A Compilation of the Messages and Papers of the Presidents. Volume 5, part 4: James Buchanan

by Unknown

The question of the constitutional power of Congress to construct internal improvements within the States has been so frequently and so elaborately discussed that it would seem useless on this occasion to repeat or to refute at length arguments which have been so often advanced. For my own opinions on this subject I might refer to President Polk's carefully considered message of the 15th December, 1847, addressed to the House of Representatives whilst I was a member of his Cabinet.

The power to pass the bill in question, if it exist at all, must be derived from the power "to regulate commerce with foreign nations and among the several States and with the Indian tribes."

The power "to regulate:" Does this ever embrace the power to create or to construct? To say that it does is to confound the meaning of words of well-known signification. The word "regulate" has several shades of meaning, according to its application to different subjects, but never does it approach the signification of creative power. The regulating power necessarily presupposes the existence of something to be regulated. As applied to commerce, it signifies, according to the lexicographers, "to subject to rules or restrictions, as to regulate trade," etc. The Constitution itself is its own best expounder of the meaning of words employed by its framers. Thus, Congress have the power "to coin money." This is the creative power. Then immediately follows the power "to regulate the value thereof "—that is, of the coined money thus brought into existence. The words "regulate," "regulation," and "regulations" occur several times in the Constitution, but always with this subordinate meaning. Thus, after the creative power "to raise and support armies" and "to provide and maintain a navy" had been conferred upon Congress, then follows the power "to make rules for the government and regulation of the land and naval forces" thus called into being. So the Constitution, acting upon the self-evident fact that "commerce with foreign nations and among the several States and with the Indian tribes" already existed, conferred upon Congress the power "to regulate" this commerce. Thus, according to Chief Justice Marshall, the power to regulate commerce "is the power to prescribe the rule by which commerce is to be governed." And Mr. Madison, in his veto message of the 3d March, 1817, 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 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.

We know from the history of the Constitution what these inconveniences were. Different States admitted foreign imports at different rates of duty. Those which had prescribed a higher rate of duty for the purpose of increasing their revenue were defeated in this object by the legislation of neighboring States admitting the same foreign articles at lower rates. Hence jealousies and dangerous rivalries had sprung up between the different States. It was chiefly in the desire to provide a remedy for these evils that the Federal Convention originated. The Constitution, for this purpose, conferred upon Congress the power to regulate commerce in such a manner that duties should be uniform in all the States composing the Confederacy, and, moreover, expressly provided that "no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another." If the construction of a harbor or deepening the channel of a river be a regulation of commerce, as the advocates of this power contend, this would give the ports of the State within which these improvements were made a preference over the ports of other States, and thus be a violation of the Constitution.

It is not too much to assert that no human being in existence when the Constitution was framed entertained the idea or the apprehension that by conferring upon Congress the power to regulate commerce its framers intended to embrace the power of constructing roads and canals and of creating and improving harbors and deepening the channels of rivers throughout our extensive Confederacy. Indeed, one important branch of this very power had been denied to Congress in express terms by the Convention. A proposition was made in the Convention to confer on Congress the power "to provide for the cutting of canals when deemed necessary." This was rejected by the strong majority of eight States to three. Among the reasons given for this rejection was 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."

To say that the simple power of regulating commerce embraces within itself that of constructing harbors, of deepening the channels of rivers—in short, of creating a system of internal improvements for the purpose of facilitating the operations of commerce—would be to adopt a latitude of construction under which all political power might be usurped by the Federal Government. Such a construction would be in conflict with the well-known jealousy against Federal power which actuated the framers of the Constitution. It is certain that the power in question is not enumerated among the express grants to Congress contained in the instrument. In construing the Constitution we must then next inquire, Is its exercise "necessary and proper"?—not whether it may be convenient or useful "for carrying into execution" the power to regulate commerce among the States. But the jealous patriots of that day were not content even with this strict rule of construction. Apprehending that a dangerous latitude of interpretation might be applied in future times to the enumerated grants of power, they procured an amendment to be made to the original instrument, which declares that "the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people."

The distinctive spirit and character which pervades the Constitution is that the powers of the General Government are confined chiefly to our intercourse with foreign nations, to questions of peace and war, and to subjects of common interest to all the States, carefully leaving the internal and domestic concerns of each individual State to be controlled by its own people and legislature. Without specifically enumerating these powers, it must be admitted that this well-marked distinction runs through the whole instrument. In nothing does the wisdom of its framers appear more conspicuously than in the care with which they sought to avoid the danger to our institutions which must necessarily result from the interference of the Federal Government with the local concerns of the States. The jarring and collision which would occur from the exercise by two separate governments of jurisdiction over the same subjects could not fail to produce disastrous consequences. Besides, the corrupting and seducing money influence exerted by the General Government in carrying into effect a system of internal improvements might be perverted to increase and consolidate its own power to the detriment of the rights of the States.

If the power existed in Congress to pass the present bill, then taxes must be imposed and money borrowed to an unlimited extent to carry such a system into execution. Equality among the States is equity. This equality is the very essence of the Constitution. No preference can justly be given to one of the sovereign States over another. According to the best estimate, our immense coast on the Atlantic, the Gulf of Mexico, the Pacific, and the Ivakes embraces more than 9,500 miles, and, measuring by its indentations and to the head of tide water on the rivers, the distance is believed to be more than 33,000 miles. This everywhere throughout its vast extent contains numerous rivers and harbors, all of which may become the objects of Congressional appropriation. You can not deny to one State what you have granted to another. Such injustice would produce strife, jealousy, and alarming dissensions among them. Even within the same State improvements may be made in one river or harbor which would essentially injure the commerce and industry of another river or harbor. The truth is that most of these improvements are in a great degree local in their character and for the especial benefit of corporations or individuals in their vicinity, though they may have an odor of nationality on the principle that whatever benefits any part indirectly benefits the whole.

From our past history we may have a small foretaste of the cost of reviving the system of internal improvements.