Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Powers of Congress – Internal Improvements
§ 1267. ANOTHER question, which has for a long time agitated the public councils of the nation, is, as to the authority of congress to make roads, canals, and other internal improvements.
§ 1268. So far, as regards the right to appropriate money to internal improvements generally, the subject has already passed under review in considering the power to lay and collect taxes. The doctrine there contended for, which has been in a great measure borne out by the actual practice of the government, is, that congress may appropriate money, not only to clear obstructions to navigable rivers; to improve harbours; to build breakwaters; to assist navigation; to erect forts, light-houses, and piers; and for other purposes allied to some of the enumerated powers; but may also appropriate it in aid of canals, roads, and other institutions of a similar nature, existing under state authority. The only limitations upon the power are those prescribed by the terms of the constitution, that the objects shall be for the common defence, or the general welfare of the Union. The true test is, whether the object be of a local character, and local use; or, whether it be of general benefit to the states.1 If it be purely local, congress cannot constitutionally appropriate money for the object. But, if the benefit be general, it matters not, whether in point of locality it be in one state, or several; whether it be of large or of small extent; its nature and character determine the right, and congress may appropriate money in aid of it; for it is then in a just sense for the general welfare.
§ 1269. But it has been contended, that the constitution is not confined to mere appropriations of money; but authorizes congress directly to undertake and carry on a system of internal improvements for the general welfare; wherever such improvements fall within the scope of any of the enumerated powers. Congress may not, indeed, engage in such undertakings merely because they are internal improvements for the general welfare, unless they fall within the scope of the enumerated powers. The distinction between this power, and the power of appropriation is, that in the latter, congress may appropriate to any purpose, which is for the common defence or general welfare; but in the former, they can engage in such undertakings only, as are means, or incidents to its enumerated powers. Congress may, therefore, authorize the making of a canal, as incident to the power to regulate commerce, where such canal may facilitate the intercourse between state and state. They may authorize light-houses, piers, buoys, and beacons to be built for the purposes of navigation. They may authorize the purchase and building of custom-houses, and revenue cutters, and public warehouses, as incidents to the power to lay and collect taxes. They may purchase places for public uses; and erect forts, arsenals, dock-yards, navy-yards, and magazines, as incidents to the power to make war.
§ 1270. For the same reason congress may authorize the laying out and making of a military road, and acquire a right over the soil for such purposes; and as incident thereto they have a power to keep the road in repair, and prevent all obstructions thereto. But in these, and the like cases, the general jurisdiction of the state over the soil, subject only to the rights of the United States, is not excluded. As, for example, in case of a military road; although a state cannot prevent repairs on the part of the United States, or authorize any obstructions of the road, its general jurisdiction remains untouched. It may punish all crimes committed on the road; and it retains in other respects its territorial sovereignty over it. The right of soil may still remain in the state, or in individuals, and the right to the easement only in the national government. There is a great distinction between the exercise of a power, excluding altogether state jurisdiction, and the exercise of a power, which leaves the state jurisdiction generally in force, and yet includes, on the part of the national government, a power to preserve, what it has created.2
§ 1271. In all these, and other cases, in which the power of congress is asserted, it is so upon the general ground of its being an incidental power; and the course of reasoning, by which it is supported, is precisely the same, as that adopted in relation to other cases already considered. It is, for instance, admitted, that congress cannot authorize the making of a canal, except for some purpose of commerce among the states, or for some other purpose belonging to the Union; and it cannot make a military road, unless it be necessary and proper for purposes of war. To go over the reasoning at large would, therefore, be little more, than a repetition of what has been already fully expounded.3 The Journal of the Convention is not supposed to furnish any additional lights on the subject, beyond what have been already stated.4
§ 1272. The resistance to this extended reach of the national powers turns also upon the same general reasoning, by which a strict construction of the constitution has been constantly maintained. It is said, that such a power is not among those enumerated in the constitution; nor is it implied, as a means of executing any of them. The power to regulate commerce cannot include a power to construct roads and canals, and 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, and incompatible with the nature of the constitution.5 The liberal interpretation has been very uniformly asserted by congress; the strict interpretation has not uniformly, but has upon several important occasions been insisted upon by the executive.6 In the present state of the controversy, the duty of forbearance seems inculcated upon the commentator; and the reader must decide for himself upon his own views of the subject.
§ 1273. Another question has been made, how far congress could make a law giving to the United States a preference and priority of payment of their debts, in cases of the death, or insolvency, or bankruptcy of their debtors, out of their estates. It has been settled, upon deliberate argument, that congress possess such a constitutional power. It is a necessary and proper power to carry into effect the other powers of the government. The government is to pay the debts of the Union; and must be authorized to use the means, which appear to itself most eligible to effect that object. It may purchase, and remit bills for this object; and it may take all those precautions, and make all those regulations, which will render the transmission safe. It may, in like manner, pass all laws to render effectual the collection of its debts. It is no objection to this right of priority, that it will interfere with the rights of the state sovereignties respecting the dignity of debts, and will defeat the measures, which they have a right to adopt to secure themselves against delinquencies on the part of their own revenue or other officers. This objection, if of any avail, is an objection to the powers given by the constitution. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects, to which the legislative power of congress extends.7
§ 1274. It is under the same implied authority, that the United States have any right even to sue in their own courts; for an express power is no where given in the constitution, though it is clearly implied in that part respecting the judicial power. And congress may not only authorize suits to be brought in the name of the United States, but in the name of any artificial person, (such as the Postmaster-General,8 ) or natural person for their benefit.9 Indeed, all the usual incidents appertaining to a personal sovereign, in relation to contracts, and suing, and enforcing fights, so far as they are within the scope of the powers of the government, belong to the United States, as they do to other sovereigns.10 The right of making contracts and instituting suits is an incident to the general right of sovereignty; and the United States, being a body politic, may, within the sphere of the constitutional powers confided to it, and through the instrumentality of the proper department, to which those powers are confided, enter into contracts not prohibited by law, and appropriate to the just exercise of those powers; and enforce the observance of them by suits and judicial process.11
§ 1275. There are almost innumerable cases, in which the auxiliary and implied powers belonging to congress have been put into operation. But the object of these Commentaries is, rather to take notice of those, which have been the subject of animadversion, than of those, which have hitherto escaped reproof, or have been silently approved.
§ 1276. Upon the ground of a strict interpretation, some extraordinary objections have been taken in the course of the practical operations of the government. The very first act, passed under the government, which regulated the time, form, and manner, of administering the oaths prescribed by the constitution,12 was denied to be constitutional. But the objection has long since been abandoned.13 It has been doubted, whether it is constitutional to permit the secretaries to draft bills on subjects connected with their departments, to be presented to the house of representatives for their consideration.14 It has been doubted, whether an act authorizing the president to lay, regulate, and revoke, embargoes was constitutional.15 It has been doubted, whether congress have authority to establish a military academy.16 But these objections have been silently, or practically abandoned.
1. Hamilton’s Report on Manufactures, 1791, 1 Hamilton’s Works, 231, 232; 1 Kent’s Comm. Lect. 12, p. 250, 251, (2ed. p. 267, 268;) Sergeant on Constitution, ch. 28, [ch. 30;] President Monroe’s Exposition and Message, 4th May, 1822, p. 38, 39.
2. See 1 Kent’s Comm. Lect. 12, p. 250, 251; Sergeant on Constitution, ch. 28, [ch. 30, ed. 1830;] 2 U.S. Law Journal, April, 1826, p. 251, etc.; 3 Elliot’s Debates, 309, 310; 4 Elliot’s Debates, 244, 265, 279, 291, 356; Webster’s Speeches, p. 392 to 397.
3. See M’Culloch v. Maryland, 4 Wheat R. 406, 407, 413 to 421; Webster’s Speeches, p. 392 to 397; 4 Elliot’s Debate. 280.
4. Journal of Convention, p. 260, 376.
5. President Madison’s Message. 3d March, 1817; 4 Elliot’s Debates, 280, 281; President Monroe’s Message, 4th May, 1822, p. 22 to 35; President Jackson’s Message, 27th May, 1830; 4 Elliot’s Debates, 333, 334. 335; 1 Kent’s Comm. Lect. 12, p. 250, 251; 4 Elliot’s Debates, 291, 292, 354, 355; Sergeant on Constitution, ch. 28, [ch. 30 ;] 4 Jefferson’s Corresp. 421. President Monroe, in his elaborate Exposition accompanying his Message of the 4th of May, 1822, denies the independent right of congress to construct roads and canals; but asserts in the strongest manner their right to appropriate money to such objects. His reasoning for the latter is thought by many to be quite irresistible in favour of the former. See the message from page. 35 to page 47. One short passage may be quoted. “Good roads and canals will promote many very important national purposes. They will facilitate the operations of war; the movements of troops; the transportation of cannon, of provisions and every warlike store, much to our advantage, and the disadvantage of the enemy in time of war. Good roads will facilitate the transportation of the mail, and thereby promote the purposes of commerce and political intelligence among the people. They will, by being properly directed to these objects, enhance the value of our vacant lands, a treasure of vast resource to the nation.” This is the very reasoning, by which the friends of:. the general power support its constitutionality.
6. 4 Jefferson’s Corresp. 421; 1 Kent’s Comm. Lect. 12, p. 250, 251.
7. United States v. Fisher, 2 Cranch, 358; 1 Peters’s Condensed Rep. 421; Harrison v. Sterry, 5 Cranch, 289; 2 Peters’s Condensed Rep. 260; 1 Kent’s Comm. Lect. 19, p. 229 to 233.
8. Postmaster-General v. Early, 12 Wheat. R. 136.
9. See Dugan v. United States, 3 Wheat. R. 173, 179; United States v. Buford, 3 Peters’s R. 12, 30; United State: v. Tingey, 5 Peters’s R. 115, 127, 128.
10. Cox v. United States, 6 Peters’s R. 172.
11. United States v. Tingey, 5 Peters’s R. 115, 128.
12. Act of 1st June, 1789, ch. 1.
13. 4 Elliot’s Deb. 139, 140, 141; 1 Lloyd’s Deb. 218 to 225.
14. 4 Elliot’s Debates, 238, 239, 240.
15. Elliot’s Debates, 240. See Id. 265.
16. 4 Jefferson’s Corresp. 499.