The Essentials of American Constitutional Law — John Shaqi
The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
It should be clearly understood that power to regulate commerce is
incident to sovereignty. Government—whatever its form—is a delegation
of power by sovereignty, and of necessity possesses this power of
regulation. The degree or extent of the delegation of the power
to regulate commerce marks unmistakably the jurisdiction of the
government exercising the power. The analogy is in the taxing power.
In our system of dual government—national and State—there are two
jurisdictions. The respective States have power over commerce; the
United States has power to regulate commerce,—each jurisdiction
expressly or impliedly outlined by the Constitution.
51. With slight change in wording, the leading decisions of the Supreme
Court on the power of the United States to lay and collect taxes, and
its decisions on the subject interpretative of the taxing power of the
States, apply, in principle, to their respective powers over commerce:
If we measure the power of {taxation }
{“regulating commerce”}
residing in a State, by the extent of sovereignty which the people of
a single State possess and can confer on its government, we have an
intelligent standard, applicable to every case to which the power may
be applied. We have a principle which leaves the power of
{taxing the people and property of the State}
{“regulating the commerce of the State” }
unimpaired; which leaves to a State the command of all its resources,
and which places beyond its reach all those powers which are conferred
by the people of the United States on the government of the Union,
and all those means which are given for the purpose of carrying those
powers into execution. We have a principle which is safe for the
States, and safe for the Union. We are relieved, as we ought to be,
from clashing sovereignty; from interfering powers.[132]
52. No evil contributed more to the feebleness of the old Confederation
than its inability to regulate commerce. The mischief being great, the
grant of power to correct the mischief was correspondingly great. This
grant of power to regulate commerce comprehends “all foreign commerce
and all commerce among the States.” As inefficiency was the evil, the
grant of power was to secure efficiency. In construing this grant—the
commerce clause of the Constitution—the large and single purpose is so
to construe as not to impair its efficiency and thus defeat the object
of the grant.[133]
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