposition, would | tion, foreign or domestic, must have its be, that as it stands in the Report, it in- origin, as has already been intimated, in volves a confusion of ideas; which appears some single spot or State ; and, if it is inthus : The power given to Congress is, tended by the operator to go beyond the “to regulate commerce among the States." State, it is equally clear that he is entitled Of course, these terms exclude the power to the benefit of national legislation, “to to regulate the commerce of a single State regulate” his case, as making a part of the within its own limits; and yet we are told commerce with foreign nations or among that this latter power exists, “as far as it the several States, for which the Constitumay be indispensable to the due exercise of tion has provided. There will, of course, the former !" This must be the meaning be instances innumerable, of commercial of the Report ; for, in the point in hand, operations intended to terminate within no distinction is made between internal | the State in which they have originated. and external commerce, as respects opera These are admitted, nay, claimed, to be tions within a single State. Now, we deny exclusively subjects of State legislation. that the power exists in Congress, at all, But a rule is necessary to discriminate beor for any purpose, to regulate the com tween the two classes of cases, that we merce of a single State, within its own lim- may know when to apply the power and its, as such ; and the confusion of ideas in- when not; and, for this purpose, we can volved in the proposition of the Report, perceive or imagine no other rule, than consists in this: that it makes an act of that afforded by the intentions of the parCongress, executed, within the limits of a ties as carried out and proved, either by a single State, with a view to the external transmission of operations beyond the limcommerce of such State with other States, its of the State, on the one hand, or a reto be an act so far regulating the internal tention and consummation of them within commerce of such State itself. Now, such these limits, on the other. In the one case, an act can, in no conceivable bearing, be it is commerce with foreign nations or so construed or regarded; for, the com- among the several States; in the other, it mercial operation to which it applies must is not. In the one case, the congressional take its character as an operation of internal power applies; in the other, not. And or external commerce, from its purpose; when a river, improved by act of Conand this, by the supposition, looks exclu- | gress, though running within only a single sively to a commerce beyond the State in State, (as the James in Virginia, or the which it is performed.
Penobscot, or Kennebec, in Maine,) is used Our proposition, on this subject, would for the transportation of articles of combe this: that whatever legislation, to be merce beyond the limits of the State, then carried out, for the regulation of commerce the appropriation for such improvement is within the limits of a single State, is con- / brought within the power to regulate comnected with, or bears upon, the promotion merce with foreign nations and among the of commerce ouiside those limits, must be several States. considered as embraced within the power If these views be sound, then, although the “ to regulate commerce with foreign na- proposition, that the power to regulate tions and among the several States.” | commerce “is restricted to the external Hence, any appropriation made by Con-commerce of the States with each other, gress for the improvement of a river run to the exclusion of their internal," be in ning in only one State, the object of which itself true, yet it is not true as a reason would be, to promote the commerce of that why that power does not apply as well to State with other States, or with foreign an improvement of a river running in only nations, would manifestly be within the one State, as to that of a river running Constitution. This the Report denies, in through half a dozen. Whether such its general proposition, that the power of improvement shall come within the power Congress to improve rivers, does not ex- or not in a given case, must depend upon tend to rivers running in only one State. whether the river requiring it shall, or shall But this denial, in our judgment, cannot not, be navigable for the general commerce be sustained. For one thing is quite clear, of the States. And this would be as true that every instance of commercial opera- of a river running through a dozen States,
as we hold it to be of a river running through | Constitution ; second, it is essentially emonly one. Its national navigability, so to braced within the proper business of reguspeak, and not its locality, in either case, lating commerce, which, being exclusively whether bordered on by one State or a in Congress, is prohibited to the States. dozen, must determine its claim to national | As to the second exception, it is clearly means for its improvement under the entitled to no force, because the power depower to regulate commerce.
nied by it to a State, would be as fully We come now to the second reason for the prohibited in the exclusive power in Confirst proposition. It is stated in the form gress to regulate commerce, as it possibly of a rule, with two exceptions to it. The could be by the provision of immunity to rule, as stated, is, that the commerce of the citizens of each State in every other such rivers (as run within one State only) State, on which the Report professes to is under the exclusive control of the States found it. For, any discrimination in the within whose limits their navigable waters rights of navigation in a particular State, are confined. The exceptions are, first, between the citizens of such State and the " that no vessel from another State, com- | citizens of other States, would be obviously ing or going, can be compelled to enter, an exercise of the power to regulate comclear or pay duties ;" and second, that | merce; and hence, the exception, from “ vessels from other States shall not be whatever provision of the Constitution it subject to any regulation or law in navigat-may be drawn, may properly, if not only, ing them, to which the vessels of the State be regarded, as a limitation upon the power to which they belong are not.”
of Congress to regulate commerce. The Now, this second reason (thus stated in effect, then, of the exceptions is, not to prethe form of a rule) is, without the excep- | vent a State from doing a thing which, tions, merely a corollary from the first ; without them, it might have done, (for for, if the power of Congress be denied | the subject matter of the exceptions being over rivers running only in one State, the exclusively in Congress, a State could not, exclusive power of the State over such as has been seen, have done such a thing rivers must, of consequence, be admitted ; at any rate ;) but simply and only to imand hence, all the argument just presented | pose particular limitations upon the legisagainst the first reason, must be of equal lation of Congress, which, without these force against the second, unless the sec- limitations, the general power to regulate ond, as a rule, be placed upon different commerce would have authorized. The ground from the first by the exceptions States therefore stand, with the prohibiconnected with it. These exceptions could | tions, precisely where they would have give that different ground, only by their stood without them. Hence, the second effect to establish the rule, of which they reason in support of the general proposi. assume the proof, and which they profess tion being entirely unaffected by the exto qualify. Have the exceptions that ceptions connected with it, leaves it liable, effect? We think not, for two reasons : as we have said, to all the objections urged first, because the rule and the exceptions against the first,-being a mere corollary do not belong to the same category ; and from it. But second, because, if they did, the exceptions Second. Admitting the reason and the are co-extensive with the rule, and by neu- prohibitions to belong to the same category; tralizing, destroy it.
admitting that they sustain to each other Firsi. The rule and the exceptions do not the relation of such exceptions; that the belong to the same category. The ex- prohibitions refer to the power of the ceptions are stated, as though they were States over their internal commerce, and limitations to the power of a State in the not to the power of Congress “ to regulate control of its rivers, &c.; whereas, as to commerce among the States ;” still, the the first of them, it is clearly only a limit fact that everything is comprehended ation of the general power of Congress within the exceptions which could be ne“ to regulate commerce." This appears cessary to a free and unlimited commerce from two considerations : first, that it is among the States, makes the exceptions as found under the limitations of the powers broad as the rule, and, of course, nullifies it. of Congress in the arrangement of the | What more, indeed, is necessary to a per
fectly free and unlimited commerce among | They (the Committee) allude to that which prothe States, than the liberty of entering any
vides that no State shall, without the consent river or port of any State, without liability
of Congress, enter into any agreement or com
pact with another State; and which of course to duty on imports and exports, or to dis
permits (with such consent) one State to enter criminating navigation charges ? Vessels
into compact or agreement with another. go from one State to another, through any “ To understand the intention of the framers river that may be navigable, whether run of the Constitution for inserting this provision, ning in one State only, or in many, and return and its bearing on the point under consideraagain-going as they please, and carrying
tion, it is necessary to view it in connection what they please, either way. What is this
with another provision of the instrument already
cited. They (the Committee) refer to that which but the freest commerce among the States ?
prohibits the States from entering into any treaand, in view of it, of what importance
ty, alliance, or confederation in any case whatwould be the rule, that rivers running within ever; plainly because it would be both dangera single State are under the exclusive con- ous and inconsistent with their federal relations trol of that State? Such control, at the to permit it. In order to prevent so important most, could be only nominal. Nay, it | a provision from being eluded, the provision would not be control, but, in fact, a lia
immediately under consideration was inserted,
prohibiting the States from entering into agree. bility on the part of such State to keep
ments or compacts in any case whatever, exsuch rivers in navigable order, at its own
cept one State with another State, or with a expense, if kept in such order at all. foreign power; and to prevent the abuse even
So much for the first proposition and the of that limited power, the consent of Congress reasons offered to support it. We think we
is required. Such is the prohibition and the have shown the reasons to be utterly des- |
reason for it. The reason for the exception is, titute of substance, and of course that the
that without it the prohibition would substitute
the federal authority for that of the States, proposition, at least as depending upon
for the adjustment and regulation of all the these reasons, cannot be sustained.
various subjects in which the several States The second proposition is, that the con may have a mutual interest in adjusting and stitutional power of Congress over river regulating, including such as the one under obstructions, does not extend to such rivers consideration; and thereby would give greater as are confined to two States, whether di
extension and minuteness to the authority of viding or running through them. We would
the General Government than was desirable or
consistent with the objects for which it was inhere remark, that the whole of the pre
stituted. Under the exception, it is left to the ceding argument is as applicable to this
States, when only two are interested in the second proposition as to the first ; for if navigation of a river, or any other object, to Congress have the power within one State, take it under their own jurisdiction and control, they must of course have it where two are by an agreement or compact between them concerred.
with the consent of Congress ; as much so as In order to understand the argument in
it would be under that of one if it was con
fined exclusively to one instead of extending support of this second proposition, and the
to two." commentary we shall make upon it, it is proper that we should quote at length the My main purpose, in reference to these two following paragraphs from the Re- | two paragraphs, is to discuss them toport:-
gether, with a view to the effect of the con
nection of the two prohibitory clauses of “ The case of a river whose navigable waters are contined to two States, whether dividing or
the Constitution referred to in them, to flowing through them, requires more particular
support the proposition under consideration. and full explanation. The provision of the
In the second paragraph, then, the auConstitution, already cited, which exempts ves
thor asserts, that in order to understand sels bound to or from one State from entering, the proper meaning of the clause, “No clearing, or paying duties in another, would State shall, without the consent of Conmake all streams, in effect, common highways
gress, enter into any agreement or comof all the States, and bring them exclusively under the control of the Federal Government,
pact with another State,” and its bearing as far as the power to regulate commerce
upon the point under consideration, it is among the States is concerned-as much so,
necessary to consider it in connection with indeed, as the Mississippi itself--were it not for another provision of the Constitution, proanother provision in the same instrument. viding that “no State shall enter into any
treaty, alliance, or confederation.” The two / in the first class of cases, the distinction clauses considered together, then, are thus: must presuppose that the clause was inFist, “ No State shall enter into any serted with a sole reference to two States, treaty, alliance, or confederation.” Second, and of course can be applicable to no pos“ No State shall, without the consent of sible case that shall be predicated of them. Congress, enter into any agreement or This distinction is evidently deduced by compact with another State.” Now, the the Report from such a reading of the connection of these two clauses together, two clauses as makes their terms reciprohas, as is declared in the Report, a two-cally equivalent, and their objects identical. fold object: first, the intention of the framers Now we deny the correctness of this readof the Constitution for the insertion of ing, and maintain that the terms, “ treaty, the clause in question, (that is, the first of alliance and confederation,” in the one the clauses above quoted ;) and second, to clause, have an entirely different meaning, show the bearing of that clause on the and refer to entirely different subjects point under consideration.
matter, from the terms “ agreement and As to the first of these objects, it will compact” in the other. We maintain that a be observed, that the reason, and the sole larger meaning and application were inreason, given by the Report for the inser- tended by the former terms than by the tion of the last clause as above quoted, was latter; that the terms “compact and agreeto prevent the elusion of the first. This ment,” referred to minor matters of arreason, of course, logically implies that the rangements between the States, such as first clause comprehended all that was ex- | regulations of mutual police, boundary, jupressed in the second, but which, not being risdiction, &c.; and that the terms “ treaty, expressed in the first, might be eluded. But alliance and confederation,” referred to the this reason could not be the true one ; for higher negotiations of international diploif it were, the last clause would simply macy; the first being permitted with the say, “No State shall enter into any agree-consent of Congress, and the last absoment or compact with another,” without lutely prohibited with or without such adding, “ without the consent of Congress.” consent. This addition carries the clause beyond the That the reading of the two clauses here reason asserted for the introduction of it, suggested is the true one, appears to us and of course indicates some other reason to be sustained by several obvious considfor it than that affirmed by the Report. | erations. In the first place, we would say, What that other reason is, will appear that the detached form in which the two directly.
clauses are presented, affords the strongest As to the second object of the connec- prima facie evidence that they referred to tion of the two clauses, viz., to show the entirely different subjects; and that if the bearing of the last clause upon the point one had been intended as a qualification of under consideration, it will be borne in the other, it would have been so expressed. mind that the “point under consideration” The distinction, too, between foreign relais, that the constitutional power of Con- tions and home relations, as predicable of gress does not extend to such rivers as are the several States, was a sufficient reason confined to two States; and the inquiry is for the insertion of the two clauses : the as to the “ bearing” upon that “point” of first clause using terms suited to the dithe clause, “No State shall, without the plomatic dignity, and the last clause, the consent of Congress, enter into any agree-domestic simplicity, of the classes of subment or compact with another State.” jects to which they respectively referred. Now, it is evidently the meaning of the And then, again, the qualification, “ with Report, in the connection of the two the consent of Congress,” in the one clause, clauses, that this “ bearing" can have no and the absence of that or any other qualiother relation to this “ point” than as it | fication in the other, cannot leave a doubt refers to the distinction between the power that entirely different topics were in the of Congress over rivers bordered by three minds of the Convention, in the contemplaStates, and the want of that power over tion of the two clauses, respectively. The rivers confined to two. For, as the Re- matter is made still clearer by considering port assumes the existence of the power the wisdom of the distinction between the
unqualified prohibition in the one clause, / rest. But there are some matters in the and the only qualified prohibition in the second paragraph,* standing separately other: the first putting negotiations for treaties, alliances and confederations-im
* There is also a matter in the first paragraph,
which, though not, as we conceive,vital to thediscusporting the relations of peace, war, and
sion, we still regard as worthy of attention, either as the largest range of international politics conveying a doctrine singularly erroneous, or as beentirely beyond the power of the States,
traying a looseness of thought or a slovenliness of
expression, quite discreditable, in my judgment, to even with the consent of Congress; the the author of the Report. A careful analysis of this last, leaving smaller matters-embracing first paragraph gives the following proposition, viz.,
that the provision of the Constitution exempling topics of public convenience, boundaries,
vessels bound to or from one State, from entering, local jurisdictions, and the like--subjects to clearing or paying duties in another, would bring
all such streams as are confined to two States exclucompact or agreement with the consent of
sively under the control of the Federal Government, Congress. The first were the subjects of as much so as the Mississippi itself, so far as the unqualified prohibition, because they were power to regulate commerce is concerned, were it
not for another provision of the Constitution, proof a class of which it could never be viding that “no State shall, without the consent of proper that any State should take cog Congress, enter into any agreement or compact
with another State.” Now the author may not nizance. The last were the subjects of
mean what this language clearly imports ; but, if gunlified prohibition, because they were of a he does, it appears to me to contain a most extraorclass upon which it might be highly con
dinary statement, leading to a result more extraor
dinary still; for, unless we greatly misapprehend that venient that the States should be at liberty language, such result must be in direct conflict with to negotiate, provided the cases made were the previous proposition of the Report, claiming the
control of the Mississippi and all its navigable tribusuch as should be justly entitled to the
taries, bordered by three States, as coming within assent of Congress.
the power of Congress "10 regulate commerce." Now, this reading of the two clauses
This will appear from what follows.
We understand the statement, then, to affirm two makes them entirely independent of each things: other; and, while it presents in them two
First, that were it not for the prohibitory clause
quoted in it, Congress would have the exclusive substantive and distinct matters, each of control over such streams as are bordered by only moment, for the Constitution to act upon, two States; and, second, that this control would
come, not from the power to regulate commerce, and furnishes the true reason for the in
but from the clause exempting vessels going from sertion of the “agreement and compact " one State to another, from payment of duties, &c. clause, it at the same time vindicates the And as the control thus ascribed to Congress, and
so originating, would be possessed, as the proposiConvention from the imputation of an after tion declares, to the same extent as over the thought and repetition in one clause, to re
Mississippi itself,” we might suppose, without any.
thing furiher, that it was intended to ascribe the lieve a slovenly omission or imperfection in
power of controlling the Mississippi itself to the exanother.
empting clause also. But it will be remembered
that, in a preceding part of the Report, the control But, if these views be just ; if there be
over the Mississippi is ascribed to the power to nothing in the reason presented by the Re regulate commerce, without any allusion to the export for the insertion of the clause in ques empting clause. Supposing the Report to mean
this, and supposing also the prohibitory clause above tion; and if it be true, that the two pro
quoted out of the way, the proposition makes the hibitory clauses refer to entirely different control which Congress would, in such case, have objects, and have no more relation to each
over rivers confined to two States, to stand upon
different ground from that which it has over rivers other than any other two independent extending to more States than two. And hence, as clauses in the Constitution; then it is clear,
the proposition, in reference to the power in the
first class of cases, assumes the exempting clause as that their connection together in this dis
its proper source, and in connection with it, specussion sheds no light upon the matter cifically bases the distinction, giving the control of
Congress over rivers bordered by three States, on which the Report intends to illustrate, and
the one hand, and denying that control over rivers fails to establish the proposition which it confined to two States, on the other, upon the sole affirms.
ground of the clause that "no State shall, without
the consent of Congress, enter into an agree. We have thus far discussed, together, the ment or compact with another State," it must foltwo paragraphs quoted from the Report, low, as the opinion of the Report, that, in the ab
sence of both the exempting and prohibitory clauses with reference to the effect of the connec from the Corstitution, the power of Congress to tion of the two prohibitory clauses of the regulate commerce would extend only to rivers Constitution referred to in them, upon the
bordered by three States, 10 the exclusion of those
confined to two or only one. Now, as this disproposition under consideration ; and here, tinction precedes all discussion of the effect of either perhaps, so far as the repetition of that
the exempting or prohibitory clauses, we have a
right to demand, especially of a strict constructionist, proposition is concerned, we might safely that he show us that clause of the Constitution by