James Madison Papers
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From James Madison to the House of Representatives, 3 March 1817

To the House of Representatives

March 3, 1817

Having considered the bill, this day, presented to me, entitled “An Act to set apart and pledge certain funds for internal improvements” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote and give Security to internal commerce among the several States, and to render more easy and less expensive the means & provisions for the common defence”; I am constrained, by the insuperable dificulty I feel in reconciling the bill with the constitution of the U. States, to return it with that objection, to the House of Representatives, in which it originated.1

The legislative powers vested in Congress are specified and enumerated in the 8th. Section of the 1st article of the constitution; and it does not appear that the powers proposed to be exercise[d] by this bill is among the enumerated powers; or that it falls by any just interpretation, within the power to make laws necessary and proper for carrying into execution those or other powers vested by the constitution in the government of the U. States.

“The power to regulate commerce among the several States,” cannot include a power to construct roads and canals, and to improve the navigation of water courses, in order to facilitate, promote, & secure such a commerce, without a latitude of construction departing from the ordinary import of terms, strengthened by the known inconveniencies which doubtless led to the grant of this remedial power to congress.

“To refer the power in question to the clause to provide for the common defence & general welfare,” would be contrary to the established and consistent rules of interpretation; as rendering the special and careful enumeration of powers, which follow the clause nugatory & improper. Such a view of the constitution would have the effect of giving to Congress, a general power of legislation, instead of the defined and limited one hitherto understood to belong to them; the terms “common defence and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the constitution and laws of the Several States, in all cases not specifically exempted, to be superseded by laws of Congress; it being expressly declared “that the constitution of the U. States, and laws made in pursuance thereof, shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the constitution, finally, would have the effect of excluding the judicial authority of the U. States from its participation in guarding the boundary between the legislative powers of the general & State governments; inasmuch as questions relating to the general welfare, being questions of expediency & policy, are unsusceptible of judicial cognizance & decision.

A restriction of the power “to provide for the common defence & general welfare” to cases which are to be provided for by the expenditure of money, would still leave within the legislative power of Congress, all the great and most important measures of government; money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads & canals & to improve the navigation and water courses, with the train of powers incident thereto be not possessed by Congress, the assent of the states in the mode provided in the bill cannot confer the power. The only cases in which the consent and session of particular states can extend the power of Congress, are those specified and provided for in the constitution.

I am not unaware of the great importance of roads and canals, and the improved navigation of water courses; and that a power in the national legislature to provide for them might be exe[r]cised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the constitution; and believing that it cannot be deduced from any part of it without an inadmissible latitude of construction, and a reliance on insufficient precedents; believing also that the permanent success of the constitution depends on a definite partition of powers between the general and state government and that no adequate land marks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it; and to cherish the hope that its beneficial objects may be obtained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the consititution in its actual form, and providently marked out in the instrument itself, a safe and practicable mode of improving it, as experience might suggest.

James Madison

Tr (DNA: RG 233, Journal of the House of Representatives, 14th Cong., 2d sess.); draft (DLC, series 7, box 1).

1For the text of the bill, which stipulated that the dividend to be paid to the United States from its shares in the stock of the Bank of the United States should be pledged as a fund for the construction of roads and canals, and the improvement of the navigation of watercourses to “give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions necessary for their common defence,” with the funds to be apportioned among the states with their consent and based on their representation “in the most numerous branch of the National Legislature,” see Annals of Congress description begins Debates and Proceedings in the Congress of the United States […] (42 vols.; Washington, D.C., 1834–56). description ends , 14th Cong., 2d sess., 1061–62. The House, by a vote of 60 to 56, failed to override JM’s veto (ibid., 1062).

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