Front Page Titles (by Subject) 1.: Protecting Duties Are Unconstitutional - Tyranny Unmasked
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1.: Protecting Duties Are Unconstitutional - John Taylor, Tyranny Unmasked 
Tyranny Unmasked, ed. F.Thornton Miller (Indianapolis: Liberty Fund, 1992).
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Protecting Duties Are Unconstitutional
To make them constitutional, the Committee have adopted the present fashionable mode of construction, which considers the constitution as a lump of fine gold, a small portion of which is so malleable, as to cover the whole mass. By this golden rule for manufacturing the constitution, a particular power given to the Federal Government, may be made to cover all the rights reserved to the people and the States; a limited jurisdiction given to the Federal Courts, is made to cover all the State Courts; and a legislative power over ten miles square, is malleated over the whole of the United States, as a single guinea may be beaten out, so as to cover a whole house. Unfortunately, this political manufacture being encouraged by allowing bounties paid in power and money, these bounties have engaged successive factories in the occupation; and, from the sedition law, for controlling the use of our tongues, down to the protecting-duty law for controlling the use of our hands, it has been cultivated with successful pertinacity. Why should some tongues and hands be oiled with power and money, and others rusted with penalties and taxes?
The protestation of the Committee against constructive limitations of power, applies with equal force against its constructive extension. No, says the new system of construction. Power has the double privilege of being exempted from any constructive limitation, and also of extending itself by construction. If an article in the constitution does not verbally reach the end in view, it may be wire drawn up to it by construction; but if it does verbally reach it, then it is to be construed as if the constitution had contained no other words, and is by no means to be explained or controlled by other articles, or by the primary principles of the instrument. Accordingly, the Committee pin the question on the power of Congress to regulate commerce as if it was isolated; and exclude the consideration of all the limitations in the same instrument, intended to prevent Congress from exercising an unlimited power of transferring property from State to State, from the nation to exclusive privileges, from class to class, and from individuals to individuals. And what has been done, without regarding what ought to have been done, is considered as affording precedents sufficient to confer these unconstitutional powers.
Thus they render several particular articles, and the true intention of the constitution inefficacious and nugatory. Of what value is the prohibition to impose a tax or duty on articles to be exported from any State, if Congress can impair or destroy this right of exportation, for the sake of enriching a local class of capitalists; of what value is the prohibition to bestow preferences and implicit partialities by a regulation of commerce or by modes of revenue, if Congress can establish preferences which shall make States tributary to States, the whole nation to capitalists, classes to classes, and individuals to individuals? Waving a verbalizing mode of discussion—the resource of imposition, and the detestation of common sense, we need only recollect that the intention and end of the constitution was to “secure the blessings of liberty to ourselves and our posterity.” Can any construction, by which Congress may destroy the liberty of ourselves and our posterity, be true? Yes, say the Committee, it may be true, because “it is extremely difficult to point out the rate of duty when revenue ceases, and protection becomes to be the ruling object; to define the line which shall limit the constitutional powers of Congress.” Does it follow that these powers have no limits? Yes, say the Committee: and to prove it, they echo the following terrifying words of the supreme court. “A power to tax, involves a power to destroy.” And thus these echoes between Congress and the court are considered as the only constitutional limitations. This repercussion is the only security against Federal usurpations. “A power to tax, involves a power to destroy.” This echo has destroyed the right of taxation reserved to the States, and extended ten miles square to the size of the United States. “Congress has a right to regulate the conduct and interest of individuals,” because it is necessary for the sake of political economy. An echo from the court, can also establish this boundless power, and complete the catastrophe of the drama. Here, then, a combination of powers is asserted by these self-created guardians of the constitution, which expunges all the limitations thought by its framers necessary to preserve a free form of government. “The only security against this combination of limitation-destroying powers,” say the Committee, still echoing the supreme court, “is the structure of the Federal Government.” But neither the court nor the Committee have ventured openly to inform us, whether it lies in the whole structure, or only in some portion of it. Do they consider the State Governments as component parts of this structure, enabled to resist its threatened destruction; or do they believe the Federal Government to be compounded only of Congress and the supreme court. Whether they admit or reject the State Governments as balancing or checking portions of the structure, they allow that a security against destruction is deposited somewhere; and if the destroyer himself is tacitly meant, it may still be useful to entreat this angel of death not to destroy the securities for a free government, because it is extremely difficult to define his powers. The difficulty may place the honorable men and real patriots in Congress, in a nice and delicate situation; but, however hard it may be to split straws for the purpose of defining the exact line which limits their powers, it does not follow that they ought to demolish pillars. Some lines are so very visible, that they may be clearly seen. That of changing the principles of the constitutional structure, by a legislative reconstruction of a society by monopolies and exclusive privileges, is one of these. Will this reconstruction “secure the blessings of liberty to ourselves and our posterity?” Will it be the same structure created for this primary end? If not, how can it be constitutional to hammer it out of any particular article?
Another of these destroying powers, when construed without any regard to the real design of the constitution, may be found in the right of borrowing and appropriating money. If Congress should borrow and give to capitalists, its might be verbally constitutional, but substantially it would be taxing the nation for their benefit, and not for the general welfare. Commercial restrictions which beget the necessity of borrowing, for the purpose of giving them bounties, amount to the same thing. If Congress cannot find a line which prohibits it from borrowing and appropriating money to monopolies and exclusive privileges, I do not see why they may not create a king, since the maintenance of one man at the public expense will undoubtedly accord better with the principles of political economy, than the maintenance of such combinations.
The Committee have borrowed, from mere declaimers, an argument, which, if reiteration could make truth, would be forcible indeed. They say “that manufactures which, in all other countries are cherished as the most valuable offspring of human industry, have become with us a spurious progeny, born with a constitutional malediction, to struggle under legal disabilities. The constitution designates no national interest in preference to another, but throws all alike on the discretion of Congress.” How are such assertions to be treated? Must I take off my hat, make a bow, and say “all this is very true?” Or ought I honestly to reply, “not a word of all this is true, except that the constitution designates no national interest in preference to another?” Had they substituted agriculture for manufactures, their assertions would have been diametrically different. Had they called that the most valuable offspring of human industry; had they asserted that it was treated as if it was under a constitutional malediction, and that it had to struggle with legal disabilities, they could not have been contradicted. To struggle with foreign industry is common to both occupations, and no legal disability to either. But the capitalists add insult to injury to roar out, whilst they are lashing agriculture and commerce with legal restrictions, like Sancho lashing the trees, that they are themselves receiving the blows they inflict. As the constitution designates no national interest in preference to another, it could not have designed that such preferences should be established by legislation, and a species of despotism created which it has carefully avoided and utterly neglected to provide for. But lest the forbearance of the constitution to recognise preferences of some national interests, should be considered as a constitutional rejection of that tyrannical policy, the Committee have supplied the omission, by gratuitously allowing it to have invested Congress with a power, which it forbears to exercise. “It throws,” say the Committee, “all national interests, on the discretion of Congress.” Thus undefined legal preferences of national interests rejected by the constitution, are entrusted to Congress; that body may legislate without limitation, their own discretion excepted, in creating them; and, by extending its power of legislation to objects excluded from the constitution as inconsistent with the principles of liberty and justice, the Committee have proved that the laws for bestowing lucrative preferences upon a capitalist interest to a great amount, are constitutional, however unjust or tyrannical. But under the sweeping doctrine “that the constitution throws all national interests on the discretion of Congress,” what becomes of the interests reserved to the States or the people? Are not these national interests? What becomes of all the interests intended to be secured beyond the reach of Congress by limitations and restrictions? What becomes of the declared intention of securing liberty by these precautions? What becomes of the security of property? What a foolish and useless labour does this doctrine charge the convention with undergoing? According to it, all that was necessary was to form a Congress, and to add one line, saying “that all national interests should depend on the discretion of that body.” As this assertion is thought necessary by the Committee to prove the constitutionality of the protecting-duty monopoly, its constitutionality and the assertion must stand or fall together. It places the question on its true ground. Will a power in Congress to manage all national interests and distribute preferences among them according to its discretion, preserve the Union, or secure liberty? Is it constitutional because the supreme court declares it to be so? Was Algernon Sydney constitutionally put to death, because it was done by a supreme court? Is the constitution subject to a similar jurisdiction, without the chance for reprieve, except from the prosecuting power? Whether it can be fairly so construed as to lay its limitations, its design and its life, at the feet of “a discretion in Congress,” is the ground upon which this point is to be decided.