The Madisonian. [volume] (Washington City [D.C.]) 1837-1845, 1839-02-02


subject For n the constitutional majority Of the
two houses should differ with the Executive depart
ment the opinion OF the latter, however Respectable
must Weld 10 such an expression OF hetT VIII. On
the other hand II from difference to an opinion pro-
mulgated In an executive communication, Congress
should refrain from entering upon the consideration
of question involving constitutional doctrine, il
might happen that the opinion of the President would
prevent the enaclion of law, even though there
should be the constitutional majority of twohrds Of
both houses in its favor. Thus by the introduction
Of such practice, the Presidential pet0 would ac-
aure force unknown 10 the constitution, and the
Legislative body would be shoTn of its powers from
want of confidence in its strength ortrom indispo-
sition TO exert 1t. Whilst your committee are per-
fecty aware that nothing like this is contemplated by
the Executive branch of the government, they pre-
sumo the House OF Representatives will scrupulously
avoid course, which may be construed into dere-
LECTION of their privileges. They deem it, therefore,
not improper to offer some considerations upon the
question of the constitutional powers of the general
government to pass laws for the improvement and
construction Of roads and canals with the consent Of
the states
As it is obvious however, that these several sub
ecs OF legislation do not rest upon the founda-
tons and that one Of these may be within the sphere
of the constitutional powers Of Congress- whilst the
others may belong exclusively the states IL is pro-
posed to treat them separately and the subject Of the
improvement and construction of public roads which
appears to your committee most clearly to be reduci
Bile to the powers vested In the general government
An accurate attention to the real points OF differ
on this subject will greatly contribute TO freethe
controversy from unmportant and irrelevant consi-
derations. To attain this we have only 10 compare
what Is maniiestly admitted on the. hand, with
what is claimed and conlended1r'on the other
The laws Of antecedent Congresses, approved by
successive Executive magistrates and the Of the
Executive magistrates themselves, will be resorted TO-
as affordng evidence of what may be regarded as
conceded to be within the powers OF the general GO
vernment The commendabe jealousy which they
have manifested OF all achmens state power,
and their scrupulous adherence TO the most rigid
principles OF construction, in the Interpretation ofthe
constitution, affords sure guarantee that more has
not been admitted than may be fairly assumed to be
within the provisions of that instrument. Taking,
then, the acts of both OF the Legislative and Execu
tive branches OF the government for our guide, we
shall find il clearly admitted that there cases
at least in which the general government possesses
the constitutional privilege Of constructing and i'm
proving roads through the several States
Thus, by the act Of the 10Th of March, 1906, con-
frmed, amended and enlarged by subsequent acts,
road was directed to be laid ou and consructedfrom
Cumberland in the state OF Maryland TO the state of
Ohio, upon obtaining the consent ofhe states through
which it should pass The fund provided for this
noble undertaking, was TO consist OF the proceeds OF
the sales of certain lands, the property of the United
States, in the state OF Ohio that this act furnishes
the double admission, that roads may be laid out
by Congress through the several states, with their
consent" and that the expenses of constructing such
funds of the United States The act was approved
by the President in Office, in 1906, and other acts
confirming amending, and enlarging it, were passed
by subsequent legislatures in the years 1910, 1911,
and 1915, and approved by the President in Office,
at those periods nay, more, the three last acts con-
tanned appropriations TO the amount of 10000 dol
lars, payable out of any moneys in the Treasury but
reimbursable out of the Ohio fund--a fund which
might or might not prove adequate, and which, in
point OF fact is believed hitherto to have been insult
fcient.
Similar to this act in some Of its provisions and
analogous in principle, are the acts of April 2lst,
1906 and ofihe Sd Of March, 1917, authorizing roads
to be opened from Nashville and Reynoldsburg, in
sissppi territory But these acts go still further than
the former in emitting 10 require the pYeri0us consent
OF ne state OF Tennessee, through whose territories
part Of the roads to pass and in directing the
expenses OF making them to be betrayed out Of the
public treasury Of the United States without provid-
Ing for It's reimbursement any manner whatsoever.
But lest the influence 10 be derived from these adj
missions should be deemed TO be weakened by the
consideration thar the collision Of opinion the
constitutional question has arisen since the passage
Of those laws your committee will beg leave TO refer
70 the date othe last act above mentioned and to
certain transactions of date subsequent to the i'm
portant and well remembered difference of opinion
between the Executive and Legislature, at the last
session of Congress. Since that period, they have
satisfactory Information that road has been direct
ed blythe Executive ofthe United States to be impro-
doubtless for military purposes. This road is laid
out from Plattsburg, its vicinity in the state of N
York, to Sackett's Harbor, in the same state.
It presumed, that il is to be constructed at the
expense of the general government, and it is under
stood that the previous assent of state has
procured
From this act therefore, of the Executive branch
Of the government emanating from that source at
late date it would seem fair 10 inter- that the consi-
tuition is admitted to have conferred upon the gene
lonfn
and TO defray the expense Of their construction out Of
the funds of the United States. And as the power
is not denied IN dH cases your committee will at
tempt 10 show that Congress has The power,
l. To lay out, construct, and improve post roads
through the several states with the assent Of the res
pective states And,
Q. To open, construct and improve military roads,
through the several States with the assent of the res
pective states.
8. To cut canals through the several states. with
their assent, for promoting and giving security in
ternal commerce, and for the more safe and econo-
mical transportation ofmiltary stores, &c. in time of
war; leaving, in all these cases, the jurisdctional
right over the soil in the respective states.
In examining the soundness Of these positions your
committee will not find il necessary to resort 10 what
is called liberal construction of the constitution
They might indeed, contend that the powers here
attributed TO the United States in derogation
Of state rights (since they only be exercised by
their assen there is less reason for adhering to ex
IRENE rigor OF construction. Where the authority
claimed by the general governments oppressive in
It's character or dangerous in its tendencies where
i asserted without Difference to state assent and in
derogation OF state power where it is calculated to
aggrandize the union, and to depress its members,
there may be so ne reason for holding the represen
tatives Of the nation to the letter of their authority
But where the powers ought be exercised is bene-
cent in It's effects, and only felt in the blessing it con-
fers where Il is not proposed act except with the
assent OF the party which is TO be affected where the
measure is more calculated TO increase the opulence
and the power of the state, than to aggrandze the
union at its expense II might fairly be commended that
less rigorous construction of the constitution would
be justifable. II Is neither unprecedented or mpro-
per to consrue the same instrument lihf rally where
the interests of the contracting parties xbe thereby
promoted, and TO adhere to greater sftfness where
injury may arise to either by an Interpretation toe
latiudinous That the powers In question are neither
dangerous in their tendencies or calculated to prove
injurious to the states, would seem fairly inferabe