James Madison Papers

James Madison to Martin Van Buren, 20 September 1826

Montpellier Sepr. 20. 1826

Dear Sir

Your letter of Aug. 30. has been longer unanswered than I could have wished: but the delay has been unavoidable. And I am sensible now that the subject of it invited more of development, than sucessive occurrences calling off my attention, have permitted. The brief view taken of it, will at least be a proof of my disposition to comply with your request, which I regard as a private one, as you will be pleased to regard the answer to it.

I should certainly feel both gratification & obligation in giving any aid in my power towards making the Constitution more appropriate to its objects, and more satisfactory to the nation. But I feel also the arduousness of such a task, arising as well from the difficulty of partitioning and defining Legislative powers, as from the existing diversity of opinions concerning the proper arrangement of the power in question over internal improvements.

Give the power to the General Government as possessing the means most adequate, and the objections are 1. the danger of abuses in the application of the means to objects so distant from the eye of a Government, itself so distant from the eye of the people. 2. the danger from an increase of the patronage and pecuniary transactions of the General Government, that the equilibrium between that and the State Governments may not be preserved.

Leave the power exclusively with the States, and the objections are 1. that being deprived by the Constitution and even by their local relations (as was generally experienced before the present Constitution was established) of the most convenient source of revenue the impost on Commerce, improvements might not be made even in cases wholly within their own limits. 2. that in cases where roads & canals ought to pass through contiguous States, the necessary co-operation might fail from a difficulty in adjusting conditions & details from a want of interest in one of them; or possibly from some jealousy or rivalship in one towards the other. 3. that where roads & canals ought to pass through a number of States, particular views of a single State might prevent improvements deeply interesting to the whole nation.

This embarrassing alternative has suggested the expedient which you seem to have contemplated, of dividing the power between the General & State Govt by allotting the appropriating branch to the former & reserving the jurisdiction to the latter. The expedient has doubtless, a captivating aspect. But to say nothing of the difficulty of defining such a division and maintaining it in practice, will the nation be at the expence of constructing roads & canals without such a jurisdiction over them as will ensure their constant subserviency to national purposes? Will not the Utility and popularity of these improvements lead to a constructive assumption of the jurisdiction by Congress, with the same sanction of their Constituents, as we see given to the exercise of the appropriating power already stretching itself beyond the appropriating limit.

It seems indeed to be understood that the policy and advantage of roads & canals have taken such extensive & pernament hold of the public will, that the constructive authority of Congress to make them will not be relinquished, either by that or the Constituent body. It becomes a serious question therefore, whether the better course be not to obviate the unconstitutional precedent, by an amendatory article expressly granting the power. Should it be found, as is very possible, that no effective system can be agreed on by Congress, the amendment will be a recorded precedent against constructive enlargements of power: and in the contrary event, the exercise of the power, will no longer be a precedent in favor of them.

In all these cases, it need not be remarked I am sure, that it is necessary to keep in view, the distinction between a usurpation of power by Congress against the will and an assumption of power with the approbation, of their Constituents. When the former occurs, as in the enactment of the Alien & Sedition laws, the appeal to their Constituents sets every thing to rights. In the latter case, the appeal can only be made to argument & conciliation, with an acquiescence, when not an extreme case, in an unsuccessful result.

If the sole object be to obtain the aid of the federal treasury for internal improvements by roads & canals, without interfering with the jurisdiction of the States, an amendment need only say "Congress may make appropriations of money for roads & Canals, to be applied to such purposes by the Legislatures of the States within their respective limits, the jurisdiction of the States remaining unimpaired".

If it be thought best to make a constitutional grant of the entire power, either as proper in itself, or made so by the moral certainty, that it will be constructively assumed, with the sanction of the national will, and operate as an injurious precedent, the amendment can not say less, than that "Congress may make roads & Canals with such jurisdiction as the cases may require"

But whilst the terms, "Common defence & general welfare" remain in the Constitution, unguarded against the construction which has been contended for, a fund of power inexhaustible, & wholly subversive of the equilibrium between the General and the State Governments, is within the reach of the former. Why then not precede all other amendments by one, expunging the phrase, which is not required for any harmless meaning; or making it harmless, by annexing to it, the terms "in the cases authorized by this Constitution."

With this sketch of ideas which I am aware may not co-incide altogether with yours, I tender renewed assurances of my esteem & friendly wishes.

James Madison

RC (DLC: Martin Van Buren Papers); FC (DLC).

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