Article 1, Section 8, Clause 3 (Commerce)

Document 21

James Madison to Professor Davis

1832Letters 4:247, 251--54

It deserves particular attention, that the Congress which first met contained sixteen members, eight of them in the House of Representatives, fresh from the Convention which framed the Constitution, and a considerable number who had been members of the State Conventions which had adopted it, taken as well from the party which opposed as from those who had espoused its adoption. Yet it appears from the debates in the House of Representatives, (those in the Senate not having been taken,) that not a doubt was started of the power of Congress to impose duties on imports for the encouragement of domestic manufactures.

. . . . .

The incapacity of the States separately to regulate their foreign commerce was fully illustrated by an experience which was well known to the Federal Convention when forming the Constitution. It was well known that the incapacity gave a primary and powerful impulse to the transfer of the power to a common authority capable of exercising it with effect. . . .

New York, Pennsylvania, Rhode Island, and Virginia, previous to the establishment of the present Constitution, had opportunities of taxing the consumption of their neighbours, and the exasperating effect on them formed a conspicuous chapter in the history of the period. The grievance would now be extended to the inland States, which necessarily receive their foreign supplies through the maritime States, and would be heard in a voice to which a deaf ear could not be turned.

The condition of the inland States is of itself a sufficient proof that it could not be the intention of those who framed the Constitution to substitute for a power in Congress to impose a protective tariff, a power merely to permit the States individually to do it. Although the present inland States were not then in existence, it could not escape foresight that it would soon, and from time to time, be the case. Kentucky was then known to be making ready to be an independent State, and to become a member of the Confederacy. What is now Tennessee was marked by decided circumstances for the same distinction. On the north side of the Ohio new States were in embryo under the arrangements and auspices of the Revolutionary Congress, and it was manifest, that within the Federal domain others would be added to the Federal family.

As the anticipated States would be without ports for foreign commerce, it would be a mockery to provide for them a permit to impose duties on imports or exports in favor of manufactures, and the mockery would be the greater as the obstructions and difficulties in the way of their bulky exports might the sooner require domestic substitutes for imports; and a protection for the substitutes, by commercial regulations, which could not avail if not general in their operation and enforced by a general authority. . . .

But those who regard the permission grantable in section ten, article one, to the States to impose duties on foreign commerce, as an intended substitute for a general power in Congress, do not reflect that the object of the permission, qualified as it is, might be less inconsistently explained by supposing it a concurrent or supplemental power, than by supposing it a substituted power.

Finally, it cannot be alleged that the encouragement of manufactures permissible to the States by duties on foreign commerce, is to be regarded as an incident to duties imposed for revenue. Such a view of the section is barred by the fact that revenue cannot be the object of the State, the duties accruing, not to the State, but to the United States. The duties also would even diminish, not increase, the gain of the federal treasury, by diminishing the consumption of imports within the States imposing the duties, and, of course, the aggregate revenue of the United States. The revenue, whatever it might be, could only be regarded as an incident to the manufacturing object, not this to the revenue. . . .

Attempts have been made to show, from the journal of the Convention of 1787, that it was intended to withhold from Congress a power to protect manufactures by commercial regulations. The intention is inferred from the rejection or not adopting of particular propositions which embraced a power to encourage them. But, without knowing the reasons for the votes in those cases, no such inference can be sustained. The propositions might be disapproved because they were in a bad form or not in order; because they blended other powers with the particular power in question; or because the object had been, or would be, elsewhere provided for. No one acquainted with the proceedings of deliberative bodies can have failed to notice the frequent uncertainty of inferences from a record of naked votes. It has been with some surprise, that a failure or final omission of a proposition "to establish public institutions, rewards, and immunities for the promotion of agriculture, commerce, and manufactures," should have led to the conclusion that the Convention meant to exclude from the federal power over commerce regulations encouraging domestic manufactures. (See Mr. Crawford's letter to Mr. Dickerson, in the National Intelligencer of ------.) Surely no disregard of a proposition embracing public institutions, rewards, and immunities for the promotion of agriculture, commerce, and manufactures, could be an evidence of a refusal to encourage the particular object of manufactures, by the particular mode of duties or restrictions on rival imports. In expounding the Constitution and deducing the intention of its framers, it should never be forgotten, that the great object of the Convention was to provide, by a new Constitution, a remedy for the defects of the existing one; that among these defects was that of a power to regulate foreign commerce; that in all nations this regulating power embraced the protection of domestic manufactures by duties and restrictions on imports; that the States had tried in vain to make use of the power, while it remained with them; and that, if taken from them and transferred to the Federal Government, with an exception of the power to encourage domestic manufactures, the American people, let it be repeated, present the solitary and strange spectacle of a nation disarming itself of a power exercised by every nation as a shield against the effect of the power as used by other nations. Who will say that such considerations as these are not among the best keys that can be applied to the text of the Constitution? and infinitely better keys than unexplained votes cited from the records of the Convention.

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 3 (Commerce), Document 21
The University of Chicago Press

Letters and Other Writings of James Madison. Published by order of Congress. 4 vols. Philadelphia: J. B. Lippincott & Co., 1865.

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