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Like its predecessors, The Constitution in Congress: Democrats and Whigs will be an invaluable reference for legal scholars and constitutional historians alike.
Product Details
| ISBN-13: | 9780226116280 |
|---|---|
| Publisher: | University of Chicago Press |
| Publication date: | 12/04/2013 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 370 |
| File size: | 706 KB |
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The Constitution in Congress
Democrats and Whigs 1829â"1861
By David P. Currie
The University of Chicago Press
Copyright © 2005 The University of ChicagoAll rights reserved.
ISBN: 978-0-226-12900-6
CHAPTER 1
Intercourse
Federal support for transportation began in 1789, when Congress, apparently without pausing to talk much about the source of its authority, took over the lighthouses. Then, in 1802, it promised to dedicate a portion of the proceeds from public land sales to build a highway to and through the new state of Ohio—the beginning of the famous Cumberland Road. Once again there was little effort to explain.
As advocates unsuccessfully urged federal support for additional transport projects—canals to connect Chesapeake and Delaware Bays, to bypass rapids on the Ohio River, to traverse New York State—they developed plausible constitutional arguments to support them. Roads and canals were necessary and proper to the regulation of commerce, to delivery of the mails, to the national defense. Alternatively, as John C. Calhoun told the Senate in proposing that the bonus the second National Bank paid for its charter be set aside to fund a comprehensive system of roads and canals, Congress could tax and therefore spend for anything that served the "general welfare of the United States," as many such "internal improvements" plainly did.
As I have related elsewhere, President Madison took a narrower view of congressional authority, vetoing Calhoun's ambitious Bonus Bill on constitutional grounds on his last day in office, to everyone's great surprise. When Congress voted to charge tolls to finance repair of the Cumberland Road in 1822, President Monroe vetoed that too. Unable to reconcile earlier congressional expenditures with the traditional narrow Republican understanding of federal authority, however, Monroe conceded that Calhoun had been right about the spending power: Congress could spend for anything that benefited the country as a whole.
Monroe's reading of the commerce, postal, and war powers, I have suggested, was unduly grudging. His interpretation of the spending power, in contrast, was too broad, and traditional Jeffersonians refused to accept it. The second President Adams, on the other hand, shared none of his predecessors' constitutional reservations. Internal improvements were a centerpiece of his recommendations for legislation, and a Congress too undisciplined to consider a comprehensive program sent him a flurry of bills to promote particular projects, which he resignedly approved. As we have seen, President Jackson had begun by raising both constitutional and policy questions about federal aid for such improvements, and a few months later he slammed on the brakes.
I. THE MAYSVILLE ROAD
On May 27, 1830 Jackson vetoed a bill to authorize the Government to purchase stock in the Maysville, Washington, Paris, and Lexington Turnpike Road Company, which had been organized to construct a road between Lexington and the Ohio River, all within the state of Kentucky. The bill, he said, was unconstitutional.
As an original matter, Jackson argued, there was much to be said for the position that federal money could be spent only to carry out Congress's enumerated powers. But this interpretation, he said, had been abandoned during Jefferson's Administration by the purchase of Louisiana and by appropriations for the Cumberland Road; Madison had acknowledged the breadth of the spending power in vetoing the Bonus Bill; Monroe had recognized an authority "restricted only by the duty to appropriate [revenue] to purposes ... of general, not local, national, not State, benefit." It was too late, Jackson concluded, to go back:
for although it is the duty of all to look to [the Constitution] instead of the statute book, to repudiate at all times encroachments upon its spirit, ... it is not less true that the public good and the nature of our political institutions require that individual differences should yield to a well-settled acquiescence of the people and confederated authorities in particular constructions of the Constitution on doubtful points. Not to concede this much to the spirit of our institutions would impair their stability and defeat the objects of the Constitution itself.
Madison had said much the same thing with respect to the Bank of the United States in 1815.
But the established broad interpretation of the spending power, Jackson continued, was not enough to save the bill that was before him. For the understanding was only that Congress could finance improvements that benefited the nation as a whole, and the Maysville Road was one "of purely local character":
It has no connection with any established system of improvements; is exclusively within the limits of a State, starting at a point on the Ohio River and running out 60 miles to an interior town, and even as far as the State is interested conferring partial instead of general advantages.
Lest this argument create false impressions, Jackson added that he did not mean to imply that he would approve appropriations for improvements that were of "national" character. Though it might not be unconstitutional to support such improvements, it would be inexpedient to do so "at this time." Until the debt was paid off, there would be no surplus to expend on them. Thereafter it would seem good policy to spend federal dollars on national improvements, but only on two conditions. First, it should be done pursuant to a "general system of improvement" (one is reminded of Albert Gallatin's comprehensive 1808 plan), not by ad hoc legislation "which tolerates a scramble for appropriations." Second, the Constitution should first be amended, as Jefferson and Madison and Monroe had all recommended, to make clear the existence and limits of federal authority.
For even if Congress already had power to spend for the purpose of constructing roads and canals of national importance, the scope of that power was unclear. Moreover, as the history of the Cumberland Road showed, it was plainly inadequate to the purpose: "The right to exercise as much jurisdiction as is necessary to preserve the works and to raise funds by the collection of tolls to keep them in repair cannot be dispensed with," and Congress had no such authority. In the teeth of experience he expressed confidence that an appropriate amendment could be adopted: "The difficulty and supposed impracticability of obtaining an amendment to the Constitution in this respect is, I firmly believe, in a great degree unfounded."
What are we to make of this message? Plainly the new President meant to make a sharp break with the past. His predecessor had approved a raft of internal improvements. Jackson made clear he would have vetoed on constitutional grounds any of them he did not deem of national importance and seemed to suggest that on policy grounds he would disapprove even a second Cumberland Road.
Congressional advocates of the Maysville Road had insisted that it was indeed of national significance, although (as opponents such as future Presidents Tyler and Polk emphasized) it lay entirely within a single state. In the first place, they argued, it was designed as part of a projected interstate highway extending from Zanesville, Ohio to Florence, Alabama; if the highway as a whole was national, each part of it must be national too. Moreover, the road itself connected the interior of Kentucky to the Ohio River and thus served as a major artery for the transportation of goods to and from other states. It was also "the great national mail route from the East to Kentucky," and in the event of war it would "again become an important military road." Congress had funded intrastate improvements before when they benefited the entire nation: "Every inch of the Delaware Canal ... is in the State of New Jersey; and every inch of the Louisville canal is in one county ...," Such reasoning, opponents responded, would make every road a national road; there would be no limit to federal authority.
II. RIVERS AND HARBORS
Four days after his Maysville veto Jackson torpedoed a second turnpike bill on identical grounds, and he soon pocket-vetoed an omnibus bill for the construction of navigation aids and the improvement of harbors because "it also contains appropriations for surveys of a local character, which I can not approve." At the same time, however, while admonishing Congress that it had been "improviden[t]" and perhaps "extravagant" in spending for navigation improvements in the past, Jackson made clear he thought federal expenditures for many navigation projects not only constitutional but also expedient:
The practice of defraying out of the Treasury of the United States the expenses incurred by the establishment and support of light-houses, beacons, buoys, and public piers within the bays, inlets, harbors, and ports of the United States, to render the navigation thereof safe and easy, is coeval with the adoption of the Constitution, and has been continued without interruption or dispute.
As foreign commerce penetrated the interior, the President continued, Congress had provided not only for similar navigational aids on inland waters but also, "upon the same principle," for "the removal of sand-bars, sawyers, and other partial or temporary impediments in the navigable rivers and harbors which were embraced within the revenue districts from time to time established by law...." And that, President Jackson concluded, was as it should be:
It is indisputable that whatever gives facility and security to navigation cheapens imports, and all who consume them are alike interested in whatever produces this effect.... The consumer in the most inland State derives the same advantage from every necessary and prudent expenditure for the facility and security of our foreign commerce and navigation that he does who resides in a maritime State.... From a bill making direct appropriations for such objects I would not have withheld my assent.
Indeed, barely a month before vetoing appropriations for the Maysville Road on the ground that its benefits were "local," Jackson had unprotestingly signed a bill appropriating over $300,000 for no fewer than twenty-two rivers and harbors projects, including one "[f]or the preservation of Plymouth Beach, Massachusetts," which on its face appeared to have no connection with navigation or commerce at all.
Jackson continued to approve river and harbor improvements throughout his Presidency, although, as Kentucky Representative Robert Letcher had implied in debating the Maysville bill, most of them too were located in a single state. Jackson's argument that they were nevertheless of national importance was basically the same as that made by supporters of the Maysville Road.
As President Jackson observed in his Maysville veto message, the distinction between "national" and "local" improvements was pretty elusive, and people might reasonably differ as to the national interest in a particular project. It was more difficult, however, to understand why Jackson declared himself so much more willing to approve expenditures for national river and harbor improvements than for national roads and canals, since he acknowledged that long-standing precedent supported them both. Comparison of the highway and harbor messages suggests he thought the two classes of improvements were based upon different congressional powers: While navigation aids and the removal of obstructions to natural watercourses were necessary and proper to the regulation of foreign commerce, roads and canals were not; they could be aided, if at all, only by appropriations pursuant to the power to tax (and thus to spend) to promote the general welfare.
As I have argued elsewhere, this distinction is unconvincing. In the first place, canals and roads may also promote foreign commerce. One need only think of land traffic between the United States and Mexico, or of the St. Lawrence Seaway, which permits ships from Europe and Asia to reach Chicago. More important, Congress may regulate interstate as well as foreign commerce, and roads are as necessary as harbors for the purpose. If Jackson was right that (as had been said at the time) congressional authorization of lighthouses and other navigational facilities in 1789 was based on the commerce power, it was good precedent for any improvements that promoted interstate or foreign intercourse, including roads and canals.
President Jackson did sign several bills to pay for repair of the Cumberland Road and other existing improvements; once a road had been built, it could hardly be permitted to go to ruin. He also approved bills to extend the road into Indiana and Illinois. He did so, however, with the intention of handing the completed highway over to the states through which it ran; for with his blessing Congress had begun the process of ceding responsibility for the road to the states, which under Monroe's and Jackson's view of the Constitution had sole authority to levy tolls for its continued support. Thus, although Congress with Jackson's approval continued to finance lighthouses and other aids to the navigation of rivers and harbors, the Federal Government was well on the way to divesting itself of its first and most conspicuous investment in roads and canals. "[T]he Era of National Projects," as one commentator has written, "may be thought of as ending in [Jackson's] administration.
III. EBB TIDE
Succeeding Democratic Presidents—and John Tyler, who had turned Whig because he thought Jackson too generous in his interpretation of federal power—took increasingly narrow views of congressional authority over internal improvements.
In loudly vetoing an omnibus rivers and harbors bill in 1844, for example, Tyler echoed Jackson's distinction between national and local improvements, but he went further. Unable to swallow Jackson's distinction between roads and canals on the one hand and the improvement of natural waterways on the other, he concluded that Congress properly had no authority over either. Rightly interpreted, he argued, the commerce clause gave Congress authority only to "adopt rules and regulations prescribing the terms and conditions on which" commerce should be conducted. And thus, he declared, as an original matter Congress should have been found to have no more power to improve existing rivers or harbors than to build roads or canals.
Like Jackson, however, Tyler was prepared to bow to long-standing precedent. Because some of the appropriations in the bill were of purely local import, he said, he had no choice but to reject them. Others, however (such as that for "the Delaware breakwater"), he could have approved if they had been presented separately, for—deplorable though it might be—the country had long accepted the validity of navigation improvements that benefited the nation as a whole. Indeed the same day he vetoed one rivers and harbors bill President Tyler signed another, providing for continuation of works on the Great Lakes (and Lake Champlain) that had already been undertaken as well as new projects to improve navigation of the Mississippi and its tributaries—for, as he said in his veto message, the very purpose of the Louisiana Purchase was to secure the free navigation of that river.
Thus in deference to perceived errors of the past President Tyler brought himself to accept "national" river and harbor improvements that Jackson had urged as a matter of conviction. In the course of his argument Tyler was also at pains to condemn the practice of combining appropriations for national and local improvements in a single bill, which he said "necessarily ... embarrass[ed] Executive action"; for in such a case, he complained, he had no choice but to veto the entire bill. Thus Tyler implicitly reaffirmed Washington's unimpeachable determination that the President possessed no item veto: Under Article I, § 7 each bill was a unit that must be approved in toto or not at all.
Tyler was replaced in 1845 by James Knox Polk of Tennessee, a former Speaker of the House and a Democrat to the core. President Polk vetoed appropriations for river and harbor improvements in 1846 and again in 1847. The first time he sounded very much like Tyler. Congress could not provide for purely local improvements, and in principle there was no difference between improving existing ways and constructing new ones. Like his predecessors, however, Polk was prepared to accept venerable precedents:
Congress have exercised the power coeval with the Constitution of establishing light-houses, beacons, buoys, and piers on our ocean and lake shores for the purpose of rendering navigation safe and easy and of affording protection and shelter for our Navy and other shipping.... After the long acquiescence of the Government through all the preceding Administrations, I am not disposed to question or disturb the authority to make appropriations for such purposes.
(Continues...)
Excerpted from The Constitution in Congress by David P. Currie. Copyright © 2005 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of Contents
PREFACEABBREVIATIONS AND SHORTENED TITLES
Part One: Death of a System
INTRODUCTION TO PART ONE
CHAPTER 1: INTERCOURSE
I. The Maysville Road
II. Rivers and Harbors
III. Ebb Tide
IV. The Undelivered Veto
V. Congress Insists (A Little)
VI. Tonnage Duties
VII. The Iron Horse
VIII. The Golden Gate
IX. The Telegraph
CHAPTER 2: THE PUBLIC LANDS
I. The 1833 Distribution Bill
II. The 1841 Distribution Law
III. The Mad
IV. The Learned
V. The Footloose
CHAPTER 3: THE BANK WAR
I. President Jackson's Veto
II. Removal of the Deposits
A. The Statute
B. The President's Powers
C. Censure and Protest
D. Expungement
E. Ruminations
III. State Banks and State Treasuries
IV. And Tyler Too
CHAPTER 4: CUSTOMS
I. The South Carolina Exposition
II. The Hayne-Webster Debate
III. The Nullification Ordinance
IV. President Jackson's Response
V. The Compromise of 1833
VI. Cadenza
Part Two: The Kitchen Sink
CHAPTER 5: ENUMERATED AND LIMITED POWERS
I. Admiralty and Commerce
II. The Broken Bench
III. The Smithsonian
IV. Retrocession
V. Prayers
VI. Spoils
CHAPTER 6: PRESIDENT, VICE-PRESIDENT
I. The Veto
A. The President's Pocket
B. Tippecanoe
C. Mr. Tyler and the Bank
D. Mr. Clay's Amendment
E. Mr. Tyler and the Tariff
F. Winding Down
II. The Appointing Power
III. The Sanctity of the Cabinet
IV. His Accidency
V. Casting Votes and Other Quiddities
CHAPTER 7: ALL ABOUT JUDGES
I. The Impeachment of Judge Peck
II. Another Who Got Away
III. The Wheeling Bridge
IV. The Court of Claims
V. Good Behavior
CHAPTER 8: MORE MISCREANTS
I. Sam Houston
II. Miss Otis Regrets
III. The Caning of Senator Sumner
IV. The Sins of Orsamus Matteson
V. Immunity
CHAPTER 9: JUDGING CONGRESSIONAL ELECTIONS
I. Threshold Questions
II. Vacancies
A. Mississippi
B. Kentucky
C. Vermont
III. The Three I's
A. Illinois
B. Eligibility Encore
C. Indiana and Iowa
CHAPTER 10: OTHER ELECTION ISSUES
I. Districts
A. Time, Place, and Manner
B. Co-Opting the States
C. Undoing the Deed
II. The Speaker
III. The Snowstorm of 1856
CONCLUSION
APPENDIX A. DRAMATIS PERSONAE
APPENDIX B. PRINCIPAL OFFICERS, 1829-1861
APPENDIX C. THE CONSTITUTION OF THE UNITED STATES
INDEX