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Subject Area: Political Theory
Topic: The American Revolution and Constitution

TO JOSEPH C. CABELL. mad. mss. - James Madison, The Writings, vol. 9 (1819-1836) [1910]

Edition used:

The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.

Part of: The Writings of James Madison, 9 vols.

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TO JOSEPH C. CABELL.

mad. mss.

Montpellier, Mar. 22d, 1827.

My Dear Sir,

. . . I had noticed the loss of the proposed amendment to the Resolution on the subject of the Tariff, and the shaft levelled at yourself. Intemperance in politics is bad enou’; Intolerance has no excuse. The extreme to which the Resolution goes in declaring the protecting duty as it is called unconstitutional is deeply to be regretted.1 It is a ground which cannot be maintained, on which the State will probably stand alone, and which by lessening the confidence of other States in the wisdom of its Councils, must impede the progress of its sounder doctrines. In compliance with your request I offer a few hasty remarks on topics and sources of information which occur to me.

1. The meaning of the Power to regulate commerce is to be sought in the general use of the phrase, in other words, in the objects generally understood to be embraced by the power, when it was inserted in the Constitution.

2. The power has been applied in the form of a tariff, to the encouraging of particular domestic occupations by every existing Commercial Nation.

3. It has been so used & applied particularly & systematically by G. Britain whose commercial vocabulary is the Parent of ours.

4. The inefficacy of the power in relation to manufactures as well as to other objects, when exercised by the States separately, was among the arguments & inducements for revising the Old Confederation, and transferring the power from the States to the Govt. of the U. S. Nor can it be supposed that the States actually engaged in certain branches of Manufactures, and foreseeing an increase of them, would have surrendered the whole power [over] commerce to the General Govt. unless expected to be more effectual for that as well as other purposes, in that depositary, than in their own hands. Nor can it be supposed that any of the States, meant to annihilate such a power, and thereby disarm the Nation from protecting occupations & establishments, important to its defence & independence, agst the subversive policy of foreign Rivals or Enemies. To say that the States may respectively encourage their own manufactures, and may therefore have looked to that resource when the Constitution was formed, is by no means satisfactory. They could not protect them by an impost, if the power of collecting one had been reserved, a partial one having been found impracticable; so, also as to a prohibitory regulation. Nor can they do it by an excise on foreign articles, for the same reason, the trade being necessarily open with other States which might concur in the plan. They could only do it by a bounty, and that bounty procured by a direct tax, a tax unpopular for any purpose, and obviously inadmissible for that. Such a state of things could never have been in contemplation when the Constitution was formed.

5. The Printed Journal of the Convention of 1787 will probably shew positively or negatively that the Commercial power given to Congress embraced the object in question.

6. The proceedings of the State Conventions may also deserve attention.

7. The proceedings & debates of the first Congress under the present Constitution, will shew that the power was generally, perhaps universally, regarded as indisputable.

8. Throughout the succeeding Congresses, till a very late date, the power over commerce has been exercised or admitted, so as to bear on internal objects of utility or policy, without a reference to revenue. The University of Virginia very lately had the benefit of it in a case where revenue was relinquished; a case not questioned, if liable to be so. The Virginia Resolutions, as they have been called, which were proposed in Congress in 1793-4, and approved throughout the State, may perhaps furnish examples.

9. Every President from Genl. W. to Mr. J. Q. Adams inclusive has recognised the power of a tariff in favor of Manufactures, without indicating a doubt, or that a doubt existed anywhere.

10. Virginia appears to be the only State that now denies, or ever did deny the power; nor are there perhaps more than a very few individuals, if a single one, in the State who will not admit the power in favor of internal fabrics or productions necessary for public defence on the water or the land. To bring the protecting duty in those cases, within the war power would require a greater latitude of construction, than to refer them to the power of regulating trade.

11. A construction of the Constitution practised upon or acknowledged for a period, of nearly forty years, has received a national sanction not to be reversed, but by an evidence at least equivalent to the National will. If every new Congress were to disregard a meaning of the instrument uniformly sustained by their predecessors, for such a period there would be less stability in that fundamental law, than is required for the public good, in the ordinary expositions of law. And the case of the Chancellor’s foot, as a substitute for an established measure, would illustrate the greater as well as the lesser evil of uncertainty & mutability.

12. In expounding the Constitution, it is as essential as it is obvious, that the distinction should be kept in view, between the usurpation, and the abuse of a power. That a Tariff for the encouragement of Manufactures may be abused by its excess, by its partiality, or by a noxious selection of its objects, is certain. But so may the exercise of every constitutional power; more especially that of imposing indirect taxes, though limited to the object of revenue. And the abuse cannot be regarded as a breach of the fundamental compact, till it reaches a degree of oppression, so iniquitous and intolerable as to justify civil war, or disunion pregnant with wars, then to be foreign ones. This distinction may be a key to the language of Mr J——n, in the letter you alluded to. It is known that he felt and expressed strongly, his disapprobation of the existing Tariff and its threatened increase.

13. If mere inequality, in imposing taxes, or in other Legislative Acts, be synonymous with unconstitutionality, is there a State in the Union whose constitution would be safe? Complaints of such abuses are heard in every Legislature, at every session; and where is there more of them than in Virginia, or of pretext for them than is furnished by the diversity of her local & other circumstances; to say nothing of her constitution itself, which happens to divide so unequally the very power of making laws?

I wish I could aid the researches to which some of the above paragraphs may lead. But it would not be in my power, if I had at my command, more than I have, the means of doing it. It is a satisfaction to know that the task, if thought worth the trouble, will be in better hands. . . .

[1 ]“You will perceive that the Genl. Assembly has again pronounced the opinion that Duties for the protection of domestic manufactures are unconstitutional. I made an effort to amend the resolution in the Senate so as to declare the increased duties of 1824 impolitic and unwise, but lost the motion by a vote of 14 to 8. . . . In the debate in the House of Delegates, Genl. Taylor quoted the opinion of Mr. Jefferson as expressed in his messages to Congress. Mr Giles declared in reply that he knew that Mr. Jefferson had changed his opinion as to the Constitutionality of protecting Duties, & referred to a private letter which he had received from him. I have not seen the letter myself: but I believe a letter has been shewn to some of the members.” Cabell to Madison, Richmond, March 12, 1827.—Mad. MSS. See Jefferson to Giles, December 25, 1825. (Writings, Ford, xii., 424, Federal Edition.)