Government of Laws

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:

  1. Congress shall have power to lay a tax or duty, not exceeding ten percent ad valorem, on article exported from any State.
  2. Congress shall have power to make roads in any State.
  3. Congress shall have power to make canals in any State, with the consent of the State within which the same shall be made.
  4. 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.

13 comments… add one
  • Anderson Link

    I don’t follow from the post whether the Congress passed these but they weren’t ratified by 3/4 of the states, or whether they never made it through the Congress.

    Either way, isn’t it possible that they were rejected because enough people thought they were unnecessary, since the Congress could already do those things?

  • I think it’s clear from the discussion as reported in the Annals that the representatives thought that Congress would not have the powers without the amendments.

    The amendments failed to pass the Congress because the members didn’t want the federal government to have those powers.

    Note, however, that this post is one about procedure. They clearly thought the process by which the Congress received the powers was important.

  • PD Shaw Link

    I’m not sure I would read as much into it. The Federalists (i.e., the Hamiltonians) would have always considered banks and raising revenue to pay war debts to be assumed powers of the federal government. The Federalists were in serious decline by 1816 in favor of the Democrats (Jeffersonians) who favored more limited government (but did not always practice what they preached). But at that time (1816-24) Democrats like Henry Clay successfully advocated a new federal bank, doubling tariffs and a new road btw/ Maryland and Illinois without a Constitutional amendment.

    I would agree that antebellum legislators and presidents often independently scrutinized their own Constitutional limitations in a way that definitely seems lost today. But historians have also argued that the antebellum tendency to Constitutionalize arguments helped lead to the Civil War. No compromise is available if your position is the only Constitutional one.

  • Ron W Link

    ” To establish Post Offices and post Roads;”

    Looks to me like #2 above was already covered by the Consitution.

  • I thought of that, too, Ron W, but, judging by the discussion, the power of the Congress to do that was hotly debated. I wonder if the source of the controversy isn’t a doubt over whether Congress had the power to do that without the consent of the state in which the road was to be built.

    One way or another the congressional representatives in 1814 didn’t seem to believe that Congress had that power without constitutional amendment.

  • Ima Nonymous Link

    You are correct in saying that in 1814 Congress did not believe they had the power to do these things. In the early days, *all* bills before Congress had to identify the specific provision in the Constitution that permitted the action. Anything else was submitted as a proposed Amendment.

    With a Federalist at the helm of SCOTUS, Congress realized that the courts would allow virtually anything as long as they invoked the “necessary and proper” or “general welfare” clauses, and this practice ceased. This was the result primarily of 4 disastrous and erroneous rulings (Marbury v. Madison [1803], McCulloch v. Maryland [1819], Cohens v. Virginia [1821], Gibbons v. Ogden [1824]) – all perpetrated by Chief Justice John Marshall who essentially brow-beat all the other Justices on the Court to accept his opinion.

    Thus, even though the Federalist party was in decline, Congress as a whole saw an expeditious way to get all manner of programs set up without the “bother” of letting the people know what they were doing.

    To Ron W above, “post roads” were very specific constructs in the 18th century that referred to what we call today “toll roads.” They were used to facilitate the movement of goods, and thus, were under Federal control because of the Commerce Clause. The “roads” contemplated in the proposed Amendment would have been public access roads built on State lands, which the Federal government could not do without an Amendment (eminent domain had not been a “discovered” power of Congress in 1814).

  • kreiz Link

    J. Scalia makes the same point in the context of the 19th Amendment, which permitted women’s suffrage. Scalia argues that in the early part of the 20th century, people acknowledged that the Constitution had to be amended to include this concept, as opposed to stretching existing constitutional language to divine such a right:

    “Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment.”

    Scalia’s commentary is found in a post by Simon at Stubborn Facts here:

  • PD Shaw Link

    Since Congress chartered a national bank in 1816 without a Constitutional amendment, these views must have been flexible.

    I agree with I.N. that “post roads” were a specific type of road, though I believe they were what they sound like: roads to be used for mail service, like the Albany Post Road.

  • PD Shaw Link

    Having now read the Annals of Congress, I think this is a particularly traumatic point in time for the democratic party. One of the cornerstones of the party was that the national bank was unconstitutional and when the charter came up for renewal in 1811, Congress rejected it, with most legislators claiming the bank unconstitutional.

    The War of 1812 was a disaster. And now people who had campaigned and argued their whole lives against Hamilton’s “American School” found a national bank, internal improvements and a high tariff to be necessary bulwarks to protect the country. This bill appears to be an attempt to bridge youthful idealism with adult necessity. I am not sure it would be fair to assume that all members of Congress (let alone President Madison) felt so conflicted.

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