James Madison Papers

From James Madison to Edward Livingston, [17] April 1824

To Edward Livingston

Montpellier Apl. [17] 1824

Dear Sir

I have been retarded in thanking you for the copy of your Speech on the subject of internal improvement,1 by a necessary absence from home, and by successive occurrences since my return. I now beg you to accept that debt to your kindness.

I have read your observations with a due perception of the ability which pervades & the eloquence which adorns them, and I must add not without the pleasure of noticing that you have pruned from the doctrine of some of your fellow labourers, its most luxuriant branches. I can not but think at the same time that you have left the root in too much vigour. This appears particularly in the question of Canals. My impression with respect to the Authority to make them may be the stronger perhaps, (as I had occasion to remark as to the Bank on its original discussion)2 from my recollection that the authority had been repeatedly proposed in the Convention, and negatived either as improper to be vested in Congress, or as a power not likely to be yielded by the States. My impression is also very decided that if the construction which brings Canals within the scope of commercial regulations, had been advanced or admitted by the Advocates of the Constitution in the State Conventions, it would have been impossible to overcome the opposition to it. It is remarkable that Mr. Hamilton himself, the strenuous patron of an expansive meaning in the text of the Constitution, with the views of the Convention fresh in his memory, and in a Report contending for the most liberal rules of interpretation, was obliged by his candour to admit that they could not embrace the case of Canals.3

In forbearing to exercise doubtful powers, especially where not immediately and manifestly necessary, I entirely agree with you. I view our political system also, as you do, as a combination & modification of powers without a model; as emphatically sui generis, of which one remarkable feature is, its annihilation of a power inherent in some branch of all other Governments, that of taxing exports. I wish moreover that you might be followed in the example of defining the terms used in argument, the only effectual precaution against fruitless & endless discussion. This logical precept is peculiarly essential in debating Constitutional questions, to which for want of more appropriate words, such are often applied as lead to error & confusion. Known words express known ideas: and new ideas, such as are presented by our Novel & Unique political System, must be expressed either by new words, or by old words with new definitions. Without attention to this circumstance, volumes may be written which can only be answered by a call for definitions, and which answer themselves as soon as the call is complied with.

It cannot be denied without forgetting what belongs to human nature, that in consulting the cotemporary writings, which vindicated and recommended the Constitution, it is fair to keep in mind that the Authors might be sometimes influenced by the zeal of advocates; But in expounding it now, is the danger of bias less, from the influence of local interests, of popular currents, and even from an estimate of national utility.

Having rambled thus far I venture on another devious step, by alluding to your inference from a passage in one of my messages, that in a subsequent one, my objection was not to the power, but to the details of the Bill in which it was exercised.4 If the language was not more carefully guarded against such an inference it must have been because I relied on a presumed notoriety of my opinion on the subject; and probably considered the terms “existing powers” as essentially satisfied by the uncontested authority of Congress over the Territories. With great esteem & friendly respects

James Madison

RC (MB); Tr (DLC). Day of month not indicated; conjectural day assigned based on date of Tr. RC docketed by Livingston. Minor differences between the copies have not been noted.

1Edward Livingston, Speech of Mr. Livingston, of Louisiana, on the Subject of Internal Improvement … (Washington, 1824; Shoemaker description begins Richard H. Shoemaker, comp., A Checklist of American Imprints for 1820–1829 (11 vols.; New York, 1964–72). description ends 16928).

2For JM’s original opinion on the unconstitutionality of a national bank, see his speeches in the U.S. House of Representatives, 2 and 8 Feb. 1791, and his Draft Veto of the Bank Bill, 21 Feb. 1791, PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends , 13:373–81, 383–87, 395.

3In his “Opinion on the Constitutionality of an Act to Establish a Bank,” 23 Feb. 1791, Alexander Hamilton wrote that in the debate in the Constitutional Convention over the power of Congress to make corporations that “as far as any such document exists, it specifies only canals. If this was the amount of it, it would at most only prove, that it was thought inexpedient to give a power to incorporate for the purpose of opening canals, for which purpose a special power would have been necessary” (Syrett and Cooke, Papers of Alexander Hamilton, 8:110).

4In Livingston’s speech (see n. 1 above), he quoted from JM’s eighth annual message to Congress, 3 Dec. 1816, in which JM invited the attention of Congress “to the expediency of exercising their existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them, in order to effectuate a comprehensive system of roads and canals” (Madison, Writings [Hunt ed.], 8:380). In JM’s veto message of 3 Mar. 1817, he wrote that he was “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 exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; … I have no option but to withhold my signature” [from the bill] (ibid., 388).

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