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

4. To pay the debts and provide for the common defence and general welfare of the Union. Mr. Monroe considers this "common defence" and "general welfare" clause as being no grant of power, but, in themselves, only an object and end to be attained by the exercise of the enumerated powers. They are found in that sense in the preamble to the constitution, in company with others, as inducing causes to the formation of the instrument, and as benefits to be obtained by the powers granted in it. They stand thus in the preamble: "In order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution." These are the objects to be accomplished, but not by allowing Congress to do what it pleased to accomplish them (in which case there would have been no need for investing it with specific powers), but to be accomplished by the exercise of the powers granted in the body of the instrument. Considered as a distinct and separate grant, the power to provide for the "common defence" and the "general welfare," or either of them, would give to Congress the command of the whole force, and of all the resources of the Union – absorbing in their transcendental power all other powers, and rendering all the grants and restrictions nugatory and vain. The idea of these words forming an original grant, with unlimited power, superseding every other grant, is (must be) abandoned. The government of the United States is a limited government, instituted for great national purposes, and for those only. Other interests are left to the States individually, whose duty it is to provide for them. Roads and canals fall into this class, the powers of the General Government being utterly incompetent to the exercise of the rights which their construction, and protection, and preservation require. Mr. Monroe examines the instances of roads made in territories, and through the Indian countries, and the one upon Spanish territory below the 31st degree of north latitude (with the consent of Spain), on the route from Athens in Georgia to New Orleans, before we acquired the Floridas; and shows that there was no objection to these territorial roads, being all of them, to the States, ex-territorial. He examines the case of the Cumberland road, made within the States, and upon compact, but in which the United States exercised no power, founded on any principle of "jurisdiction or right." He says of it: This road was founded on an article of compact between the United States and the State of Ohio, under which that State came into the Union, and by which the expense attending it was to be defrayed by the application of a certain portion of the money arising from the sales of the public lands within the State. And, in this instance, the United States have exercised no act of jurisdiction or sovereignty within either of the States through which the road runs, by taking the land from the proprietors by force – by passing acts for the protection of the road – or to raise a revenue from it by the establishment of turnpikes and tolls – or any other act founded on the principles of jurisdiction or right. And I can add, that the bill passed by Congress, and which received his veto, died under his veto message, and has never been revised, or attempted to be revised, since; and the road itself has been abandoned to the States.

5. The power to make all laws which shall be necessary and proper to carry into effect the powers specifically granted to Congress. This power, as being the one which chiefly gave rise to the latitudinarian constructions which discriminated parties, when parties were founded upon principle, is closely and clearly examined by Mr. Monroe, and shown to be no grant of power at all, nor authorizing Congress to do any thing which might not have been done without it, and only added to the enumerated powers, through caution, to secure their complete execution. He says: I have always considered this power as having been granted on a principle of greater caution, to secure the complete execution of all the powers which had been vested in the General Government. It contains no distinct and specific power, as every other grant does, such as to lay and collect taxes, to declare war, to regulate commerce, and the like. Looking to the whole scheme of the General Government, it gives to Congress authority to make all laws which should be deemed necessary and proper for carrying all its powers into effect. My impression has invariably been, that this power would have existed, substantially, if this grant had not been made. It results, by necessary implication (such is the tenor of the argument), from the granted powers, and was only added from caution, and to leave nothing to implication. To act under it, it must first be shown that the thing to be done is already specified in one of the enumerated powers. This is the point and substance of Mr. Monroe's opinion on this incidental grant, and which has been the source of division between parties from the foundation of the government – the fountain of latitudinous construction – and which, taking the judgment of Congress as the rule and measure of what was "necessary and proper" in legislation, takes a rule which puts an end to the limitations of the constitution, refers all the powers of the body to its own discretion, and becomes as absorbing and transcendental in its scope as the "general welfare" and "common defence clauses" would be themselves.

6. The power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States. This clause, as a source of power for making roads and canals within a State, Mr. Monroe disposes of summarily, as having no relation whatever to the subject. It grew out of the cessions of territory which different States had made to the United States, and relates solely to that territory (and to such as has been acquired since the adoption of the constitution), and which lay without the limits of a State. Special provision was deemed necessary for such territory, the main powers of the constitution operating internally, not being applicable or adequate thereto; and it follows that this power gives no authority, and has even no bearing on the subject.

Such was this great state paper, delivered at a time when internal improvement by the federal government, having become an issue in the canvass for the Presidency, and ardently advocated by three of the candidates, and qualifiedly by two others, had an immense current in its favor, carrying many of the old strict constitutionists along with it. Mr. Monroe stood firm vetoed the bill which assumed jurisdiction over the Cumberland road, and drew up his sentiments in full, for the consideration of Congress and the country. His argument is abridged and condensed in this view of it; but his positions and conclusions preserved in full, and with scrupulous correctness. And the whole paper, as an exposition of the differently understood parts of the constitution, by one among those most intimately acquainted with it, and as applicable to the whole question of constructive powers, deserves to be read and studied by every student of our constitutional law. The only point at which Mr. Monroe gave way, or yielded in the least, to the temper of the times, was in admitting the power of appropriation – the right of Congress to appropriate, but not to apply money – to internal improvements; and in that he yielded against his earlier, and, as I believe, better judgment. He had previously condemned the appropriation as well as the application, but finally yielded on this point to the counsels that beset him; but nugatorially, as appropriation without application was inoperative, and a balk to the whole system. But an act was passed soon after for surreys – for making surveys of routes for roads and canals of general and national importance, and the sum of $30,000 was appropriated for that purpose. The act was as carefully guarded as words could do so, in its limitation to objects of national importance, but only presented another to the innumerable instances of the impotency of words in securing the execution of a law. The selection of routes under the act, rapidly degenerated from national to sectional, from sectional to local, and from local to mere neighborhood improvements. Early in the succeeding administration, a list of some ninety routes were reported to Congress, from the Engineer Department, in which occurred names of places hardly heard of before outside of the State or section in which they were found. Saugatuck, Amounisuck, Pasumic, Winnispiseogee, Piscataqua, Titonic Falls, Lake Memphramagog, Conneaut Creek, Holmes' Hole, Lovejoy's Narrows, Steele's Ledge, Cowhegan, Androscoggin, Cobbiesconte, Ponceaupechaux, alias Soapy Joe, were among the objects which figured in the list for national improvement. The bare reading of the list was a condemnation of the act under which they were selected, and put an end to the annual appropriations which were in the course of being made for these surveys. No appropriation was made after the year 1827. Afterwards the veto message of President Jackson put an end to legislation upon local routes, and the progress of events has withdrawn the whole subject – the subject of a system of national internal improvement, once so formidable and engrossing in the public mind – from the halls of Congress, and the discussions of the people. Steamboats and steam-cars have superseded turnpikes and canals; individual enterprise has dispensed with national legislation. Hardly a great route exists in any State which is not occupied under State authority. Even great works accomplished by Congress, at vast cost and long and bitter debates in Congress, and deemed eminently national at the time, have lost that character, and sunk into the class of common routes. The Cumberland road, which cost $6,670,000 in money, and was a prominent subject in Congress for thirty-four years – from 1802, when it was conceived to 1836, when it was abandoned to the States: this road, once so absorbing both of public money and public attention, has degenerated into a common highway, and is entirely superseded by the parallel railroad route. The same may be said, in a less degree, of the Chesapeake and Ohio canal, once a national object of federal legislation intended, as its name imports, to connect the tide water of the Atlantic with the great rivers of the West; now a local canal, chiefly used by some companies, very beneficial in its place, but sunk from the national character which commanded for it the votes of Congress and large appropriations from the federal treasury. Mr. Monroe was one of the most cautious and deliberate of our public men, thoroughly acquainted with the theory and the working of the constitution, his opinions upon it entitled to great weight; and on this point (of internal improvement within the States by the federal government) his opinion has become law. But it does not touch the question of improving national rivers or harbors yielding revenue – appropriations for the Ohio and Mississippi and other large streams, being easily had when unincumbered with local objects, as shown by the appropriation, in a separate bill, in 1824, of $75,000 for the improvement of these two rivers, and which was approved and signed by Mr. Monroe.