James Madison Papers

James Madison: Notes on Letters to Mr. Cabell, 30 October 1828


It does not appear that any of the strictures on the letters from J. M. to J. C. C. have in the least invalidated the constitutionality of the power in Congress to favor domestic manufactures by regulating the commerce with foreign nations.

1. That this regulating power embraces the object remains fully sustained by the uncontested facts that it has been so understood and exercized by all commercial & manufacturing nations, particularly by G. B: nor is it any objection to the inference from it, that those nations, unlike the Congress of the U. S. had all other powers of Legislation as well as the power of regulating foreign commerce; Since this was the particular & appropriate power by which the encouragt of manufactures was effected.

2. It is equally a fact, that it was generally understood among the States, previous, to the establishment of the present Constitution of the U. S. that the encouragement of domestic manufactures by regulations of foreign commerce, particularly by duties & restrictions on foreign manufactures, was a legitimate & ordinary exercise of the power over foreign commerce; & that in transferring this power to the Legislature of the U. S. it was anticipated that it would be exercised more effectually than it could be by the States individually. [see Lloyds debates & other publications of the period. * see p. 5.

* It cannot be denied that a right power to vindicat<e> its commercial manufacturing & agricultural inter<ests> agst. unfriendly and unreciprocal policy, of other na<tions> belongs to every all nations, that it has belonged at all times to <the> U. S. as a nation; that previous to the present Federal C[on]stitution, the right existed in the Govts. of the individua[l] States, not in the Federal Govt.; that the want of such authority in the Fedl. Govt. was deeply felt & deplored, that a supply of this want, was generally and anxiously desired; as that the authority, has by the substituted Constitution of the Fedl. Govt. been expressly or virtually taken from the Individual States; so that if not transferred to the [ ] Federal Govt. it is lost & annihilated for the U. S. as a nation. Is not the presumption irresistible that it must have been the intention of those who framed & ratified the Constitution, to vest the authority in question, in the substituted Govt.? And does not every just rule of reasoning allow to a presumption, so violent, proportional < > in deciding on the question of such power in Congress; so as a source of power distinct from & additional to < > Constitutional source; but as a source of light and evidence as to the true meaning of the Constitution;

3. It is again a fact that the power was so exercized by the first Session of the first Congs: and by every succeeding Congs: with the sanction of every other branch of the Federal Govt: and with universal acquiescence, till a very late date. [see the messages of the Presidents & the Reports & letters of Mr. J____n]

4. That the surest & most recognized evidence of the meaning of a Constitution, as of a law, is furnished by the evils which were to be cured or the benefits to be obtain’d and by the immediate and long continued application of the meaning to these ends. This species of evidence < > in support of the power, in question; in a degree which can not be resisted without destroying all stability in Social Institutions, and all the advantages of known & certain rules of conduct in the intercourse of life.

5. Altho’ it might be too much to say that no case could arise, of a character over-ruling the highest evidence of precedents & practice, in expounding a Constitution, it may be safely affirmed that no case wch. is not of a character far more exorbitant & ruinous than any now existing or that has occurred, can authorize a disregard of the precedents & practice which sanction the Constitutional power of Congress to encourage domestic manufactures, by regulations of foreign Commerce.

The importance of the question concerning the authority of precedents, in expounding the Constitution, as well as a law will justify a more full & exact view of it [in the subjoined note] See letter of J. M. to C. J Ingersoll on the subject of the Bank

It has been objected to the encouragemt. of domestic Manufes. by a tariff on imported ones, that duties and imposts are in the clause, specifying the sources of revenue, and therefore can not be applied to the encouragt. of Manufs. when not a source of revenue.

But 1. It does not follow from the applicability of duties & imposts, under one clause for one usual purpose, that they are excluded from any applicability, under another clause, to another purpose also requiring them, & to which they have also been usually applied. 2. A history of that clause, as traced in the printed Journal of the Fedl. Convention, will throw light on the subject. See letter of J M. to A Stevenson

It appears that the clause as it originally stood simply expressed "a power to lay taxes, duties, imposts & excises," without pointing out the objects; and of course leaving them applicable in carrying into effect, the other specified powers It appears further That a solicitude to prevent any constructive danger to the validity of pub. debts contracted under the superseded form of Govt; led to the addition of the words to "pay the debts"

This phraseolog, having the appearance of an appropriation limited to the payment of debts, an express appropriation was added "for the expences of the Gov." &c.

But even this was considered as short of the objects for which taxes duties imposts & excises might be required; & the more comprehensive provision was made by substituting for "Expences of Govt"—the terms of the old confederation viz, "and provide for the C. D & G. W. making duties & imposts, as well as taxes & excises applicable not only to payment of debts, but to the Com. D. & Genl.

The question then is what is the import of that phrase, C. D & G. D in its actual connection. The import wch. Virginia has always asserted, and still contends for, is that they are explained & limited to the enumerated objects subjoined to them; among which objects is the regulation of foreign commerce. As far therefore as a tariff of duties is necessary & proper in regulating foreign commerce for any of the usual purposes of such reguln it may be imposed by Cong. & consequently for the purpose of encouraging manufaces wch. is a well known purpose for which duties & imposts have been usually employed.

This view of the clause providing for [ ] instead of interfering with or excluding the power of regulating foreign trade corroborates the rightful exercise of the power for the encouragement of domestic Manufactures.

It may be thought that the Constitution might easily have been made more explicit & precise in its meaning. But the same remark might be made on so many other parts of the Instrument, and indeed on so many parts of every instrument of a complex character, that if compleatly obviated it would swell every ¶ into a page & every page into a volume: and in so doing have the effect of multiplying topics for criticism & controversy.

The best reason to be assigned, in this case, for not having made the Const: more free from a charge of uncertainty in its meaning is believed to be that it was not suspected that any such charge would ever take place: and it appears that no such charge did take place during the early period of the Constitution, when the meaning of its authors, cd. be best ascertained; nor untill many of the cotemporary lights had in the lapse of time been extinguished. How often does it happen that a notoriety of intention, diminishes the caution agst. its being misunderstood, or doubted. What wd. be the effect of the Decln of Independence, or of the Virga. <Dec.> of rights if not expounded with reference to that view of < > meang.

Those who assert that the encouragement of manufactures is not within the s[cope] of the power to regulate foreign commerce, and that a tariff is exclusively appropriated to revenue feel the difficulty of finding authority, for objects which they can not admit to be unprovided for by the Constitution; such as ensuring internal supplies of necessary articles of defence, the countervailing regulations of foreign Countries, &c unjust & injurious to our navigation or our agricultural produ[ce]. To bring these objects within the Constitul. power of Congress, they are obliged to give to the power "to regulate foreign commerce," an extent that at the same time necessarily embraces the encouragement of manufactures, and how indeed is it possible to suppose, that a tariff is applicable to the extorting from foreign powers a reciprocity of privileges, and not applicable to the encouragement of manufactures, an object to which it has been far more frequently applied.

Draft (DLC); a printed version of the letter [not the Notes, apparently], from the Virginia Advocate, with a 3., 4., 5., and 6. not on the JM draft; printed version [evidently] from a Richmond newspaper (ViU).

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