In the proceedings and debates of the General Convention which formed the Constitution and of the State conventions which adopted it nothing is found to countenance the idea that the one intended to propose or the others to concede such a grant of power to the General Government as the building up and maintaining of a system of internal improvements within the States necessarily implies. Whatever the General Government may constitutionally create, it may lawfully protect. If it may make a road upon the soil of the States, it may protect it from destruction or injury by penal laws. So of canals, rivers, and harbors. If it may put a dam in a river, it may protect that dam from removal or injury, in direct opposition to the laws, authorities, and people of the State in which it is situated. If it may deepen a harbor, it may by its own laws protect its agents, and contractors from being driven from their work even by the laws and authorities of the State. The power to make a road or canal or to dig up the bottom of a harbor or river implies a right in the soil of the State and a jurisdiction over it, for which it would be impossible to find any warrant.
The States were particularly jealous of conceding to the General Government any right of jurisdiction over their soil, and in the Constitution restricted the exclusive legislation of Congress to such places as might be "purchased with the consent of the States in which the same shall be, for the erection of forts, magazines, dockyards, and other needful buildings." That the United States should be prohibited from purchasing lands within the States without their consent, even for the most essential purposes of national defense, while left at liberty to purchase or seize them for roads, canals, and other improvements of immeasurably less importance, is not to be conceived.
A proposition was made in the Convention to provide for the appointment of a "Secretary of Domestic Affairs," and make it his duty, among other things, "to attend to the opening of roads and navigation and the facilitating communications through the United States." It was referred to a committee, and that appears to have been the last of it. On a subsequent occasion a proposition was made to confer on Congress the power to "provide for the cutting of canals when deemed necessary," which was rejected by the strong majority of eight States to three. Among the reasons given for the rejection of this proposition, it was urged that "the expense in such cases will fall on the United States and the benefits accrue to the places where the canals may be cut."
During the consideration of this proposition a motion was made to enlarge the proposed power for "cutting canals" into a power "to grant charters of incorporation when the interest of the United States might require and the legislative provisions of the individual States may be incompetent;" and the reason assigned by Mr. Madison for the proposed enlargement of the power was that it would "secure an easy communication between the States, which the free intercourse now to be opened seemed to call for. The political obstacles being removed, a removal of the natural ones, as far as possible, ought to follow."
The original proposition and all the amendments were rejected, after deliberate discussion, not on the ground, as so much of that discussion as has been preserved indicates, that no direct grant was necessary, but because it was deemed inexpedient to grant it at all. When it is considered that some of the members of the Convention, who afterwards participated in the organization and administration of the Government, advocated and practiced upon a very liberal construction of the Constitution, grasping at many high powers as implied in its various provisions, not one of them, it is believed, at that day claimed the power to make roads and canals, or improve rivers and harbors, or appropriate money for that purpose. Among our early statesmen of the strict-construction class the opinion was universal, when the subject was first broached, that Congress did not possess the power, although some of them thought it desirable.
President Jefferson, in his message to Congress in 1806, recommended an amendment of the Constitution, with a view to apply an anticipated surplus in the Treasury "to the great purposes of the public education, roads, rivers, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of Federal powers." And he adds:
I suppose an amendment to the Constitution, by consent of the States, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which it permits the public moneys to be applied.
In 1825 he repeated, in his published letters, the opinion that no such power has been conferred upon Congress.
President Madison, in a message to the House of Representatives of the 3d of March, 1817, assigning his objections to a bill entitled "An act to set apart and pledge certain funds for internal improvements," declares that—
"The power to regulate commerce among the several States" can not include a power to construct roads and canals and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.