Thomas Benton - Thirty Years' View (Vol. I of 2)

Thus did Mr. Monroe state the question in its practical bearings, traced to their legitimate results, and the various assumptions of power, and difficulties with States or individuals which they involved; and the bare statement which he made – the bare presentation of the practical working of the system, constituted a complete argument against it, as an invasion of State rights, and therefore unconstitutional, and, he might have added, as complex and unmanageable by the federal government, and therefore inexpedient. But, after stating the question, he examined it under every head of constitutional derivation under which its advocates claimed the power, and found it to be granted by no one of them, and virtually prohibited by some of them. These were, first , the right to establish post-offices and post-roads; second , to declare war; third , to regulate commerce among the States; fourth , the power to pay the debts and provide for the common defence and general welfare of the United States; fifth , to make all laws necessary and proper to carry into effect the granted (enumerated) powers; sixth , from the power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States. Upon this long enumeration of these claimed sources of power, Mr. Monroe well remarked that their very multiplicity was an argument against them, and that each one was repudiated by some of the advocates for each of the others: that these advocates could not agree among themselves upon any one single source of the power; and that it was sought for from place to place, with an assiduity which proclaimed its non-existence any where. Still he examined each head of derivation in its order, and effectually disposed of each in its turn. 1. The post-office and post-road grant. The word "establish" was the ruling term: roads and offices were the subjects on which it was to act. And how? Ask any number of enlightened citizens, who had no connection with public affairs, and whose minds were unprejudiced, what was the meaning of the word "establish," and the extent of the grant it controls, and there would not be a difference of opinion among them. They would answer that it was a power given to Congress to legalize existing roads as post routes, and existing places as post-offices – to fix on the towns, court-houses, and other places throughout the Union, at which there should be post-offices; the routes by which the mails should be carried; to fix the postages to be paid; and to protect the post-offices and mails from robbery, by punishing those who commit the offence. The idea of a right to lay off roads to take the soil from the proprietor against his will; to establish turnpikes and tolls; to establish a criminal code for the punishment of injuries to the road; to do what the protection and repair of a road requires: these are things which would never enter into his head. The use of the existing road would be all that would be thought of; the jurisdiction and soil remaining in the State, or in those authorized by its legislature to change the road at pleasure.

2. The war power. Mr. Monroe shows the object of this grant of power to the federal government – the terms of the grant itself – its incidents as enumerated in the constitution – the exclusion of constructive incidents – and the pervading interference with the soil and jurisdiction of the States which the assumption of the internal improvement power by Congress would carry along with it. He recites the grant of the power to make war, as given to Congress, and prohibited to the States, and enumerates the incidents granted along with it, and necessary to carrying on war: which are, to raise money by taxes, duties, excises, and by loans; to raise and support armies and a navy; to provide for calling out, arming, disciplining, and governing the militia, when in the service of the United States; establishing fortifications, and to exercise exclusive jurisdiction over the places granted by the State legislatures for the sites of forts, magazines, arsenals, dock-yards, and other needful buildings. And having shown this enumeration of incidents, he very naturally concludes that it is an exclusion of constructive incidents, and especially of one so great in itself, and so much interfering with the soil and jurisdiction of the States, as the federal exercise of the road-making power would be. He exhibits the enormity of this interference by a view of the extensive field over which it would operate. The United States are exposed to invasion through the whole extent of their Atlantic coast (to which may now be added seventeen degrees of the Pacific coast) by any European power with whom we might be engaged in war: on the northern and northwestern frontier, on the side of Canada, by Great Britain, and on the southern by Spain, or any power in alliance with her. If internal improvements are to be carried on to the full extent to which they may be useful for military purposes, the power, as it exists, must apply to all the roads of the Union, there being no limitation to it. Wherever such improvements may facilitate the march of troops, the transportation of cannon, or otherwise aid the operations, or mitigate the calamities of war along the coast, or in the interior, they would be useful for military purposes, and might therefore be made. They must be coextensive with the Union. The power following as an incident to another power can be measured, as to its extent, by reference only to the obvious extent of the power to which it is incidental. It has been shown, after the most liberal construction of all the enumerated powers of the general government, that the territory within the limits of the respective States belonged to them; that the United States had no right, under the powers granted to them (with the exceptions specified), to any the smallest portion of territory within a State, all those powers operating on a different principle, and having their full effect without impairing, in the slightest degree, this territorial right in the States. By specifically granting the right, as to such small portions of territory as might be necessary for these purposes (forts, arsenals, magazines, dock-yards and other needful buildings ), and, on certain conditions, minutely and well defined, it is manifest that it was not intended to grant it, as to any other portion, for any purpose, or in any manner whatever. The right of the general government must be complete, if a right at all. It must extend to every thing necessary to the enjoyment and protection of the right. It must extend to the seizure and condemnation of the property, if necessary; to the punishment of the offenders for injuries to the roads and canals; to the establishment and enforcement of tolls; to the unobstructed construction protection, and preservation of the roads. It must be a complete right, to the extent above stated, or it will be of no avail. That right does not exist.

3. The commercial power. Mr. Monroe argues that the sense in which the power to regulate commerce was understood and exercised by the States, was doubtless that in which it was transferred to the United States; and then shows that their regulation of commerce was by the imposition of duties and imposts; and that it was so regulated by them (before the adoption of the constitution), equally in respect to each other, and to foreign powers. The goods, and the vessels employed in the trade, are the only subject of regulation. It can act on none other. He then shows the evil out of which that grant of power grew, and which evil was, in fact, the predominating cause in the call for the convention which framed the federal constitution. Each State had the right to lay duties and imposts, and exercised the right on narrow, jealous, and selfish principles. Instead of acting as a nation in regard to foreign powers, the States, individually, had commenced a system of restraint upon each other, whereby the interests of foreign powers were promoted at their expense. This contracted policy in some of the States was counteracted by others. Restraints were immediately laid on such commerce by the suffering States; and hence grew up a system of restrictions and retaliations, which destroyed the harmony of the States, and threatened the confederacy with dissolution. From this evil the new constitution relieved us; and the federal government, as successors to the States in the power to regulate commerce, immediately exercised it as they had done, by laying duties and imposts, to act upon goods and vessels: and that was the end of the power.