Is not this asserting that governments have all power, and the people no rights?
But what is to be particularly noticed, is the fact that Marshall gives to congress all this practically unlimited power over all “commerce with foreign nations, and among the several States,” solely on the strength of a false definition of the verb “to regulate.” He says that “the power to regulate commerce” is the power “to prescribe the rule by which commerce is to be governed.”
This definition is an utterly false, absurd, and atrocious one. It would give congress power arbitrarily to control, obstruct, impede, derange, prohibit, and destroy commerce.
The verb “to regulate” does not, as Marshall asserts, imply the exercise of any arbitrary control whatever over the thing regulated; nor any power “to prescribe [arbitrarily] the rule, by which” the thing regulated “is to be governed.” On the contrary, it comes from the Latin word, regula, a rule; and implies the pre-existence of a rule, to which the thing regulated is made to conform.
To regulate one’s diet, for example, is not, on the one hand, to starve one’s self to emaciation, nor, on the other, to gorge one’s self with all sorts of indigestible and hurtful substances, in disregard of the natural laws of health. But it supposes the pre-existence of the natural laws of health, to which the diet is made to conform.
A clock is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will or caprice of the person who may have it in hand. It is “regulated” only when it is made to conform to, to mark truly, the diurnal revolutions of the earth. These revolutions of the earth constitute the pre-existing rule, by which alone a clock can be regulated.
A mariner’s compass is not “regulated,” when the needle is made to move this way and that, at the will of an operator, without reference to the north pole. But it is regulated when it is freed from all disturbing influences, and suffered to point constantly to the north, as it is its nature to do.
A locomotive is not “regulated,” when it is made to go, to stop, to go forwards, to go backwards, to go fast, to go slow, at the mere will and caprice of the engineer, and without regard to economy, utility, or safety. But it is regulated, when its motions are made to conform to a pre-existing rule, that is made up of economy, utility, and safety combined. What this rule is, in the case of a locomotive, may not be known with such scientific precision, as is the rule in the case of a clock, or a mariner’s compass; but it may be approximated with sufficient accuracy for practical purposes.
The pre-existing rule, by which alone commerce can be “regulated,” is a matter of science; and is already known, so far as the natural principle of justice, in relation to contracts, is known. The natural right of all men to make all contracts whatsoever, that are naturally and intrinsically just and lawful, furnishes the pre-existing rule, by which alone commerce can be regulated. And it is the only rule, to which congress have any constitutional power to make commerce conform.
When all commerce, that is intrinsically just and lawful, is secured and protected, and all commerce that is intrinsically unjust and unlawful, is prohibited, then commerce is regulated, and not before.4
This false definition of the verb “to regulate” has been used, time out of mind, by knavish lawmakers and their courts, to hide their violations of men’s natural right to do their own businesses in all such ways—that are naturally and intrinsically just and lawful—as they may choose to do them in. These lawmakers and courts dare not always deny, utterly and plainly, men’s right to do their own businesses in their own ways; but they will assume “to regulate” them; and in pretending simply “to regulate” them, they contrive “to regulate” men out of all their natural rights to do their own businesses in their own ways.
How much have we all heard (we who are old enough), within the last fifty years, of the power of congress, or of the States, “to regulate the currency.” And “to regulate the currency” has always meant to fix the kind, and limit the amount, of currency, that men may be permitted to buy and sell, lend and borrow, give and receive, in their dealings with each other. It has also meant to say who shall have the control of the licensed money; instead of making it mean the suppression only of false and dishonest money, and then leaving all men free to exercise their natural right of buying and selling, borrowing and lending, giving and receiving, all such, and so much, honest and true money, or currency, as the parties to any or all contracts may mutually agree upon.
Marshall’s false assumptions are numerous and tyrannical. They all have the same end in view as his false definitions; that is, to establish the principle that governments have all power, and the people no rights. They are so numerous that it would be tedious, if not impossible, to describe them all separately. Many, or most, of them are embraced in the following, viz.:
1. The assumption that, by a certain paper, called the constitution of the United States—a paper (I repeat and reiterate) which nobody ever signed, which but few persons ever read, and which the great body of the people never saw—and also by some forty subsidiary papers, called State constitutions, which also nobody ever signed, which but few persons ever read, and which the great body of the people never saw—all making a perfect system of the merest nothingness—the assumption, I say, that, by these papers, the people have all consented to the abolition of justice itself, the highest moral law of the Universe; and that all their own natural, inherent, inalienable rights to the benefits of that law, shall be annulled; and that they themselves, and everything that is theirs, shall be given over into the irresponsible custody of some forty little cabals of blockheads and villains called lawmakers—blockheads, who imagine themselves wiser than justice itself, and villains, who care nothing for either wisdom or justice, but only for the gratification of their own avarice and ambitions; and that these cabals shall be invested with the right to dispose of the property, liberty, and lives of all the rest of the people, at their pleasure or discretion; or, as Marshall says, “their wisdom and discretion!”
If such an assumption as that does not embrace nearly, or quite, all the other false assumptions that usurpers and tyrants can ever need, to justify themselves in robbing, enslaving, and murdering all the rest of mankind, it is less comprehensive than it appears to me to be.
2. In the following paragraph may be found another batch of Marshall’s false assumptions.
The right to contract is the attribute of a free agent, and he may rightfully coerce performance from another free agent, who violates his faith. Contracts have consequently an intrinsic obligation. [But] When men come into society, they can no longer exercise this original natural right of coercion. It would be incompatible with general peace, and is therefore surrendered. Society prohibits the use of private individual coercion, and gives in its place a more safe and more certain remedy. But the right to contract is not surrendered with the right to coerce performance.—Ogden vs. Saunders, 12 Wheaton 350.
In this extract, taken in connection with the rest of his opinion in the same case, Marshall convicts himself of the grossest falsehood. He acknowledges that men have a natural right to make their own contracts; that their contracts have an “intrinsic obligation”; and that they have an “original and natural right” to coerce performance of them. And yet he assumes, and virtually asserts, that men voluntarily “come into society,” and “surrender” to “society” their natural right to coerce the fulfilment of their contracts. He assumes, and virtually asserts, that they do this, upon the ground, and for the reason, that “society gives in its place a more safe and more certain remedy”; that is, “a more safe and more certain” enforcement of all men’s contracts that have “an intrinsic obligation.”
In thus saying that “men come into society,” and “surrender” to society, their “original and natural right” of coercing the fulfilment of contracts, and that “society gives in its place a more safe and certain remedy,” he virtually says, and means to say, that, in consideration of such “surrender” of their “original