Article 1, Section 8, Clause 3 (Commerce)

Document 13

Livingston v. Van Ingen

Kent, Ch. J. The great point in this cause is, whether the several acts of the legislature which have been passed in favor of the appellants, are to be regarded as constitutional and binding.

This house, sitting in its judicial capacity as a court, has nothing to do with the policy or expediency of these laws. The only question here is, whether the legislature had authority to pass them. If we can satisfy ourselves upon this point, or, rather, unless we are fully persuaded that they are void, we are bound to obey them, and give them the requisite effect.

In the first place, the presumption must be admitted to be extremely strong in favor of their validity. There is no very obvious constitutional objection, or it would not so [Volume 2, Page 493] repeatedly have escaped the notice of the several branches of the government, when these acts were under consideration. There are, in the whole, five different statutes, passed in the years 1798, 1803, 1807, 1808 and 1811, all relating to one subject, and all granting or confirming to the appellants, or one of them, the exclusive privilege of using steam-boats upon the navigable waters of this state. The last act was passed after the right of the appellants was drawn into question, and made known to the legislature, and that act was, therefore, equivalent to a declaratory opinion of high authority, that the former laws were valid and constitutional. The act in the year 1798 was peculiarly calculated to awaken attention, as it was the first act that was passed upon the subject, after the adoption of the federal constitution, and it would naturally lead to a consideration of the power of the state to make such a grant. That act was, therefore, a legislative exposition given to the powers of the state governments, and there were circumstances existing at the time, which gave that exposition singular weight and importance. It was a new and original grant to one of the appellants, encouraging him, by the pledge of an exclusive privilege for twenty years, to engage, according to the language of the preamble to the statute, in the "uncertainty and hazard of a very expensive experiment." The legislature must have been clearly satisfied of their competency to make this pledge, or they acted with deception and injustice towards the individual on whose account it was made. There were members in that legislature, as well as in all the other departments of the government, who had been deeply concerned in the study of the constitution of the United States, and who were masters of all the critical discussions which had attended the interesting progress of its adoption. Several of them had been members of the state convention, and this was particularly the case with the exalted character, who at that time was chief magistrate of this state, (Mr. Jay,) and who was distinguished, as well in the council of revision, as elsewhere, for the scrupulous care and profound attention with which he examined every question of a constitutional nature.

After such a series of statutes, for the last fourteen years, and passed under such circumstances, it ought not to be any light or trivial difficulty that should induce us to set them aside. Unless the court should be able to vindicate itself by the soundest and most demonstrable argument, a decree prostrating all these laws would weaken, as I should apprehend, the authority and sanction of law in general, and impair, in some degree, the public confidence, either in the intelligence or integrity of the government.

But we are not to rest upon presumption alone; we must bring these laws to the test of a severer scrutiny.

If they are void, it must be because the people of this state have alienated to the government of the United States their whole original power over the subject matter of the grant. No one can entertain a doubt of a competent power existing in the legislature, prior to the adoption of the federal constitution. The capacity to grant separate and exclusive privileges appertains to every sovereign authority. It is a necessary attribute of every independent government. All our bank charters, turnpike, canal and bridge companies, ferries, markets, &c. are grants of exclusive privileges for beneficial public purposes. These grants may possibly be inexpedient or unwise, but that has nothing to do with the question of constitutional right. The legislative power, in a single, independent government, extends to every proper object of power, and is limited only by its own constitutional provisions, or by the fundamental principles of all government, and the unalienable rights of mankind. In the present case, the grant to the appellants took away no vested right. It interfered with no man's property. It left every citizen to enjoy all the rights of navigation, and all the use of the waters of this state which he before enjoyed. There was, then, no injustice, no violation of first principles, in a grant to the appellants, for a limited time, of the exclusive benefit of their own hazardous and expensive experiments. The first impression upon every unprejudiced mind would be, that there was justice and policy in the grant. Clearly, then, it is valid, unless the power to make it be taken away by the constitution of the United States.

We are not called upon to say affirmatively what powers have been granted to the general government, or to what extent. Those powers, whether express or implied, may be plenary and sovereign, in reference to the specified objects of them. They may even be liberally construed in furtherance of the great and essential ends of the government. To this doctrine I willingly accede. But the question here is, not what powers are granted to that government, but what powers are retained by this, and, particularly, whether the states have absolutely parted with their original power of granting such an exclusive privilege, as the one now before us. It does not follow, that because a given power is granted to congress, the states cannot exercise a similar power. We ought to bear in mind certain great rules or principles of construction peculiar to the case of a confederated government, and by attending to them in the examination of the subject, all our seeming difficulties will vanish.

When the people create a single, entire government, they grant at once all the rights of sovereignty. The powers granted are indefinite, and incapable of enumeration. Every thing is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people. But when a federal government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserved to the member that is not, either in express terms, or by necessary implication, taken away from them, and vested exclusively in the federal head. This rule has not only been acknowledged by the most intelligent friends to the constitution, but is plainly declared by the instrument itself. Congress have power to lay and collect taxes, duties and excises, but as these powers are not given exclusively, the states have a concurrent jurisdiction, and retain the same absolute powers of taxation which they possessed before the adoption of the constitution, except the power of laying an impost, which is expressly taken away. This very exception proves that, without it, the states would have retained the power of laying an impost; and it further implies, that in cases not excepted, the authority of the states remains unimpaired.

This principle might be illustrated by other instances of grants of power to congress with a prohibition to the states from exercising the like powers; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the tenth article of the amendments to the constitution. That article declares that "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The ratification of the constitution by the convention of this state, was made with the explanation and understanding, that "every power, jurisdiction and right, which was not clearly delegated to the general government, remained to the people of the several states, or to their respective state governments." There was a similar provision in the articles of confederation, and the principle results from the very nature of the federal government, which consists only of a defined portion of the undefined mass of sovereign power originally vested in the several members of the union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be any interruption of the public peace, in the concurrent exercise of those powers. The powers of the two governments are each supreme within their respective constitutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same object. The powers of the two governments cannot indeed be supreme over each other, for that would involve a contradiction. When those powers, therefore, come directly in contact, as when they are aimed at each other, or at one indivisible object, the power of the state is subordinate, and must yield. The legitimate exercise of the constitutional powers of the general government becomes the supreme law of the land, and the national judiciary is specially charged with the maintenance of that law, and this is the true and efficient power to preserve order, dependence and harmony in our complicated system of government. We have, then, nothing to do in the ordinary course of legislation, with the possible contingency of a collision, nor are we to embarrass ourselves in the anticipation of theoretical difficulties, than which nothing could, in general, be more fallacious. Such a doctrine would be constantly taxing our sagacity, to see whether the law might not contravene some future regulation of commerce, or some moneyed or some military operation of the United States. Our most simple municipal provisions would be enacted with diffidence, for fear we might involve ourselves, our citizens and our consciences in some case of usurpation. Fortunately, for the peace and happiness of this country, we have a plainer path to follow. We do not handle a work of such hazardous consequence. We are not always walking per ignes suppositos cineri doloso. Our safe rule of construction and of action is this, that if any given power was originally vested in this state, if it has not been exclusively ceded to congress, or if the exercise of it has not been prohibited to the states, we may then go on in the exercise of the power until it comes practically in collision with the actual exercise of some congressional power. When that happens to be the case, the state authority will so far be controlled, but it will still be good in all those respects in which it does not absolutely contravene the provision of the paramount law.

This construction of the powers of the federal compact has the authority of Mr. Hamilton. In the thirty-second number of the Federalist, he admits that all the authorities of which the states are not explicitly devested, remain with them in full vigor, and that in all cases in which it was deemed improper that a like authority with that granted to the union should reside in the states, there was the most pointed care in the constitution to insert negative clauses. He further states that there are only three cases of the alienation of the state sovereignty; 1. Where the grant to the general government is, in express terms, exclusive; 2. Where a like power is expressly prohibited to the states; and, 3. Where an authority in the states would be absolutely and totally contradictory and repugnant to one granted to the union; and it must be, he says, an immediate constitutional repugnancy that can, by implication, alienate and extinguish a pre-existing right of sovereignty. The same view of the powers of the federal and state governments, and the same rules of interpretation, were given by him, in the discussions which the constitution underwent in our state convention, and they seem generally, if not unanimously, to have been acquiesced in by the members of that very respectable assembly. (See the Debates of the New-York Convention, published by Francis Childs.) These opinions may be regarded as the best evidence of the sense of the authors of that instrument, the best test of its principles, and the most accurate cotemporary exposition to which we can recur. For every one acquainted with the history of those times, well knows that the principles of the constitution, in the progress of its adoption through the United States, were discussed in the several conventions, and before the public, by men of the most powerful talents, and with the most animated zeal for the public welfare. There were many distinguished individuals, and none more so than the one to whom I have referred, who had bestowed intense thought, not only upon the science of civil government at large, but who had specially and deeply studied the history and nature, the tendency and genius of the federal system of government, of which the European confederacies had given us imperfect examples, and to which system, as improved by more skilful artists, the destinies of this country were to be confided. Principles of construction solemnly sanctioned at that day, and flowing from such sources, as to be regarded by us, and by posterity, as coming in the language of truth, and with the force of authority.

I now proceed to apply these general rules to those parts of the constitution which are supposed to have an influence on the present question.

The provision that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, has nothing to do with this case. It means only that citizens of other states shall have equal rights with our own citizens, and not that they shall have different or greater rights. Their persons and property must, in all respects, be equally subject to our law. This is a very clear proposition, and the provision itself was taken from the articles of the confederation. The two paragraphs of the [Volume 2, Page 495] constitution by which it is contended that the original power in the state governments to make the grant has been withdrawn, and vested exclusively in the union, are, 1. The power to regulate commerce with foreign nations, and among the several states; and, 2. The power to secure to authors and inventors the exclusive right to their writings and discoveries.

1. As to the power to regulate commerce.

This power is not, in express terms, exclusive, and the only prohibition upon the states is, that they shall not enter into any treaty or compact with each other, or with a foreign power, nor lay any duty on tonnage, or on imports or exports, except what may be necessary for executing their inspection laws. Upon the principles above laid down, the states are under no other constitutional restriction, and are, consequently, left in possession of a vast field of commercial regulation; all the internal commerce of the state by land and water remains entirely, and I may say exclusively, within the scope of its original sovereignty. The congressional power relates to external not to internal commerce, and it is confined to the regulation of that commerce. To what extent these regulations may be carried, it is not our present duty to inquire. The limits of this power seem not to be susceptible of precise definition. It may be difficult to draw an exact line between those regulations which relate to external and those which relate to internal commerce, for every regulation of the one will, directly or indirectly, affect the other. To avoid doubts, embarrassment and contention on this complicated question, the general rule of interpretation which has been mentioned, is extremely salutary. It removes all difficulty, by its simplicity and certainty. The states are under no other restrictions than those expressly specified in the constitution, and such regulations as the national government may, by treaty, and by laws, from time to time, prescribe. Subject to these restrictions, I contend, that the states are at liberty to make their own commercial regulations. There can be no other safe or practicable rule of conduct, and this, as I have already shown, is the true constitutional rule arising from the nature of our federal system. This does away all color for the suggestion that the steam-boat grant is illegal and void under this clause in the constitution. It comes not within any prohibition upon the states, and it interferes with no existing regulation. Whenever the case shall arise of an exercise of power by congress which shall be directly repugnant and destructive to the use and enjoyment of the appellants' grant, it would fall under the cognizance of the federal courts, and they would, of course, take care that the laws of the union are duly supported. I must confess, however, that I can hardly conceive of such a case, because I do not, at present, perceive any power which congress can lawfully carry to that extent. But when there is no existing regulation which interferes with the grant, nor any pretence of a constitutional interdict, it would be most extraordinary for us to adjudge it void, on the mere contingency of a collision with some future exercise of congressional power. Such a doctrine is a monstrous heresy. It would go, in a great degree, to annihilate the legislative power of the states. May not the legislature declare that no bank paper shall circulate, or be given or received in payment, but what originates from some incorporated bank of our own, or that none shall circulate under the nominal value of one dollar? But suppose congress should institute a national bank, with authority to issue and circulate throughout the union, bank notes, as well below as above that nominal value: this would so far control the state law, but it would remain valid and binding, except as to the paper of the national bank. The state law would be absolute, until the appearance of the national bank, and then it would have a qualified effect, and be good pro tanto. So, again, the legislature may declare that it shall be unlawful to vend lottery tickets, unless they be tickets of lotteries authorized by a law of this state, and who will question the validity of the provision? But suppose congress should deem it expedient to establish a national lottery, and should authorize persons in each state to vend the tickets, this would so far control the state prohibition, and leave it in full force as to all other lotteries. The possibility that a national bank, or a national lottery, might be instituted, would be a very strange reason for holding the state laws to be absolutely null and void. It strikes me to be an equally inadmissible proposition, that the state is devested of a capacity to grant an exclusive privilege of navigating a steam-boat, within its own waters, merely because we can imagine that congress, in the plenary exercise of its power to regulate commerce, may make some regulation inconsistent with the exercise of this privilege. When such a case arises, it will provide for itself; and there is, fortunately, a paramount power in the Supreme Court of the United States to guard against the mischiefs of collision.

The grant to the appellants may, then, be considered as taken subject to such future commercial regulations as congress may lawfully prescribe. Congress, indeed, has not any direct jurisdiction over our interior commerce or waters. Hudson river is the property of the people of this state, and the legislature have the same jurisdiction over it that they have over the land, or over any of our public highways, or over the waters of any of our rivers or lakes. They may, in their sound discretion, regulate and control, enlarge or abridge the use of its waters, and they are in the habitual exercise of that sovereign right. If the constitution had given to congress exclusive jurisdiction over our navigable waters, then the argument of the respondents would have applied; but the people never did, nor ever intended, to grant such a power; and congress have concurrent jurisdiction over the navigable waters no further than may be incidental and requisite to the due regulation of commerce between the states, and with foreign nations.

What has been the uniform, practical construction of this power? Let us examine the code of our statute laws. Our turnpike roads, our toll-bridges, the exclusive grant to run stage-wagons, our laws relating to paupers from other states, our Sunday laws, our rights of ferriage over navigable rivers and lakes, our auction licenses, our licenses to retail spirituous liquors, the laws to restrain hawkers and pedlars; what are all these provisions but regulations of internal commerce, affecting as well the intercourse between the citizens of this and other states, as between our own citizens? So we also exercise, to a considerable degree, a concurrent power with congress in the regulation of external [Volume 2, Page 496] commerce. What are our inspection laws relative to the staple commodities of this state, which prohibit the exportation, except upon certain conditions, of flour, of salt provisions, of certain articles of lumber, and of pot and pearl ashes, but regulations of external commerce? Our health and quarantine laws, and the laws prohibiting the importation of slaves, are striking examples of the same kind. So the act relative to the poor, which requires all masters of vessels coming from abroad to report and give security to the mayor of New-York, that the passengers, being aliens, shall not become chargeable as paupers, and in case of default, making even the ship or vessel from which the alien shall be landed liable to seizure, is another and very important regulation affecting foreign commerce.

Are we prepared to say, in the face of all these regulations, which form such a mass of evidence of the uniform construction of our powers, that a special privilege for the exclusive navigation by a steam-boat upon our waters, is void, because it may, by possibility, and in the course of events, interfere with the power granted to congress to regulate commerce? Nothing, in my opinion, would be more preposterous and extravagant. Which of our existing regulations may not equally interfere with the power of congress? It is said that a steam-boat may become the vehicle of foreign commerce; and, it is asked, can then the entry of them into this state, or the use of them within it, be prohibited? I answer yes, equally as we may prohibit the entry or use of slaves, or of pernicious animals, or an obscene book, or infectious goods, or any thing else that the legislature shall deem noxious or inconvenient. Our quarantine laws amount to an occlusion of the port of New-York from a portion of foreign commerce, for several months in the year; and the mayor is even authorized under those laws to stop all commercial intercourse with the ports of any neighboring state. No doubt these powers may be abused, or exercised in bad faith, or with such jealousy and hostility towards our neighbors, as to call for some explicit and paramount regulation of congress on the subject of foreign commerce, and of commerce between the states. Such cases may easily be supposed, but it is not logical to reason from the abuse against the lawful existence of a power; and until such congressional regulations appear, the legislative will of this state, exercised on a subject within its original jurisdiction, and not expressly prohibited to it by the constitution of the United States, must be taken to be of valid and irresistible authority.

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 3 (Commerce), Document 13
http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces13.html
The University of Chicago Press