COMMENTARIES.

CHAPTER XV.

POWER TO BORROW MONEY AND REGULATE COMMERCE.

§ 1054. HAVING finished this examination of the power of taxation, and of the accompanying restrictions and prohibitions, the other powers of Congress will be now examined in the order in which they stand in the eighth section.

§ 1055. The next is the power of Congress "to borrow money on the credit of the United States." This power seems indispensable to the sovereignty and existence of a national government. Even under the confederation this power was expressly delegated. The remark is unquestionably just, that it is a power inseparably connected with that of raising a revenue, and with the duty of protection, which that power imposes upon the general government. Though in times of profound peace it may not be ordinarily necessary to anticipate the revenues of a state; yet the experience of all nations must convince us, that the burden and expenses of one year, in time of war, may more than equal the ordinary revenue of ten years. Hence, a debt is almost unavoidable, when a nation is plunged into a state of war. The least burdensome mode of contracting a debt is by a loan. Indeed, this recourse becomes the more necessary, because the ordinary duties upon importations are subject to great diminution and fluctuations in times of war; and a resort to direct taxes for the whole supply would, under such circumstances, become oppressive and ruinous to the agricultural interests of the country.2 Even in times of peace exigencies may occur, which render a

1 Article 9.

2 1 Tuck. Black. Comm. App. 245, 246; The Federalist, No. 41. VOL. II. - 1

loan the most facile, economical, and ready means of supply, either to meet expenses, or to avert calamities, or to save the country from an undue depression of its staple productions. The government of the United States has, on several occasions in times of profound peace, obtained large loans, among which a striking illustration of the economy and convenience of such arrangements will be found in the creation of stock on the purchase of Louisiana. The power to borrow money by the United States cannot, as has been already seen, in any way be controlled, or interfered with by the States. The granting of the power is incompatible with any restraining or controlling power; and the declaration of supremacy in the Constituton is a declaration that no such restraining or controlling power shall be exercised.1 (a)

§ 1056. The next power of Congress is, "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

§ 1057. The want of this power, as has been already seen, was one of the leading defects of the confederation, and probably, as much as any one cause, conduced to the establishment of the Constitution.2(b) It is a power vital to the prosperity of the

1 Weston v. City Council of Charleston, 2 Peters's R. 449, 468.

2 Gibbons v. Ogden, 9 Wheat. R. 1, 225, Johnson, J.'s, opinion; Brown v. Maryland, 12 Wheat. R. 445, 446.

(a) See also Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Van Allen v. Assessors, 3 Wall. 573; People v. Commissioners, 4 Wall. 244; Bradley v. People, Id. 459; The Banks v. The Mayor, 7 Wall. 16; Bank v. Supervisors, Id. 26.

(b) "This government," said Mr. John Randolph, "grew out of the necessity, indispensable and unavoidable, in the circumstances of this country, of some general power, capable of regulating foreign commerce." "The proximate as well as the remote cause of the existence of the federal government was the regula tion of foreign commerce." "If the old Congress had possessed the power of laying a duty of ten per cent ad valorem on imports, this Constitution would never have been called into existence." Speech on Internal Improvements, Garland's Life

of Randolph, II. 205. "Maritime defence, commercial regulation, and national revenue were laid at the foundation of the national compact. They are its leading principles, and the cause of its existence. They were primary considerations, not only with the convention which framed the Constitution, but also with the people when they adopted it. They were the objects, and the only important objects, to which the States were confessedly incompetent. To effect these by the means of a national government was the constant, the prevalent, the exhaustless topic of those who favored the adoption of the Constitution." Life of Webster, by Curtis, I. 103. See also Id. II. 601, 602; Webster's Works, II. 174; IV. 492, 494; Life, &c., of Sam. Adams, by Welles, III.

249.

Union; and without it the government would scarcely deserve the name of a national government, and would soon sink into discredit and imbecility. It would stand as a mere shadow of sovereignty, to mock our hopes, and involve us in a common ruin.

§ 1058. The oppressed and degraded state of commerce, previous to the adoption of the Constitution, can scarcely be forgotten. It was regulated by foreign nations with a single view to \ their own interests; and our disunited efforts to counteract their restrictions were rendered impotent by a want of combination. Congress, indeed, possessed the power of making treaties; but the inability of the federal government to enforce them had become so apparent, as to render that power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving the control over this important subject to a single government. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the States. 2

§ 1059. But this subject has been already so much discussed, and the reasons for conferring the power so fully developed, that it seems unnecessary to dwell further upon its importance and necessity. In the convention there does not appear to have been any considerable (if, indeed, there was any) opposition to the grant of the power. It was reported in the first draft of the Constitution exactly as it now stands, except that the words, "and with the Indian tribes," were afterwards added; and it passed without a division.4

§ 1060. In considering this clause of the Constitution several important inquiries are presented. In the first place, what is the natural import of the terms; in the next place, how far the power is exclusive of that of the States; in the third place, to what purposes and for what objects the power may be constitu

1 The Federalist, Nos. 4, 7, 11, 22, 37.

2 Brown v. State of Maryland, 12 Wheat. R. 419, 445, 446; 1 Tuck. Black. Comm. App. 248 to 252; 1 Amer. Museum, 8, 272, 273, 281, 282, 288; 2 Amer. Museum, 263 to 276; Id. 371, 372; The Federalist, Nos. 7, 11, 22; Mr. Madison's Letter to Mr. Cabell, 18th Sept. 1828; 5 Marshall's Life of Washington, ch. 2, pp. 74 to 80; 2 Pitkin's Hist. 189, 192.

The Federalist, Nos. 7, 11, 12, 22, 41, 42.

4 Journal of Convention, 220, 257, 260, 356, 378.

tionally applied; and, in the fourth place, what are the true nature and extent of the power to regulate commerce with the Indian tribes.

§ 1061. In the first place, then, what is the constitutional meaning of the words, "to regulate commerce;" (a) for the

(a) Legislation authorizing the abating_bal R. Co. v. Husen, 95 U. S. 465 (statute of distilleries as nuisances is not within the meaning of this provision. Kidd v. Pearson, 128 U. S. 1. Nor is legislation which makes color blindness a disqualifi cation for service on railroads. Nashville