Tuesday, January 06, 2009

Did Alexander Hamilton Concede that Canals "were beyond the sphere of Federal legislation"?

In his wonderful The Last of the Fathers: James Madison & the Republican Legacy, Drew R. McCoy discusses James Madison's continuing conviction that the Constitution did not authorize the federal government to construct internal improvements, as they were then known. I was particularly intrigued by the following sentence:
[In a January 6, 1831 letter to Reynolds Chapman,] Madison recalled that even [Alexander] Hamilton, in his 1790 report on the Bank, had conceded that canals "were beyond the sphere of Federal legislation."

I had not heard before that Hamilton – supposedly the epitome of broad constitutional construction – had made such a concession. It struck me that, if he had, it was a powerful piece of evidence concerning the original understanding of the meaning of the document.

When I looked at Hamilton’s December 1790 report on the Bank, however, I could find no such discussion of canals. But then I wondered whether Madison had misremembered the source.

You probably know that President Washington invited members of his cabinet to submit to him memoranda explaining why they maintained that the proposed Bank legislation was or was not constitutional. Secretary of State Thomas Jefferson and Attorney General Edmund Randolph submitted memoranda arguing the negative. Hamilton then submitted a memorandum in support of constitutionality, which ultimately convinced the president to sign the legislation. Might Madison, I wondered, have been thinking of Hamilton’s 1791 memo?

Well, it turns out that Madison almost certainly was referring to that memo, because it does indeed contain a discussion that touches on the constitutionality of canals (emphasis added):

Another argument made use of by the Secretary of State [Jefferson] is, the rejection of a proposition by the Convention to empower Congress to make corporations, either generally, or for some special purpose.

What was the precise nature or extent of this proposition, or what the reasons for refusing it, is not ascertained by any authentic document, or even by accurate recollection. As far as any such document exists, it specifies only canals. If this was the amount of it, it would, at most, only prove that it was thought inexpedient to give a power to incorporate for the purpose of opening canals, for which purpose a special power would have been necessary, except with regard to the western territory, there being nothing in any part of the Constitution respecting the regulation of canals. It must be confessed, however, that very different accounts are given of the import of the proposition, and of the motives for rejecting it. Some affirm, that it was confined to the opening of canals and obstructions in rivers, others, that it embraced banks; and others, that it extended to the power of incorporating generally. Some, again, allege, that it was disagreed to because it was thought improper to vest in Congress a power of erecting corporations. Others, because it was thought unnecessary to specify the power, and inexpedient to furnish an additional topic of objection to the Constitution. In this state of the matter, no inference whatever can be drawn from it.

But whatever may have been the nature of the proposition, or the reasons for rejecting it, nothing is included by it, that is the proposition, in respect to the real merits of the question. The Secretary of State will not deny, that, whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. Nothing is more common than for laws to express and elect more or less than was intended. If, then, a power to erect a corporation in any case be deducible, by fair inference, from the whole or any part of the numerous provisions of the Constitution of the United States arguments drawn from extrinsic circumstances regarding the in tension of the Convention must be rejected.

I’m not at all sure what to make of Hamilton’s statement. Madison had clearly latched on to the phrase, “there being nothing in any part of the Constitution respecting the regulation of canals,” as an unambiguous concession, and he has a point. On the other hand, in the context of the Hamilton’s overall argument, the canal point is subsidiary to the point of being a throw-away.

About the illustration, which dates to 1812:
A patriotic broadside illustrated with emblems of the United States composed chiefly of typographic elements. A large central framework incorporates a small "Temple of Freedom" surmounted by a small Liberty figure, and containing the words "The Federal Constitution." On each side are oval bust portraits of Presidents (left to right) Washington, Adams, Jefferson, and Madison. Above them are small vignettes representing (on the left) Agriculture and Domestic Manufactures, the "immoveable pillars of the Independence of our country," and (on the right) Commerce, "a strong support to our national edifice." In the upper section of the framework are the seal of the United States and a listing of the names of the seventeen states with their 1810 census figures. Various quotations and brief texts are included, the longest of which are an account of George Washington's resignation of his commission, a description of the geography, government, and people of the United States, and the song "Columbia" written by "Dr. Dwight, President of Yale College."

Boola Boola!

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