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There has been a lot of questions asked about the latest infrastructure bill in Congress. Can we afford it? Where will the money be spent? The one question I have not heard asked? Is it constitutional?
Spending bills are nothing new. Neither are infrastructure bills. The questions that faced America early in her existence should be the same questions we ask today. What are the limitations on the federal government?
To the House of Representatives of the United States: Having considered the bill this day presented to me entitled, “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of watercourses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense,” I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
On March 3rd, 1817, President James Madison vetoed a spending bill that Congress had sent him. As per Article I, Section 7, Clause 2 of the Constitution requires, he returned the bill to the house that originated it with his objections.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States; If he approves, he shall sign it, but if not, he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.
While the reason President Madison vetoed the legislation is simple, it’s also quite important. Not only does it show the proper role of a Presidential veto, but it’s also an example to all of those who would ever hold that office of the checks and balances created by the U.S. Constitution.
President Madison makes the point in the very first paragraph of his veto message that he cannot reconcile the Internal Improvements Bill with the powers delegated in the Constitution of the United States. The remainder of the letter is his explanation of the difficulties he sees.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the Constitution’s first article. It does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
When the Affordable Care Act was being debated in the House of Representatives, a reporter asked then-Speaker of the House Nancy Pelosi where the Constitution gave Congress the authority to pass an individual health insurance mandate. Her response? “Are you serious? Are you serious?” While those in politics and the media today are not serious about Constitutional limitations, the American people should be.
President Madison recognized that spending money on infrastructure was not among the enumerated powers delegated to Congress in Article I, Section 8 of the Constitution. And since the infrastructure was not among the Constitution’s powers vested in the United States, Congress did not have the power to make laws necessary and proper for executing that power.
President Madison goes on:
“The power to regulate commerce among the several States” can not include a power to construct roads and canals, and to improve the navigation of watercourses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
The only way to consider building infrastructure part of the power to regulate interstate commerce is to ignore the Constitution’s language. This also explains why some have gone so far as to include childcare, pre-school education, and even paid leave as infrastructure. Allowing those in offices created by the Constitution to reinterpret it in any fashion they want is not liberty, and it’s not even tyranny. It is despotism.
Absolute power; authority unlimited and uncontrolled by men, constitution, or laws.
One of the justifications Congress provided for the 1817 “Infrastructure” bill was to make it easier and less expensive to provide for the common defense. Wouldn’t that justify an infrastructure bill?
To refer the power in question to the clause “to provide for the common defense and general welfare” would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers that follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms “common defense and general welfare” embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it is expressly declared “that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, in as much as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
If the Constitution’s common defense and general welfare clause allowed Congress to make any law they thought would fit those purposes, then the entire structure of the union would be turned upside down. No longer would the states be sovereign over their internal matters since Congress could nullify any state law with a federal one. Furthermore, the people would no longer have control over their state governments since the Constitutions that formed them would be subject to the whim and will of Congress. No longer would the federal government be exercising just powers by the consent of the governed. Rather they would become the despotic tyrants we see today.
However, what if the states approve of Congress spending money this way?
If a general power to construct roads and canals, and to improve the navigation of watercourses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
Since state governments are just as bound to the Constitution of the United States as the federal government is, they cannot authorize it to do something outside of the powers delegated to it in the Constitution. Just because the states have abdicated their responsibility to act as a check on the abuses of the federal government, it does not make them right or legal.
So what are we to do? How could important essential infrastructure work be completed if the federal government cannot do it? Aren’t these projects too important to ignore because of a little issue of constitutionality?
I am not unaware of the great importance of roads and canals and the improved navigation of watercourses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that the Constitution does not expressly give such a power, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; also believing that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
Part of the failure in government today comes from the tearing down of the partition between the state and federal governments. If these projects are so important, and if they are authorized by the states’ Constitutions and of the United States, then the states can fund them. Why should New Yorkers pay for improvements in Florida or Tennesseans pay for fixing roads in California that have been neglected? If these projects are so beneficial, let those who would directly benefit from them pay for them.
Why do the American people act like only Washington, D.C., can get these projects done? For the same reason, Willie Horton said he robbed banks: “That’s where the money is.” For the last century, the American people have allowed their state governments to become dependent on federal money. With the authorization of the federal income tax and the removal of state representation in the U.S. Senate, the states have made themselves subjects of Washington, D.C. Not only have the states succumbed to bribes coming out of our nation’s capital, but the people have as well. Why else are so many clamoring for federal programs that the Constitution does not authorize? While there is plenty of blame for those who work in our statehouses, the real blame is with the people who hired them.
The spending spree that has marked the beginning of the Biden administration is not a compassionate act; it’s bribery. The American people are selling their birthright to freedom and liberty for a few coins borrowed in our own name.
As Alexis DeTocqueville said:
“The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.”
It appears not only has Congress discovered that they can bribe the public with their own money, but that the public likes it that way.
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