On February 5, 1796, in the House, Madison offered a resolution authorizing the President to have made a survey of the postroad from Maine to Georgia, the expense being borne by the United States.[201] Two good effects, said Madison, would accrue; “the shortest route from one place to another would be determined upon, and persons, having a certainty of the stability of the roads, would not hesitate to make improvements on them.” It was to be the “commencement of an extensive work”; and during his administration Madison approved acts which appropriated over $500,000, most of it for the Cumberland Road.[202]
There had been, it is true, an intimation of a changed attitude when, in his seventh annual message (December 5, 1815), although strongly recommending the construction of roads and canals under national authority, he called it “a happy reflection that any defect of constitutional authority which may be encountered can be supplied in a mode which the Constitution itself has providently pointed out.”[203] A year later he asked Congress to exercise its existing powers, and, if necessary, to resort “to the prescribed mode of enlarging them, in order to effectuate a comprehensive system of roads and canals, such as will have the effect of drawing more closely together every part of our country.”[204]
Madison’s decisive stand, however, was to be taken on the so-called “bonus bill,” the purpose of which was to provide a permanent fund for road construction. In the famous report which Gallatin had prepared for the Senate (April 6, 1808), he had denied any right of eminent domain inhering in the United States and had declared that no road or canal could be opened without the consent of the states concerned. This fact, Gallatin argued, necessarily controlled the manner of expenditure (in the absence of constitutional amendment). He suggested two expedients: congressional undertakings with the consent of the states, or subscriptions by Congress to the shares of companies incorporated for the purpose of building highways.[205] Concerning Gallatin’s second alternative, no action was taken for two years. In 1810, however, a Senate committee reported favorably a blanket bill which would make the government owner of one half the stock in any corporation formed to carry out the projects recommended by Gallatin in his report.[206] But the theory of the “bonus bill” was radically different.
It was reported in the House by a special committee of which Calhoun was chairman, and set aside the $1,500,000 bonus which was to be paid by the United States Bank for its charter, together with the dividend arising from the stock held by the government; there would thus be provided a permanent fund for the construction of roads and canals.
The chief argument in support of the bill was made by Calhoun.[207] He expressed no opinion as to the validity of the objection that Congress had not the power to cut a road through a state without its consent. The proposed bill did not raise that question. But, said Calhoun, “the Constitution gives to Congress the power to establish postoffices and postroads. I know that the interpretation usually given to these words confines our powers to that of designating only the postroads; but it seems to me that the word ‘establish’ comprehends something more,” it would seem to give Congress the right to construct. Calhoun’s argument is not a closely reasoned one and does not carry conviction in all respects; nevertheless, his main point upon which he lays chief weight,—that the appropriation of money by Congress is not confined to the furtherance of those powers enumerated in the Constitution,—was well taken.[208]
The bill was passed by Congress,[209] not, however, without many doubts being expressed as to its constitutionality,[210] and went to President Madison at the very close of his administration. Madison did not resort to a pocket veto and on March 3, 1817, sent a message to Congress giving the grounds for his objections to the measure. He held that the act could not be justified under the commerce or general welfare clauses, but made no use of the postal power as a possible, if not adequate source of authority. He said:
“If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the states in the mode provided in the bill cannot confer the power. The only cases in which the consent and cession of particular states can extend the power of Congress are those specified and provided for in the Constitution.”[211]
In this message Madison did not clearly suggest a distinction between the simple power to appropriate, to appropriate and construct, with the consent of the states, and to construct against the will of local jurisdictions. Before reaching the conclusion quoted above, he had used this ambiguous language: “A restriction of the power ‘to provide for the common defense and general welfare’ to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and important measures of government, money being the ordinary and necessary means of carrying them into execution.”[212] Madison declared later that his veto contemplated the appropriation as well as construction; yet during his tenure he sanctioned measures providing funds for various roads.[213]
This distinction which Calhoun pointed out, and concerning which, in his message at least, Madison was vague, was to be stressed by Monroe and by Congress in the exhaustive debates upon the nature and extent of the power that the federal government possessed.[214] Monroe did not delay in making known his attitude and went directly to the point in his first annual message when he said:
“Disregarding early impressions, I have bestowed on the subject all the deliberation which its great importance and a just sense of my duty required, and the result is, a settled conviction, in my mind, that Congress do not possess the right.... In communicating this result, I cannot resist the obligation which I feel, to suggest to Congress the propriety of recommending to the states the adoption of an amendment to the Constitution, which shall give Congress the right in question.”[215]