Part 22

Public opinion with regard to the value and importance of internal improvements in the country is undivided. There is a disposition on all hands to have them prosecuted with energy and to see the benefits sought to be attained by them fully realized.

The prominent point of difference between those who have been regarded as the friends of a system of internal improvements by the General Government and those adverse to such a system has been one of constitutional power, though more or less connected with considerations of expediency.

My own judgment, it is well known, has on both grounds been opposed to "a general system of internal improvements" by the Federal Government. I have entertained the most serious doubts from the inherent difficulties of its application, as well as from past unsatisfactory experience, whether the power could be so exercised by the General Government as to render its use advantageous either to the country at large or effectual for the accomplishment of the object contemplated.

I shall consider it incumbent on me to present to Congress at its next session a matured view of the whole subject, and to endeavor to define, approximately at least, and according to my own convictions, what appropriations of this nature by the General Government the great interests of the United States require and the Constitution will admit and sanction, in case no substitute should be devised capable of reconciling differences both of constitutionality and expediency.

In the absence of the requisite means and time for duly considering the whole subject at present and discussing such possible substitute, it becomes necessary to return this bill to the House of Representatives, in which it originated, and for the reasons thus briefly submitted to the consideration of Congress to withhold from it my approval.

FRANKLIN PIERCE.

WASHINGTON, December 30, 1854.

To the Senate and House of Representatives:

In returning to the House of Representatives, in which it originated, a bill entitled "An act making appropriations for the repair, preservation, and completion of certain public works heretofore commenced under the authority of law," it became necessary for me, owing to the late day at which the bill was passed, to state my objections to it very briefly, announcing at the same time a purpose to resume the subject for more deliberate discussion at the present session of Congress; for, while by no means insensible of the arduousness of the task thus undertaken by me, I conceived that the two Houses were entitled to an exposition of the considerations which had induced dissent on my part from their conclusions in this instance.

The great constitutional question of the power of the General Government in relation to internal improvements has been the subject of earnest difference of opinion at every period of the history of the United States. Annual and special messages of successive Presidents have been occupied with it, sometimes in remarks on the general topic and frequently in objection to particular bills. The conflicting sentiments of eminent statesmen, expressed in Congress or in conventions called expressly to devise, if possible, some plan calculated to relieve the subject of the embarrassments with which it is environed, while they have directed public attention strongly to the magnitude of the interests involved, have yet left unsettled the limits, not merely of expediency, but of constitutional power, in relation to works of this class by the General Government.

What is intended by the phrase "internal improvements"? What does it embrace and what exclude? No such language is found in the Constitution. Not only is it not an expression of ascertainable constitutional power, but it has no sufficient exactness of meaning to be of any value as the basis of a safe conclusion either of constitutional law or of practical statesmanship.

President John Quincy Adams, in claiming on one occasion, after his retirement from office, the authorship of the idea of introducing into the administration of the affairs of the General Government "a permanent and regular system" of internal improvements, speaks of it as a system by which "the whole Union would have been checkered over with railroads and canals," affording "high wages and constant employment to hundreds of thousands of laborers;" and he places it in express contrast with the construction of such works by the legislation of the States and by private enterprise.

It is quite obvious that if there be any constitutional power which authorizes the construction of "railroads and canals" by Congress, the same power must comprehend turnpikes and ordinary carriage roads; nay, it must extend to the construction of bridges, to the draining of marshes, to the erection of levees, to the construction of canals of irrigation; in a word, to all the possible means of the material improvement of the earth, by developing its natural resources anywhere and everywhere, even within the proper jurisdiction of the several States. But if there be any constitutional power thus comprehensive in its nature, must not the same power embrace within its scope other kinds of improvement of equal utility in themselves and equally important to the welfare of the whole country? President Jefferson, while intimating the expediency of so amending the Constitution as to comprise objects of physical progress and well-being, does not fail to perceive that "other objects of public improvement," including "public education" by name, belong to the same class of powers. In fact, not only public instruction, but hospitals, establishments of science and art, libraries, and, indeed, everything appertaining to the internal welfare of the country, are just as much objects of internal improvement, or, in other words, of internal utility, as canals and railways.

The admission of the power in either of its senses implies its existence in the other; and since if it exists at all it involves dangerous augmentation of the political functions and of the patronage of the Federal Government, we ought to see clearly by what clause or clauses of the Constitution it is conferred.

I have had occasion more than once to express, and deem it proper now to repeat, that it is, in my judgment, to be taken for granted, as a fundamental proposition not requiring elucidation, that the Federal Government is the creature of the individual States and of the people of the States severally; that the sovereign power was in them alone; that all the powers of the Federal Government are derivative ones, the enumeration and limitations of which are contained in the instrument which organized it; and by express terms "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."

Starting from this foundation of our constitutional faith and proceeding to inquire in what part of the Constitution the power of making appropriations for internal improvements is found, it is necessary to reject all idea of there being any grant of power in the preamble. When that instrument says, "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity," it only declares the inducements and the anticipated results of the things ordained and established by it. To assume that anything more can be designed by the language of the preamble would be to convert all the body of the Constitution, with its carefully weighed enumerations and limitations, into mere surplusage. The same may be said of the phrase in the grant of the power to Congress "to pay the debts and provide for the common defense and general welfare of the United States;" or, to construe the words more exactly, they are not significant of grant or concession, but of restriction of the specific grants, having the effect of saying that in laying and collecting taxes for each of the precise objects of power granted to the General Government Congress must exercise any such definite and undoubted power in strict subordination to the purpose of the common defense and general welfare of all the States.

There being no specific grant in the Constitution of a power to sanction appropriations for internal improvements, and no general provision broad enough to cover any such indefinite object, it becomes necessary to look for particular powers to which one or another of the things included in the phrase "internal improvements" may be referred.

In the discussions of this question by the advocates of the organization of a "general system of internal improvements" under the auspices of the Federal Government, reliance is had for the justification of the measure on several of the powers expressly granted to Congress, such as to establish post-offices and post-roads, to declare war, to provide and maintain a navy, to raise and support armies, to regulate commerce, and to dispose of the territory and other public property of the United States,

As to the last of these sources of power, that of disposing of the territory and other public property of the United States, it may be conceded that it authorizes Congress, in the management of the public property, to make improvements essential to the successful execution of the trust; but this must be the primary object of any such improvement, and it would be an abuse of the trust to sacrifice the interest of the property to incidental purposes.

As to the other assumed sources of a general power over internal improvements, they being specific powers of which this is supposed to be the incident, if the framers of the Constitution, wise and thoughtful men as they were, intended to confer on Congress the power over a subject so wide as the whole field of internal improvements, it is remarkable that they did not use language clearly to express it, or, in other words, that they did not give it as a distinct and substantive power instead of making it the implied incident of some other one; for such is the magnitude of the supposed incidental power and its capacity of expansion that any system established under it would exceed each of the others in the amount of expenditure and number of the persons employed, which would thus be thrown upon the General Government.

This position may be illustrated by taking as a single example one of the many things comprehended clearly in the idea of "a general system of internal improvements," namely, roads. Let it be supposed that the power to construct roads over the whole Union, according to the suggestion of President J.Q. Adams in 1807, whilst a member of the Senate of the United States, had been conceded. Congress would have begun, in pursuance of the state of knowledge at the time, by constructing turnpikes; then, as knowledge advanced, it would have constructed canals, and at the present time it would have been embarked in an almost limitless scheme of railroads.

Now there are in the United States, the results of State or private enterprise, upward of 17,000 miles of railroads and 5,000 miles of canals; in all, 22,000 miles, the total cost of which may be estimated at little short of $600,000,000; and if the same works had been constructed by the Federal Government, supposing the thing to have been practicable, the cost would have probably been not less than $900,000,000. The number of persons employed in superintending, managing, and keeping up these canals and railroads may be stated at 126,000 or thereabouts, to which are to be added 70,000 or 80,000 employed on the railroads in construction, making a total of at least 200,000 persons, representing in families nearly 1,000,000 souls, employed on or maintained by this one class of public works in the United States.

In view of all this, it is not easy to estimate the disastrous consequences which must have resulted from such extended local improvements being undertaken by the General Government. State legislation upon this subject would have been suspended and private enterprise paralyzed, while applications for appropriations would have perverted the legislation of Congress, exhausted the National Treasury, and left the people burdened with a heavy public debt, beyond the capacity of generations to discharge.

Is it conceivable that the framers of the Constitution intended that authority drawing after it such immense consequences should be inferred by implication as the incident of enumerated powers? I can not think this, and the impossibility of supposing it would be still more glaring if similar calculations were carried out in regard to the numerous objects of material, moral, and political usefulness of which the idea of internal improvement admits. It may be safely inferred that if the framers of the Constitution had intended to confer the power to make appropriations for the objects indicated, it would have been enumerated among the grants expressly made to Congress.. When, therefore, any one of the powers actually enumerated is adduced or referred to as the ground of an assumption to warrant the incidental or implied power of "internal improvement," that hypothesis must be rejected, or at least can be no further admitted than as the particular act of internal improvement may happen to be necessary to the exercise of the granted power. Thus, when the object of a given road, the clearing of a particular channel, or the construction of a particular harbor of refuge is manifestly required by the exigencies of the naval or military service of the country, then it seems to me undeniable that it may be constitutionally comprehended in the powers to declare war, to provide and maintain a navy, and to raise and support armies. At the same time, it would be a misuse of these powers and a violation of the Constitution to undertake to build upon them a great system of internal improvements. And similar reasoning applies to the assumption of any such power as is involved in that to establish post-roads and to regulate commerce. If the particular improvement, whether by land or sea, be necessary to the execution of the enumerated powers, then, but not otherwise, it falls within the jurisdiction of Congress. To this extent only can the power be claimed as the incident of any express grant to the Federal Government.

But there is one clause of the Constitution in which it has been suggested that express authority to construct works of internal improvement has been conferred on Congress, namely, that which empowers it "to exercise exclusive legislation in all cases whatsoever over such district (not exceeding 10 miles square) as may by cession of particular States and the acceptance of Congress become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings..." But any such supposition will be seen to be groundless when this provision is carefully examined and compared with other parts of the Constitution.

It is undoubtedly true that "like authority" refers back to "exclusive legislation in all cases whatsoever" as applied to the District of Columbia, and there is in the District no division of powers as between the General and the State Governments.

In those places which the United States has purchased or retains within any of the States--sites for dockyards or forts, for example--legal process of the given State is still permitted to run for some purposes, and therefore the jurisdiction of the United States is not absolutely perfect. But let us assume for the argument's sake that the jurisdiction of the United States in a tract of land ceded to it for the purpose of a dockyard or fort by Virginia or Maryland is as complete as in that ceded by them for the seat of Government, and then proceed to analyze this clause of the Constitution.

It provides that Congress shall have certain legislative authority over all places purchased by the United States for certain purposes. It implies that Congress has otherwise the power to purchase. But where does Congress get the power to purchase? Manifestly it must be from some other clause of the Constitution, for it is not conferred by this one. Now, as it is a fundamental principle that the Constitution is one of limited powers, the authority to purchase must be conferred in one of the enumerations of legislative power; so that the power to purchase is itself not an unlimited one, but is limited by the objects in regard to which legislative authority is directly conferred.