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Is Federal Infrastructure Spending Unconstitutional?

Is Federal Infrastructure Spending Unconstitutional?

The Tenth Amendment Center—in my opinion, one of the country’s most valuable constitutional websites—has produced a thoughtful video on the constitutionality of federal infrastructure spending. Based mostly on President James Madison’s 1817 veto, on constitutional grounds, of a bill to construct roads and canals, the video concludes that federal infrastructure spending violates the Constitution as that document was originally understood.

Is the Tenth Amendment Center video correct?

Answer: In part.

First, though, let’s address a natural question: If James Madison—the “father of the Constitution”—said federal infrastructure spending violates the Constitution, how can one argue with him? [Of course, Madison did not use the modern term “infrastructure.” He spoke in terms of roads and canals.]

The answer begins with how originalists reconstruct the Constitution’s original legal force. If we follow the Founders’ own methodology, we look first to the understanding of the ratifiers. If that understanding is not clear, we examine how the document would have been understood by informed members of the general public at the time of ratification—that is, between September 17, 1787 and May 29, 1790. The first inquiry is into original understanding, the second into original meaning. (For a summary of these terms and of the related phrase original intent, click here; a detailed explanation of their use in Founding-Era interpretation is here.)

As one of the leading ratifiers, Madison’s Founding-Era statements are good evidence of original understanding. However, they are not absolutely decisive, because there were 1647 other ratifiers and many other involved citizens. Some understood some parts of the Constitution differently.

Moreover—and this is important—a 1817 presidential veto message is not a ratification-era statement, and it was not made in Madison’s capacity as a ratifier or as a proponent of ratification. It was expressed as president fully 30 years later. That’s a big gap—both in roles and in time. As roles alter and time passes, incentives change and memories fade. Indeed, several Founders are known to have altered their constitutional views in the years after ratification. An extreme example is Alexander Hamilton, whose opinions even as early as 1791 sometimes are hard to reconcile with his public representations just two or three years before.  To be sure, Madison remained much more faithful to the Constitution’s meaning than Hamilton did, but even Madison was not infallible.

So what was the understanding in 1787-90? I have pieced this together over many years. In a nutshell, here it is:

* The Constitution gave Congress power to “To . . . support Armies” and to “provide and maintain a Navy.” Support, provision for, and maintenance of armies and navies authorized spending on military infrastructure. During the Founding Era, building installations such as forts, military roads and bridges, and naval dockyards was an understood component of maintaining the armed forces. In his veto message, Madison did not address military infrastructure.

* The Constitution also granted Congress power “to establish . . . post Roads.” I researched this provision in depth for my article on the Postal Clause. A post road was an intercity highway punctuated with “posts” or “stages” with stables, inns for eating and sleeping, even newspaper offices. Today we call a post road an “interstate highway.” To establish a road meant to do everything necessary for the construction and maintenance of that road—laying out, grading, installing bridges, finishing, and so forth. (Jefferson was incorrect when he suggested in 1796 that to “establish” a post road meant only to designate it from existing roads.)  Madison did not address the Congress’s post road power in his 1817 veto message.

* The power to “regulate Commerce” included broad authority over navigation. This, in turn encompassed construction of ports, lighthouses, and other naval facilities—even hospitals for sailors.  So Madison was incorrect to write in his veto message that “‘The power to regulate commerce among the several States’ can not include a power . . . to improve the navigation of water courses.” In fact, his veto message’s narrow construction of the federal government’s power over navigation seems to contradict a statement Madison himself made in 1789, when the Constitution’s ratification was still ongoing. Moreover, in today’s world, navigation includes air travel, suggesting the federal government may construct and maintain airports.

* As for ground transportation: Congress’s power to “regulate Commerce . . . among the several States” encompassed authority to regulate interstate ground transportation, but not to construct or own roads or other ground transportation facilities. That’s why the framers listed the post road power separately from, and in addition to, the commerce power. They wanted Congress to be able to construct post roads, but not other kinds of roads.

* The records from the constitutional debates tell us explicitly that constructing local streets and other non-post roads was outside federal authority.

* Canals are in an ambiguous position: They are hybrids between navigation (for which the Constitution permits federal construction projects) and ground transportation (for which the Constitution usually does not permit federal construction). Fortunately, we have some direct Founding Era evidence on canals: During the Constitutional Convention a federal power to cut canals was proposed, but rejected.

The bill President Madison vetoed included spending for canals, and that fact alone justified his veto. But we should not deduce from this veto that ALL federal infrastructure spending is unconstitutional.

To summarize: Under the Founders’ Constitution, the federal government may build and own military infrastructure, interstate highways, and facilities for navigation and air travel. Spending on other roads and on canals is reserved exclusively for states and local governments pursuant to the Ninth and Tenth Amendments.

Rob Natelson