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1808 interest than that of the constitutionality of the embargo. The subject had already been discussed in Congress, and had called out a difference of opinion. There, Randolph argued against the constitutionality in a speech never reported, which turned on the distinction between regulating commerce and destroying it; between a restriction limited in time and scope, and an interdict absolute and permanent. The opponents of the embargo system, both Federalists and Republicans, took the same ground. The Constitution, they said, empowered Congress "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes;" but no one ever supposed it to grant Congress the power "to prohibit commerce with foreign nations, and among the several States, and with the Indian tribes." Had such words been employed, the Constitution could not have gained the vote of a single State.

History has nothing to do with law except to record the development of legal principles. The question whether the embargo was or was not Constitutional depended for an answer on the decision of Congress, President, and Judiciary, and the assent of the States. Whatever unanimous decision these political bodies might make, no matter how extravagant, was law until it should be reversed. No theory could control the meaning of the Constitution; but the relation between facts and theories was a political matter, and between the embargo and the old Virginia theory of the Constitution no relation could