#strict construction

John Marshall, Opinion in Gibbons v Ogden, March 2, 1824

6.16.1817: “Three of our papers have presented us the copy of an act of the legislature of New York, which, if it has really passed, will carry us back to the times of the darkest bigotry and barbarism to find a parallel. Its purport is, that all those who shall hereafter join in communion with the religious sect of Shaking Quakers, shall be deemed civilly dead, their marriages dissolved, and all their children and property taken out of their hands. This act being published nakedly in the papers, without the usual signatures, or any history of the circumstances of its passage, I am not without a hope it may have been a mere abortive attempt. It contrasts singularly with a cotemporary vote of the Pennsylvania legislature, who, on a proposition to make the belief in a god a necessary qualification for office, rejected it by a great majority, although assuredly there was not a single atheist in their body. And you remember to have heard, that, when the act for religious freedom was before the Virginia Assembly, a motion to insert the name of Jesus Christ before the phrase, 'the author of our holy religion,' which stood in the bill, was rejected, although that was the creed of a great majority of them.” —to Albert Gallatin

6.16.1817: “Whereas, our tenet ever was, and, indeed, it is almost the only land-mark which now divides the federalists from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action: consequently, that the specification of powers is a limitation of the purposes for which they may raise money.” —to Albert Gallatin

Full letter: 

June 16, 1817.

“Dear Sir,                         Monticello

The importance that the enclosed letters should safely reach their destination, impels me to avail myself of the protection of your cover. This is an inconvenience to which your situation exposes you, while it adds to the opportunities of exercising yourself in works of charity.

According to the opinion I hazarded to you a little before your departure, we have had almost an entire change in the body of Congress. The unpopularity of the compensation law was completed, by the manner of repealing it as to all the world except themselves. In some States, it is said, every member is changed; in all, many. What opposition there was to the original law, was chiefly from southern members. Yet many of those have been left out, because they received the advanced wages. I have never known so unanimous a sentiment of disapprobation; and what is remarkable, is, that it was spontaneous. The newspapers were almost entirely silent, and the people not only unled by their leaders, but in opposition to them. I confess I was highly pleased with this proof of the innate good sense, the vigilance, and the determination of the people to act for themselves.

Among the laws of the late Congress, some were of note: a navigation act, particularly, applicable to those nations only who have navigation acts; pinching one of them especially, not only in the general way, but in the intercourse with her foreign possessions. This part may re-act on us, and it remains for trial which may bear longest. A law respecting our conduct as a neutral between Spain and her contending colonies, was passed by a majority of one only, I believe, and against the very general sentiment of our country. It is thought to strain our complaisance to Spain beyond her right or merit, and almost against the right of the other party, and certainly against the claims they have to our good wishes and neighborly relations. That we should wish to see the people of other countries free, is as natural, and at least as justifiable, as that one King should wish to see the Kings of other countries maintained in their despotism. Right to both parties, innocent favor to the juster cause, is our proper sentiment.

You will have learned that an act for internal improvement, after passing both houses, was negatived by the President. The act was founded, avowedly, on the principle that the phrase in the constitution, which authorizes Congress 'to lay taxes, to pay the debts and provide for the general welfare,' was an extension of the powers specifically enumerated to whatever would promote the general welfare; and this, you know, was the federal doctrine. Whereas, our tenet ever was, and, indeed, it is almost the only land-mark which now divides the federalists from the republicans, that Congress had not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provide for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action: consequently, that the specification of powers is a limitation of the purposes for which they may raise money. I think the passage and rejection of this bill a fortunate incident. Every State will certainly concede the power; and this will be a national confirmation of the grounds of appeal to them, and will settle for ever the meaning of this phrase, which, by a mere grammatical quibble, has countenanced the General Government in a claim of universal power. For in the phrase, 'to lay taxes, to pay the debts and provide for the general welfare,' it is a mere question of syntax, whether the two last infinitives are governed by the first, or are distinct and co-ordinate powers; a question unequivocally decided by the exact definition of powers immediately following. It is fortunate for another reason, as the States, in conceding the power, will modify it, either by requiring the federal ratio of expense in each State, or otherwise, so as to secure us against its partial exercise. Without this caution, intrigue, negotiation, and the barter of votes might become as habitual in Congress, as they are in those legislatures which have the appointment of officers, and which, with us, is called 'logging,' the term of the farmers for their exchanges of aid in rolling together the logs of their newly cleared grounds. Three of our papers have presented us the copy of an act of the legislature of New York, which, if it has really passed, will carry us back to the times of the darkest bigotry and barbarism to find a parallel. Its purport is, that all those who shall hereafter join in communion with the religious sect of Shaking Quakers, shall be deemed civilly dead, their marriages dissolved, and all their children and property taken out of their hands. This act being published nakedly in the papers, without the usual signatures, or any history of the circumstances of its passage, I am not without a hope it may have been a mere abortive attempt. It contrasts singularly with a cotemporary vote of the Pennsylvania legislature, who, on a proposition to make the belief in a god a necessary qualification for office, rejected it by a great majority, although assuredly there was not a single atheist in their body. And you remember to have heard, that, when the act for religious freedom was before the Virginia Assembly, a motion to insert the name of Jesus Christ before the phrase, 'the author of our holy religion,' which stood in the bill, was rejected, although that was the creed of a great majority of them.

I have been charmed to see that a Presidential election now produces scarcely any agitation. On Mr. Madison's election there was little, on Monroe's all but none. In Mr. Adams's time and mine, parties were so nearly balanced as to make the struggle fearful for our peace. But since the decided ascendancy of the republican body, federalism has looked on with silent but unresisting anguish. In the middle, southern, and western States, it is as low as it ever can be; for nature has made some men monarchists and tories by their constitution, and some, of course, there always will be.

We have had a remarkably cold winter. At Hallowell, in Maine, the mercury was at thirty-four degrees below zero, of Fahrenheit, which is sixteen degrees lower than it was in Paris in 1788-9. Here it was at six degrees above zero, which is our greatest degree of cold.

Present me respectfully to Mrs. Gallatin, and be assured of my constant and affectionate friendship.

Th: Jefferson.”

This transcription of the June 16, 1817 letter from Thomas Jefferson to Albert Gallatin was originally accessed from the following source: http://www.gutenberg.org/files/16784/16784-h/16784-h.htm#link2H_4_0142

...with some corrections and additions from the Library of Congress M/S copy, which may be read here: http://hdl.loc.gov/loc.mss/mtj.mtjbib022897

—————————————————————————————————

Steven Edenbo as Thomas Jefferson: www.YourThomasJefferson.com

Thomas Jefferson on Twitter: @thos_jefferson

Mr. Jefferson’s Facebook page: www.Facebook.com/YourThomasJefferson