« PreviousContinue »
fectly free and unlimited commerce among the States, than the liberty of entering any river or port of any State, without liability to duty on imports and exports, or to discriminating navigation charges 2 Vessels go from one State to another, through any river that may be navigable, whether running in one State only, or in many, and return again—going as they please, and carrying what they please, either way. What is this but the freest commerce among the States? and, in view of it, of what importance would be the rule, that rivers running within a single State are under the exclusive control of that State 2 Such control, at the most, could be only nominal. Nay, it would not be control, but, in fact, a liability on the part of such State to keep such rivers in navigable order, at its own expense, if kept in such order at all.
So much for the first proposition and the reasons offered to support it. We think we have shown the reasons to be utterly destitute of substance, and of course that the proposition, at least as depending upon these reasons, cannot be sustained.
The second proposition is, that the constitutional power of Congress over river obstructions, does not extend to such rivers as are confined to two States, whether dividing or running through them. We would here remark, that the whole of the preceding argument is as applicable to this second proposition as to the first; for if Congress have the power within one State, they must of course have it where two are concerned.
In order to understand the argument in support of this second proposition, and the commentary we shall make upon it, it is proper that we should quote at length the two following paragraphs from the Report:—
“The case of a river whose navigable waters are confined to two States, whether dividing or flowing through them, requires more particular and full explanation. The provision of the Constitution, already cited, which exempts vessels bound to or from one State from entering, clearing, or paying duties in another, would make all streams, in effect, common highways of all the States, and bring them exclusively under the control of the Federal Government, as far as the power to regulate commerce among the States is concerned—as much so, indeed, as the Mississippi itself—were it not for another provision in the same instrument.
They (the Committee) allude to that which provides that no State shall, without the consent of Congress, enter into any agreement or compact with another State; and which of course permits (with such consent) one State to enter into compact or agreement with another.
“To understand the intention of the framers of the Constitution for inserting this provision, and its bearing on the point under consideration, it is necessary to view it in connection with another provision of the instrument alread cited. They (the Committee) refer to that . prohibits the States from entering into any treaty, alliance, or confederation in any case whatever; plainly because it would be both dangerous and inconsistent with their federal relations to permit it. In order to prevent so important a provision from being eluded, the provision immediately under consideration was inserted, prohibiting the States from entering into agreements or compacts in any case whatever, except one State with another State, or with a foreign power; and to prevent the abuse even of that limited power, the consent of Congress is required. Such is the prohibition and the reason for it. The reason for the exception is, that without it the prohibition would substitute the federal authority for that of the States, for the adjustment and regulation of all the various subjects in which the several States may have a mutual interest in adjusting and regulating, including such as the one under consideration; and thereby would give greater extension and minuteness to the authority of the General Government than was desirable or consistent with the objects for which it was instituted. Under the exception, it is left to the States, when only two are interested in the navigation of a river, or any other object, to take it under their own jurisdiction and control, by an agreement or compact between them with the consent of Congress; as much so as it would be under that of one if it was confined exclusively to one instead of extending to two.”
My main purpose, in reference to these two paragraphs, is to discuss them together, with a view to the effect of the connection of the two prohibitory clauses of the Constitution referred to in them, to support the proposition under consideration.
In the second paragraph, then, the author asserts, that in order to understand the proper meaning of the clause, “No State shall, without the consent of Congress, enter into any agreement or compact with another State,” and its bearing upon the point under consideration, it is necessary to consider it in connection with another provision of the Constitution, providing that “no State shall enter into any
treaty, alliance, or confederation.” The two clauses considered together, then, are thus: Fist, “No State shall enter into any treaty, alliance, or confederation.” Second, “No State shall, without the consent of Congress, enter into any agreement or compact with another State.” Now, the connection of these two clauses together, has, as is declared in the Report, a twofold object: first, the intention of the framers of the Constitution for the insertion of the clause in question, (that is, the first of the clauses above quoted;) and second, to show the bearing of that clause on the point under consideration. As to the first of these objects, it will be observed, that the reason, and the sole reason, given by the Report for the insertion of the last clause as above quoted, was to prevent the elusion of the first. This reason, of course, logically implies that the first clause comprehended all that was expressed in the second, but which, not being expressed in the first, might be eluded. But this reason could not be the true one ; for if it were, the last clause would simply say, “No State shall enter into any agreement or compact with another,” without adding, “without the consent of Congress.” This addition carries the clause beyond the reason asserted for the introduction of it, and of course indicates some other reason for it than that affirmed by the Report. What that other reason is, will appear directly. As to the second object of the connection of the two clauses, viz., to show the bearing of the last clause upon the point under consideration, it will be borne in mind that the “point under consideration” is, that the constitutional power of Congress does not extend to such rivers as are confined to two States; and the inquiry is as to the “bearing” upon that “point” of the clause, “No State shall, without the consent of Congress, enter into any agreement or compact with another State.” Now, it is evidently the meaning of the Report, in the connection of the two clauses, that this “bearing” can have no other relation to this “point” than as it refers to the distinction between the power of Congress over rivers bordered by three States, and the want of that power over rivers confined to two. For, as the Report assumes the existence of the power
in the first class of cases, the distinction must presuppose that the clause was inserted with a sole reference to two States, and of course can be applicable to no possible case that shall be predicated of them. This distinction is evidently deduced by the Report from such a reading of the two clauses as makes their terms reciprocally equivalent, and their objects identical. Now we deny the correctness of this reading, and maintain that the terms, “treaty, alliance and confederation,” in the one clause, have an entirely different meaning, and refer to entirely different subjects matter, from the terms “agreement and compact” in the other. We maintain that a larger meaning and application were intended by the former terms than by the latter; that the terms “compact and agreement,” referred to minor matters of arrangements between the States, such as regulations of mutual police, boundary, jurisdiction, &c.; and that the terms “treaty, alliance and confederation,” referred to the higher negotiations of international diplomacy; the first being permitted with the consent of Congress, and the last absolutely prohibited with or without such consent. That the reading of the two clauses here suggested is the true one, appears to us to be sustained by several obvious considerations. In the first place, we would say, that the detached form in which the two clauses are presented, affords the strongest prima facie evidence that they referred to entirely different subjects; and that if the one had been intended as a qualification of the other, it would have been so expressed. The distinction, too, between foreign relations and home relations, as predicable of the several States, was a sufficient reason for the insertion of the two clauses: the first clause using terms suited to the diplomatic dignity, and the last clause, the domestic simplicity, of the classes of subjects to which they respectively referred. And then, again, the qualification, “with the consent of Congress,” in the one clause, and the absence of that or any other qualification in the other, cannot leave a doubt that entirely different topics were in the minds of the Convention, in the contemplation of the two clauses, respectively. The matter is made still clearer by considering the wisdom of the distinction between the unqualified prohibition in the one clause, and the only qualified prohibition in the other: the first putting negotiations for treaties, alliances and confederations—importing the relations of peace, war, and the largest range of international politics— entirely beyond the power of the States, even with the consent of Congress; the last, leaving smaller matters—embracing topics of public convenience, boundaries, local jurisdictions, and the like—subjects to compact or agreement with the consent of Congress. The first were the subjects of unqualified prohibition, because they were of a class of which it could never be proper that any State should take cogmizance. The last were the subjects of qualified prohibition, because they were of a class upon which it might be highly convenient that the States should be at liberty to negotiate, provided the cases made were such as should be justly entitled to the assent of Congress. Now, this reading of the two clauses makes them entirely independent of each other; and, while it presents in them two substantive and distinct matters, each of moment, for the Constitution to act upon, and furnishes the true reason for the insertion of the “agreement and compact” clause, it at the same time windicates the Convention from the imputation of an afterthought and repetition in one clause, to relieve a slovenly omission or imperfection in another. But, if these views be just; if there be nothing in the reason presented by the Report for the insertion of the clause in question; and if it be true, that the two prohibitory clauses refer to entirely different objects, and have no more relation to each other than any other two independent clauses in the Constitution; then it is clear, that their connection together in this discussion sheds no light upon the matter which the Report intends to illustrate, and fails to establish the proposition which it affirms. We have thus far discussed, together, the two paragraphs quoted from the Report, with reference to the effect of the connection of the two prohibitory clauses of the Constitution referred to in them, upon the proposition under consideration; and here, perhaps, so far as the repetition of that proposition is concerned, we might safely
rest. But there are some matters in the second paragraph,” standing separately
* There is also a matter in the first paragraph, which, though not, as we conceive, vital to the discussion, we still regard as worthy of attention, either as conveying a doctrine singularly erroneous, or as betraying a looseness of thought or a slovenliness of expression, quite discreditable, in my judgment, to the author of the Report. A careful analysis of this first paragraph gives the following proposition, viz., that the provision of the Constitution exempting vessels bound to or from one State, from entering, clearing or paying duties in another, would bring all such streams as are confined to two States exclusively under the control of the Federal Government, as much so as the Mississippi itself, so far as the power to regulate commerce is concerned, were it not for another provision of the Constitution, providing that “no State shall, without the consent of Congress, enter into any agreement or compact with another State.” Now the author may not mean what this language clearly imports; but, if he does, it appears to me to contain a most extraordinary statement, leading to a result more extraordinary still ; for, unless we greatly misapprehend that language, such result must be in direct conflict with the previous proposition of the Report, claiming the control of the Mississippi and all its navigable tributaries, bordered by three States, as coming within the power of Congress “to regulate commerce.” This will appear from what follows.
We understand the statement, then, to affirm two from the first, which we deem vital to this discussion, and which we cannot pass over without notice. Thus, in the first place, the Report says, “In order to prevent so important a provision from being eluded, (that is, the provision that “no State should enter into any treaty, alliance or confederation,”) the provision immediately under consideration was inserted, prohibiting the States from entering into agreements or compacts in any case whatever, except one State with another State, or with a foreign power; and to prevent the abuse even of that limited power, the consent of Congress is required.” Now, here is a jumble and confusion of words and ideas, utterly amazing in a mind so remarkable for precision as Mr. Calhoun's. The tert of the Constitution is, “No State shall, without the consent of Congress, enter into any agreement or compact with another State or with a foreign power.” Mr. Calhoun's interpretation or paraphrase of this text is, that the States are prohibited from entering into any agreements or compacts in any case whatever, “except one State with another State, or with a foreign power.” This exception in favor of “one State with another State,” &c., he calls a “limited power,” to prevent the abuse of which the “consent of Congress" is required. The text declares a prohibition with a qualification, viz., the consent of Congress. The interpretation declares a limited power with a restraint, viz., the consent of Congress; and what is very curious is, that this very element in the text, viz., the consent of Congress, which imposes this restraint, is the very source from which the power restrained is derived. For, take away from the text the phrase, “without the consent
}. that were it not for the prohibitory clause quoted in it, Congress would have the exclusive control over such streams as are bordered by only two States; and, second, that this control would come, not from the power to regulate commerce, but from the clause exempting vessels going from one State to another, from payment ..., &c. And as the control thus ascribed to Congress, and so originating, would be possessed, as the proposition declares, to the same extent as over “the Mississippi itself,” we might suppose, without anything further, that it was intended to ascribe the power of controlling the Mississippi itself to the ex: empting clause also. But it ...}} be remembered that, in a preceding part of the Report, the control over, the Mississippi is ascribed to the power to regulate commerce, without any allusion to the exempting, clause: Supposing the Report to mean this, and supposing also the prohibitory clause above quoted out of the way, the proposition makes the control which Congress would, in such case, have over river, confined to two States, to stand upon different ground from that which it has over rivers extending to more States than two. And hence, as the proposition, in reference to the power in the first class of cases, assumes the exempting clause as its proper source, and in connection with it, specifically bases the distinction, giving the control of Congress over rivers bordered by three States, on the one hand, and denying that control over rivers confined to two States, on the other, upon the sole
round of the clause that “no State shall, without the consent of Congress, enter into an agreement or compact * another State,” it must follow, as the opinion of the Report, that, in the absence of both the exempting and prohibitory clauses from the Constitution, the power of Congress to regulate commerce would extend only to rivers bordered by three States, to the exclusion of those confined to two or only one. Now, as this distinction precedes all discussion of the effect of either the exempting, or prohibitory clauses, we have a right to demand, especially of a strict constructionist, that he show us that clause of the Constitution by
of Congress,” and you have the naked unqualified prohibition thus: “No State shall enter into any agreement or compact with another.” Take from the text that phrase, and Mr. Calhoun would hardly be supposed capable of the absurdity of construing the remainder anything but an absolute prohibition, much less a limited power. And yet, strange as it may seem, he has, in effect, committed this absurdity, by separating, in his paraphrase, that part of the sentence which speaks of the prohibition— with one exception, creating a limited power—from that part which refers to the consent of Congress as a restraint, to prevent that limited power from being abused. He has, in effect, declared, that the words, “No State shall enter into any agreement or compact with another State,” convey a grant of power(s), “to prevent the abuse of which, the consent of Congress is reuired.”
But the whole idea of a grant of limited power, or powerin any sense, is quite absurd. It must be observed, that the terms of the clause are prohibitory and not permissive. A State shall not do a certain thing, without consent of Congress—not a State may do a certain thing, with such consent. The purpose of the clause is to deny a power, not to grant one; to prevent something from being done, not to promote it; and the consent of Congress, if given, must be considered as given against a rule and not as fulfilling one. Hence the power which a State might exercise with the consent of Congress, is, to all practical intents, dead, until such consent be asked and given; and therefore the clause, until such consent be asked, in a given case, must be regarded as though it were not in the Constitution. Now the whole assumption of the Report assumes the reverse of this; for, in making the qualified prohibition of two States to enter into an agreement, in relation to a river confined within them, to work the effect of taking from Congress all power over such river, is in effect to assume that such qualified prohibition was in fact no prohibition, but an affirmative power; that the prohibition at most was merely nominal; as though the consent would certainly be asked if it were wanted, and granted if it were asked. The case would be different if the power, instead of being prohibited without the consent of Congress, had been given unless prohibited by Congress. In the last case, a State might act unless stopped ; in the first, it could not act unless permitted. The first case might of itself furnish no absolute refutation of the proposition of the Report; the last, in our judgment, if there be any such thing as inconsistency of ideas, makes it impossible that the proposition should be true. To conclude, in a word, this point in the discussion, our proposition would be this: that the power to “enter into treaties, alliances and confederations,” and the power “to make agreements and compacts,” both existed in the States anterior to the Constitution; but that instrument prohibited the former absolutely, and the latter, except when all the States, through Congress, should assent. But something worthy of attention still remains in the paragraph in hand. The Committee having found an exception to the prohibition, in favor of “one State with another State,” feel bound to give a reason for it. That reason is, that, without the exception, “the prohibition would substitute the federal authority for that of the States for the adjustment and regulation of all the various subjects in which the several States may have an interestin adjusting and regulating, including such as the one under consideration, and thereby would give greater extension and minuteness to the authority of the Federal Government, than was desirable or consistent with the objects for which it was instituted.” This language is cool and oracular—uttered, evidently, as though felt to be undeniable, and intended clearly to be impressed as by authority. Now, we affirm every syllable of it to be
which, expressly or by implication, that distinction
not, of course, have thought of ; and yet, it is be-
utterly gratuitous; without a word in the Constitution to sustain it, or a thought in the necessity of the case to suggest it. It defines what is “desirable or consistent with the objects for which the Federal Government was instituted,” in reference to its “authority,” by a purely arbitrary rule, and one, à its application to two States as distinguished from three or more, as the objects of the exception,) without even the semblance of a reason. If the argument from “greater extension and minuteness,” had any force, it must apply to subjects matter of authority, and not to the parties, whether two States or three, that might be interersted in them. For nothing can be clearer, than that the authority of the Federal Government, in the adjusting and regulating of various objects “in which the several States may have a mutual interest,” may be quite as important, in given instances, in its exercise upon two States as three; and any discrimination between them, such as the Report proposes, might, and probably would, often work the rankest injustice, if not the greatest danger. But as the proposition is offered without support, I may leave it, without further comment, to fall by its own weight. A single other matter in the paragraph under consideration, is entitled to notice. “Under the exception,” the paragraph goes on to say, “it is left to the States, when only two are interested in the navigation of a river, or on any other subject, to take it under their own exclusive jurisdiction and control by an agreement or compact between them, with the consent of Congress.” With the consent of Congress! But suppose this consent in a given case should be refused ? A work of vital moment to the two States—perhaps to the Union— goes unaccomplished. The States cannot do it, because Congress will not permit them to make a compact; and Congress cannot do it, because their power to permit the States to do it operates a prohibition to themselves. There can be no escape from this dilemma, except by assuming that the consent of Congress would be always, in all cases, certain; which would be, virtually, to annihilate the clause in the Constitution that requires it. This effect must, of course, make such an assumption inadmissible in practice, as it certainly is in theory. Now, can a result such as