§ 205. On the other hand, it has been maintained with great pertinacity, that the states possess concurrent authority with congress in all cases, where the power is not expressly declared to be exclusive, or expressly prohibited to the states; and if, in the exercise of a concurrent power, a conflict arises, there is no reason, why each should not be deemed equally rightful. But it is plain, that this reasoning goes to the direct overthrow of the principle of supremacy; and, if admitted, it would enable the subordinate sovereignty to annul the powers of the superior. There is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to these very measures, is declared to be supreme over that, which exerts the control. For instance, the states have acknowledgedly a concurrent power of taxation. But it is wholly inadmissible to allow that power to be exerted over any instrument employed by the general government to execute its own powers; for such a power to tax involves a power to destroy; and this power to destroy may defeat, and render useless the power to create. Thus, a state may not tax the mail, the mint, patent rights, customhouse papers, or judicial process of the courts of the United States. And yet there is no clause in the constitution, which prohibits the states from exercising the power; nor any exclusive grant to the United States. The apparent repugnancy creates, by implication, the prohibition.

§ 206. In considering, then, this subject, it would be impracticable to lay down any universal rule, as to what powers are, by implication, exclusive in the general government, or concurrent in the states and in relation to the latter, what restrictions either on the Abr.

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power itself, or on the actual exercise of the power, arise by implication. In some cases, as we have seen, there may exist a concurrent power, and yet restrictions upon it must exist in regard to objects. In other cases, the actual operations of the power only are suspended or controlled, when there arises a conflict with the actual operations of the Union. Every question of this sort must be decided by itself upon its own circumstances and reasons. Because the power to regulate commerce, from its nature and objects, is exclusive, it does not follow, that the power to pass bankrupt laws also is exclusive.

§ 207. XIII. Another rule of interpretation deserves consideration in regard to the constitution. There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience. Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another. Lord Bacon's remark, "that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated," has been perpetually referred to, as a fine illustration. These maxims, rightly understood, and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition. But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text, and the objects of the instrument. Thus, it has been suggested, that an affirmative provision in a particular case excludes the existence of the like provision in every other case; and a negative provision in a particular case admits the existence of the same form in every other case.

Both of these deductions are, or rather may be, unfounded in solid reasoning. Thus, it was objected to the constitution, that, having provided for the trial by jury in criminal cases, there was an implied exclusion of it in civil cases. As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases, and a discretionary right (it being clearly within the reach of the judicial power confided to the Union) to adopt, or reject it in all or any other cases. One might with just as much propriety hold, that, because congress have power" to declare war," but no power is expressly given to make peace, the latter is excluded; or that, because it is declared, that "no bill of attainder, or ex post facto law shall be passed" by congress, therefore congress possess in all other cases the right to pass any laws. The truth is, that in order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument. These, and these only, can properly determine the rule of construction. There can be no doubt, that an affirmative grant of powers in many cases will imply an exclusion of all others. As, for instance, the constitution declares, that the powers of congress shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretensions to a general legislative authority. Why? Because an affirmative grant of special powers would be absurd, as well as useless, if a general authority were intended. In relation, then, to such a subject as a constitution, the natural and obvious sense of its provisions, apart from any technical or artificial rules, is the true criterion of construction.

§ 208. XIV. Another rule of interpretation of the constitution, suggested by the foregoing, is, that the natural import of a single clause is not to be narrowed, so as to exclude implied powers resulting from its character, simply because there is another clause, which enumerates certain powers, which might otherwise be deemed implied powers within its scope; for in such cases we are not, as a matter of course, to assume, that the affirmative specification excludes all other implications. This rule has been put in a clear and just light by one of our most distinguished statesmen; and his illustration will be more satisfactory, perhaps, than any other, which can be offered. "The constitution," says he, "vests in congress, expressly, the power to lay and collect taxes, duties, imposts, and excises, and the power to regulate trade. That the former power, if not particularly expressed, would have been included in the latter, as one of the objects of a general power to regulate trade, is not necessarily impugned by its being so expressed. Examples of this sort cannot sometimes be easily avoided, and are to be seen elsewhere in the constitution. Thus, the power to define and punish offences against the law of nations' includes the power, afterwards particularly expressed, to make rules concerning captures,' &c. from offending neutrals. So, also, a power to coin money' would, doubtless, include that of 'regulating its value,' had not the latter power been expressly inserted. The term taxes, if standing alone, would certainly have included duties, imposts, and excises.' In another clause it is said, 'no tax or duty shall be laid on exports.' Here the two terms are used as synonymous. And in another clause, where it is said 'no state shall lay any imposts or duties,' &c. the

terms imposts and duties are synonymous. Pleonasms, tautologies, and the promiscuous use of terms and phrases, differing in their shades of meaning, (always to be expounded with reference to the context, and under the control of the general character and scope of the instrument, in which they are found,) are to be ascribed, sometimes to the purposes of greater caution, sometimes to the imperfection of language, and sometimes to the imperfection of man himself. In this view of the subject it was quite natural, however certainly the power to regulate trade might include a power to impose duties on it, not to omit it in a clause enumerating the several modes of revenue authorized by the construction. In few cases could the rule, ex majori cautela, occur with more claim to respect.

§ 209. We may close this view of some of the more important rules to be employed in the interpretation of the constitution, by adverting to a few belonging to mere verbal criticism, which are indeed but corollaries from what has been said, and have been already alluded to; but which, at the same time, it may be of some use again distinctly to enunciate.

210. XV. In the first place, then, every word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make