Page:Debates in the Several State Conventions, v4.djvu/485

1817.] The legislative powers vested in Congress are specified and enumerated in the 8th section of the 1st article of the Constitution; and it does not appear that the power, proposed to be exercised by the bill, is among the enumerated powers; or that it falls, by any just interpretation, within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the government of the United States.

The power to regulate commerce among the several states cannot include a power to construct roads and canals, and to improve the navigation of watercourses, in order to facilitate, promote, and secure, such a commerce, without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress. To refer the power in question to the clause "to provide for the common defence and general welfare," would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power or legislation, instead of the defined and limited one hitherto understood to belong to them—the terms, "the common defence and general welfare," embracing every object and act within the purview of the legislative trust. It would have the effect of subjecting both the Constitution and laws of the several states, in all cases not specifically exempted, to be superseded by laws of Congress; it being expressly declared, "that the Constitution of the United States, and laws made in pursuance thereof, shall be the supreme law of the land; and the judges of every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the general and the state governments; inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power "to provide for the common defence and general welfare" to cases which are to be provided for by the expenditure of money, would still leave within the legislative power of Congress all the great and most important measures of government; money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, to improve the navigation of watercourses, with the train of powers incident thereto, be not possessed by Congress, the assent of the states, in the mode provided in the bill, cannot confer the power. The only cases in which the consent and cession of particular states can extend the power of Congress, are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals, and the improved navigation of watercourses, and that a power in the national legislature to provide for them might be exercised with signal advantage to the general prosperity; but, seeing that such a power is not expressly given to the Constitution, and believing that it cannot be deduced from any part of it without an inadmissible latitude of construction, and a reliance on insufficient precedents; believing, also, that the permanent success of the Constitution depends on a definitive partition of powers