For the last four or five weeks I’ve been doing research for a post on the re-building of Washington, DC after its capture and the burning of the Capitol and other government buildings by the British in 1814. In reading the Annals of Congress, the ancestor of the Congressional Record, something leapt out at me.
One of the first sets of measures considered by the House of Representatives, bare days after the capture of the city, virtually while the embers were still smoking (they probably would have been had the city not been struck by what must have been a hurricane immediately following the burning), was a number of amendments to the constitution:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two-thirds of both Houses concurring, That the following articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States; each of which, when ratified by three-fourths of the said Legislatures, shall be valid, to all intents and purposes, as part of the said Constitution:
- Congress shall have power to lay a tax or duty, not exceeding ten percent ad valorem, on article exported from any State.
- Congress shall have power to make roads in any State.
- Congress shall have power to make canals in any State, with the consent of the State within which the same shall be made.
- Congress shall have power to establish a National Bank, with branches thereof, in any State.
The impetus for these amendments is obvious: the federal government was broke and still waging war with Britain, the lack of roads and canals impeded both commerce and the movement of troops, and the lack of a national bank caused the states to be dependent on states like New York in which the financial institutions were mostly located (the amendments were proposed by a congressman from Virginia).
That’s not what struck me. What struck me is that several of these amendments e.g. constructing roads, is taken for granted nowadays. Yet, the members of the House of Representatives in 1814 had enough respect for law that it was obvious to them that empowering Congress to undertake such things required Constitutional amendments.
Today, with our judge- and lawyer-made law (the common law), we don’t have that sort of notion of the limitations of the federal government nor repugnance at the principle of a government of unlimited powers or, indeed, a government of men rather than of laws. It was obvious to these men, well within living memory of the writing of the Constitution that the Congress did not already have these powers, but in a little more than a hundred years an outlaw Supreme Court would decide that Congress had had these powers all along.