The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
 |
|
TO MARTIN VAN BUREN. |
|
|
|
|
|
 | The writings of James Madison, |  |
TO MARTIN VAN BUREN.
Dear Sir, Your letter of Aug. 30. has been longer
has been unavoidable.[85] And I am sensible now
that the subject invited more of development, than
successive occurrences calling off my attention have
permitted. The brief view taken of it, will at least
be a proof of my disposition to comply with your
request, which I regard as a private one, as you will
be pleased to regard the answer to it.
I should certainly feel both gratification and
obligation in giving any aid in my power towards
making the Constitution more appropriate to its
objects, & more satisfactory to the nation. But I
feel also the arduousness of such a task, arising
as well from the difficulty of partitioning and defining
Legislative powers, as from the existing
diversity of opinions concerning the proper arrangement
of the power in question over internal improvements.
Give the power to the General Government as
possessing the means most adequate, and the objections
are, 1. the danger of abuses in the application
of the means to objects so distant from the
eye of a Government, itself so distant from the eye
of the people, 2. the danger, from an increase of the
patronage and pecuniary transactions of the General
Government, that the equilibrium between that
and the State Governments may not be preserved.
the objections are: 1. that being deprived by the
Constitution, and even by their local relations (as
was generally experienced before the present Constitution
was established) of the most convenient
source of revenue, the impost on commerce, improvements
might not be made even in cases wholly
within their own limits. 2. that in cases where roads,
& canals ought to pass through contiguous States,
the necessary co-operation might fail from a difficulty
in adjusting conditions and details, from a
want of interest in one of them, or possibly from
some jealousy or rivalship in one towards the other.
3. that where roads and canals ought to pass thro'
a number of States, particular views of a single State
might prevent improvements deeply interesting to
the whole nation.
This embarrassing alternative has suggested the
expedient which you seem to have contemplated,
of dividing the power between the General & State
Governmts., by allotting the appropriating branch
to the former, & reserving the jurisdiction to the
latter. The expedient has doubtless a captivating
aspect. But to say nothing of the difficult of
defining such a division, and maintaining it in practice
will the nation be at the expence of constructing
roads & canals, without such a jurisdiction over
them as will ensure their constant subservience to
national purposes? Will not the utility and popu
larity of these improvements lead to a constructive
assumption of the jurisdiction by Congress, with the
to the exercise of the appropriating power, already
stretching itself beyond the appropriating limit.
It seems indeed to be understood, that the policy &
advantage of roads & canals have taken such extensive
& permanent hold of the public will, that
the constructive authority of Congress to make them,
will not be relinquished, either by that, or the Constituent
Body. It becomes a serious question therefore,
whether the better course be not to obviate
the unconstitutional precedent, by an amendatory
article expressly granting the power. Should it be
found as is very possible, that no effective system
can be agreed on by Congress, the amendment will
be a recorded precedent against constructive enlargements
of power; and in the contrary event, the
exercise of the power will no longer be a precedent
in favour of them.
In all these cases, it need not be remarked I am
sure, that it is necessary to keep in mind, the distinction
between a usurpation of power by Congress
against the will, and an assumption of power with
the approbation, of their constituents. When the
former occurs, as in the enactment of the alien &
sedition laws, the appeal to their Constituents sets
everything to rights. In the latter case, the appeal
can only be made to argument and conciliation, with
an acquiescence, when not an extreme case, in an
unsuccessful result.
If the sole object be to obtain the aid of the federal
treasury for internal improvements by roads &
the States, an amendment need only say. "Congress
may make appropriations of moneys for roads and
canals, to be applied to such purposes by the Legislatures
of the States within their respective limits,
the jurisdiction of the States remaining unimpaired."
If it be thought best to make a constitutional grant
of the entire Power, either as proper in itself, or made
so by the moral certainty, that it will be constructively
assumed, with the sanction of the national
will, and operate as an injurious precedent, the
amendment cannot say less, than that "Congress
may make roads & canals, with such jurisdiction as
the cases may require."
But whilst the terms "common defence & general
welfare," remain in the Constitution unguarded agst.
the construction which has been contended for, a
fund of power, inexhaustible & wholly subversive
of the equilibrium between the General and the State
Govts. is within the reach of the former. Why then,
not precede all other amendments by one, expunging
the phrase which is not required for any harmless
meaning; or making it harmless by annexing to it the
terms, "in the cases required by this Constitution."
With this sketch of ideas, which I am aware may
not coincide altogether with yours, I tender renewed
assurances of my esteem & friendly wishes.[86]
Van Buren wrote from Albany that he intended to propose an
amendment to the constitution on the subject of internal improvements
in the next Congress, having already done so in the last two
sessions. He would be pleased if Madison would draft the amendment.
—Mad. MSS.
On October 15 Madison wrote to Van Buren acknowledging
the receipt of the report of the committee on roads and canals: "The
committee have transcended all preceding advocates of the doctrine
they espouse, in appealing to the old articles of Confederation for its
support. Whatever might have been the practice under those articles
it would be difficult to shew that it was always kept within the prescribed
limits. The Revolutionary Congress was the Offspring of the
great crisis, and the exercise of its powers prior to the final ratification
of the articles, governed by the law of necessity, or palpable expediency.
And after that event there seems to have been often more regard to the
former latitude of proceeding than to the text of the Instrument;
assumptions of power apparently useful, being considered little dangerous
in a Body so feeble, and so completely dependent on the authority
of the States. There is no evidence however that the old Congs.
ever assumed such a construction of the terms 'Com̃on defence &
general welfare' as is claimed for the new. Nor is it probable that
Gen: Washington in the sentiments quoted from or for him, had more
in view than the great importance of measures beyond the reach
of individual States, and, if to be executed at all, calling for the general
authority of the Union. Such modes of deducing power, may be
fairly answered by the question, what is the power that may not be
grasped with the aid of them? "—Mad. MSS.
| The writings of James Madison, | |