Article 1, Section 8, Clause 18

Document 19

James Madison to Reynolds Chapman

For my general opinion on the question of Internal Improvements, I may refer to the veto message agst. the "Bonus Bill," at the close of the session of Congs. in March 1817. The message denies the constitutionality as well of the appropriating as of the Executing and Jurisdictional branches of the power. And my opinion remains the same, subject, as heretofore, to the exception of particular cases, where a reading of the Constitution, different from mine may have derived from a continued course of practical sanctions an authority sufficient to overrule individual constructions.

It is not to be wondered that doubts & difficulties should occur in expounding the Constitution of the U. States. Hitherto the aim, in well-organized Governments, has been to discriminate & distribute the Legislative, Executive, and Judiciary powers; and these sometimes touch so closely or rather run the one so much into the other, as to make the task difficult, and leave the lines of division obscure. A settled practice, enlightened by occurring cases, and obviously conformable to the public good, can alone remove the obscurity. The case is parallel in new statutes on complex subjects.

In the Constitution of the U. S. where each of these powers is divided, and portions alloted to different Governments, and where a language technically appropriate may be deficient, the wonder wd. be far greater if different rules of exposition were not applied to the text by different commentators.

Thus it is found that in the case of the Legislative department particularly, where a division & definition of the powers according to their specific objects is most difficult, the Instrument is read by some as if it were a Constitution for a single Govt. with powers co-extensive with the general welfare, and by others interpreted as if it were an ordinary statute, and with the strictness almost of a penal one.

Between these adverse constructions an intermediate course must be the true one, and it is hoped that it will finally if not otherwise settled be prescribed by an amendment of the Constitution. In no case is a satisfactory one more desirable than in that of internal improvements, embracing Roads, Canals, Light Houses, Harbours, Rivers, and other lesser objects.

With respect to Post Roads, the general view taken of them in the manuscript, shows a way of thinking on the subject with which mine substantially accords. Roads, when plainly necessary for the march of troops and for military transportations, must speak for themselves, as occasions arise.

Canals as an Item in the general improvement of the Country have always appeared to me not to be embraced by the authority of Congs. It may be remarked that Mr. Hamilton, in his Report on the Bank, when enlarging the range of construction to the utmost of his ingenuity, admitted that Canals were beyond the sphere of Federal Legislation.

Light Houses having a close and obvious relation to navigation and external commerce, and to the safety of public as well as private ships, and having recd. a positive sanction and general acquiescence from the commencement of the Federal Government, the constitutionality of them is I presume not now to be shaken if it were ever much contested. It seems, however, that the power is liable to great abuse, and to call for the most careful & responsible scrutiny into every particular case before an application be complied with.

Harbours, within the above character, seem to have a like claim on the Federal authority. But what an interval between such a Harbour as that of N. York or N. Orleans and the mouth of a creek forming an outlet for the trade of a single State or part of a State into a navigable stream; and the principle of which would authorize the improvement of every road leading out of the State towards a destined market.

What again the interval between clearing of its sawyers &c. the Mississippi the commercial highway for half the nation, and removing obstructions by which the navigation of an inconsiderable stream may be extended a few miles only within a single State.

The navigation of the Mississippi is so important in a national view, so essentially belongs to the foreign commerce of many States, and the task of freeing it from obstructions is so much beyond the means of a single State, and beyond a feasible concert of all who are interested in it, that claims on the authority and resources of the nation will continue to be, as they have been irresistible. Those who regard it as a case not brought by these features within the legitimate powers of Congress, must of course oppose the claim, and with it every inferior claim. Those who admit the power as applicable to a case of that description, but disown it in every case not marked by adequate peculiarities, must find, as they can, a line separating this admissible class from the others; a necessity but too often to be encountered in a legislative career.

Perhaps I ought not to omit the remark that altho' I concur in the defect of powers in Congress on the subject of internal improvements, my abstract opinion has been that in the case of Canals particularly, the power would have been properly vested in Congress. It was more than once proposed in the Convention of 1787, & rejected from an apprehension, chiefly that it might prove an obstacle to [Volume 3, Page 263] the adoption of the Constitution. Such an addition to the Federal powers was thought to be strongly recommended by several considerations. 1. As Congress would possess, exclusively, the sources of Revenue most productive and least unpopular, that body ought to provide & apply the means for the greatest & most costly works. 2. There would be cases where Canals would be highly important in a national view, and not so in a local view. 3. Cases where, tho' highly important in a national view, they might violate the interest real or supposed of the State through which they would pass; of which an example might now be cited in the Chesapeake & Delaware canal, known to have been viewed in an unfavourable light by the State of Delaware. 4. There might be cases where Canals, or a chain of Canals, would pass through sundry States, and create a channel and outlet for their foreign commerce, forming at the same time a ligament for the Union, and extending the profitable intercourse of its members, and yet be of hopeless attainment if left to the limited faculties and joint exertions of the States possessing the authority.

It cannot be denied, that the abuse to which the exercise of the power in question has appeared to be liable in the hands of Congress, is a heavy weight in the scale opposed to it. But may not the evil have grown, in a great degree, out of a casual redundancy of revenue, and a temporary apathy to a burden bearing indirectly on the people, and mingled, moreover, with the discharge of debts of peculiar sanctity. It might not happen, under ordinary circumstances, that taxes even of the most disguised kind, would escape a wakeful controul on the imposition & application of them. The late reduction of duties on certain imports and the calculated approach of an extinguishment of the public debt, have evidently turned the popular attention to the subject of taxes, in a degree quite new; and it is more likely to increase than to relax. In the event of an amendment of the Constitution, guards might be devised against a misuse of the power without defeating an important exercise of it. If I err or am too sanguine in the views I indulge it must be ascribed to my conviction that canals, railroads, and turnpikes are at once the criteria of a wise policy and causes of national prosperity; that the want of them will be a reproach to our Republican system, if excluding them, and that the exclusion, to a mortifying extent will ensue if the power be not lodged where alone it can have its due effect.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 18, Document 19
http://press-pubs.uchicago.edu/founders/documents/a1_8_18s19.html
The University of Chicago Press

The Writings of James Madison. Edited by Gaillard Hunt. 9 vols. New York: G. P. Putnam's Sons, 1900--1910. See also: Federalist