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The clause was inserted only ex abundanti cau- 1824. tela. With this explanation, it might be con- cima ceded, that the constitution of the United States

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v. is one of delegated and enumerated powers; and that all powers, not delegated by the constitution , to the national government, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The peculiar rule of construction demanded for those powers, might also be conceded: that the express powers are to . be strictly construed, the implied liberally. By which was understood to be meant, that Congress can do no more than they are expressly authorized to do; though the means of doing it are left to their discretion, under no other limit than that they shall be necessary and proper to the end.

On the other hand, the counsel for the respondent themselves admitted, that Congress, nevertheless, has some exclusive powers; and, in conformity with the decisions of the Court, they admit that those exclusive powers. exist under three heads. (1.) When the power is given to Congress in express terms of exclusion. (2.) When a power is given to Congress, and a like power is expressly prohibited to the States. (3.) Where a power given to Congress, is of such a nature, that the exercise of the same power by the States would be repugnant.

With regard to the degree of repugnancy, it was insisted, that the repugnancy must be manifest, necessary, unavoidable, total, and direct. Certainly if the powers be repugnant at all, they must be so with all these qualifications. If Con

Vol. I S.

1824. gress, in the lawful exercise of its power, says

that a thing shall be done, and the State says it Gibbons

shall not; or, which is the same thing, if Congress Ogden.

says that a thing shall be done, on certain terms, and the State says it shall not be done, except on certain other terms, the repugnancy bas all the epitbets which can be lavished upon it, and the State law must be void for this repugnancy.

A new test for the application of this third head of exclusive power, had been proposed. It was said, that “no power can be exclusive from its own nature, except where it formed no part of State authority previous to the constitution, but was first created by the constitution itself.” But why were these national powers thus created by the constitution? Because they look to the whole United States as their theatre of action. And are not all the powers given to Congress of the same character ? Under the power to regulate commerce, the commerce to be regulated is that of the United States with foreign nations, among the several States, and with the Indian tribes. No State had any previous power of regulating these. "The same thing might be affirmed of all the other powers enumerated in the constitution. They were all created by the constitution, because they are to be wielded by the whole Union over the whole Union, which no State could previously do. If any one power, created by the constitution, may be exclusive for that reason, then all may be exclusive, because all are originally created. If, on the other hand, we are to consider the powers enumerated in the constitution, not with reference to the greater arm that wields them, and the more 1824. extended territory over which they operate, but in merely in reference to the nature of the particulary. power in itself considered; then, according to this

Ogden. new test, all the powers given to Congress are concurrent; because there is no one power given to it, which, considered in this light, might not have been previo:isly exercised by the States within their respective sovereignties. But this argument proved too much: for, it has been conceded, that some of the powers are exclusive from their nature; whereas, if the argument were true, none of them could be exclusive. In this argument, the entire class or head of exclusive powers, arising from the nature of the power, must be abolished. But this Court had repeatedly determined, that there is such a class of exclusive powers. The power of establishing a uniform rule of naturalization, is one of the instances. Its exclusive character is rested on the constitutional requisition, that the rule established under it should be uniform.

It had been objected, that this would have been a koncurrent power, but for the auxiliary provision in the constitution, that a citizen of one State shall be entitled to all the privileges of a citizen in every other State. The answer was, that it is not so determined by the Court in the case cited, and that the commentators on the constitution place it exclusively on the nature of the power as described in the grant."

a Chirac v, Chirac, 2 Wheat. Rep. 269. b The Federalist, No. 42.

1824. it

Ogden.

So also, the power of establishing uniform laws on the subject of bankruptcies, is clearly an exclusive power from its nature. The Court has, indeed, determined, that until Congress thought fit to exercise the power, the States might pass local bankrupt laws, provided they did not impair the obligation of contracts; but, that ag 8000 as Congress legislate on the subject, the power of the States is at an end.“

But it had been said, that this doctrine takes away State power, by implication, which is contrary to the principles of interpretation laid down by the commentators on the constitution. It was not the opinion of the authors of the Federalist, that a State power could not be alienated by implication. Their doctrine was, that it might be alienated by implication, provided the implication be inevitable; and that it is inevitable wherever a direct and palpable repugnancy exists. The distinction between repugnancy and occasional interference, is manifest. The occasional interference, alluded to in the Federalist, and admitted by this Court, in its adjudications, is not a repugnancy between the powers themselves: it is a mere incidental interference in the operation of powers harmopious in themselves. The case put, was of a tax laid by Congress, and a tax laid by the State, upon the same subject, e. g. on a tract of land. The taxes operate upon, and are to be satisfied out of the same subject. It might be inconvenient to the proprietor to pay both taxes. In an

Sturges v. Crowninshield, 4 Wheat. Rep. 122,

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extreme case, the subject might be inadequate to the satisfaction of both. Then the tax laid by

by the paramount authority must be first satisfied." Still, this incidental interference in their operation, is not an inherent repugnance in the nature of the powers themselves.

It was also said, that to constitute the power an exclusive one in Congress; the repugnance must be such, that the State can pass no law on the subject, which will not be repugnant to the power given to Congress.

This required qualification before it could be admitted. Some subjects are, in their nature, extremely multifarious and complex. The same subject may consist of a great variety of branches, each extending itself into remote, minute, and infinite ramifications. One branch alone, of such a subject, might be given exclusively to Congress, (and the power is exclusive only so far as it is granted,) yet, on other branches of the same subject, the States might act, without interfering with the power exclusively granted to Congress. Commerce is such a subject. It is so complex, multifarious and indefinite, that it would be extremely difficult, if not impracticable, to make a digest of all the operations which belong to it. One or more branches of this subject might be given exclusively to Congress; the others may be left open to the States. They may, therefore, legislate on commerce, though they cannot touch that branch which is given exclusively to Congress.

So Congress has the power to promote the progress of science and the useful arts; but only in

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