the granting clause which makes that
power EXCLUSIVE in the Union. There is no independent clause or sentence
which prohibits the States from exercising it. So far is this from being
the case, that a plain and conclusive argument to the contrary is to be
deduced from the restraint laid upon the States in relation to duties on
imports and exports. This restriction implies an admission that, if it
were not inserted, the States would possess the power it excludes;
and it implies a further admission, that as to all other taxes, the
authority of the States remains undiminished. In any other view it would
be both unnecessary and dangerous; it would be unnecessary, because if
the grant to the Union of the power of laying such duties implied the
exclusion of the States, or even their subordination in this particular,
there could be no need of such a restriction; it would be dangerous,
because the introduction of it leads directly to the conclusion which
has been mentioned, and which, if the reasoning of the objectors be
just, could not have been intended; I mean that the States, in all cases
to which the restriction did not apply, would have a concurrent power
of taxation with the Union. The restriction in question amounts to what
lawyers call a NEGATIVE PREGNANT that is, a NEGATION of one thing, and
an AFFIRMANCE of another; a negation of the authority of the States
to impose taxes on imports and exports, and an affirmance of their
authority to impose them on all other articles. It would be mere
sophistry to argue that it was meant to exclude them ABSOLUTELY from the
imposition of taxes of the former kind, and to leave them at liberty
to lay others SUBJECT TO THE CONTROL of the national legislature.
The restraining or prohibitory clause only says, that they shall not,
WITHOUT THE CONSENT OF CONGRESS, lay such duties; and if we are to
understand this in the sense last mentioned, the Constitution would then
be made to introduce a formal provision for the sake of a very absurd
conclusion; which is, that the States, WITH THE CONSENT of the national
legislature, might tax imports and exports; and that they might tax
every other article, UNLESS CONTROLLED by the same body. If this was the
intention, why not leave it, in the first instance, to what is alleged
to be the natural operation of the original clause, conferring a general
power of taxation upon the Union? It is evident that this could not
have been the intention, and that it