1822 James Monroe - The Constitution and Federal Highways

Since 1806, we have been debating whether or not Congress has the constitutional power to fund the building or maintenance of federal highways.  Few argue whether or not they should, but many argue that they do not have the power enumerated in the Constitution.  Technically, they are correct, but in 1822 President Monroe's words and actions allowed Congress to assume implied powers to not only appropriate funds to build federal highways, but to maintain them as well.    According to Monroe, "from the exercise of this power no danger is to be apprehended".  At least Monroe stopped short of allowing eminent domain.

Monroe's Vetoes Bill to Maintain Cumberland Road

On President Madison's last day in office he vetoed the Bonus Bill of 1817 that was to provide funding for internal improvements of roads and Canals.   This put projects like the "National Road" (Cumberland Rad) in jeopardy, but on March 14, 1818 during the second year of James Monroe's first term, Congress passed legislation that granted Congress the right appropriate money for the construction of roads and Canals.   Initially, President Monroe objected to this as an unconstitutional expansion of power, but 4 years later he seemed to have moderated a bit.  Well, just a bit.  in 1822, the Cumberland Road which had reached Virginia was eroding under heavy travel westward, and Congress responded by passing a bill to erect toll gates on the road.  The bill was entitled, "An act for the preservation and repair of the Cumberland road".  The next day, Monroe vetoed the bill, declaring that the power to "establish turnpikes with gates and tolls" implied the unconstitutional power to exercise "a complete system of internal improvement".  Let me try to explain what he meant by that.

Monroe argued, that while Congress did have the power (or perhaps took the power) to fund internal improvements for projects which had the consent of the states, they did not have the power to establish jurisdiction and sovereignty over such internal improvements.  To build toll gates and enforce the collection of tolls would be to use the power of eminent domain to take full jurisdiction of the road.  In 1818, when Congress authorized funding for the internal improvement of the Cumberland road, they mad no provision for eminent domain. The original construction of the road was done only with the consent of the State, but the land and the road remained under jurisdiction of the state.   Simply put, Monroe argued that while Congress had the power to fund the building of roads in territories and states which had given their consent, they did not have the power to take over those roads.  And to further complicate matters, since the roads encompassed multiple states, no one state could grant this power.  It could only be done through a constitutional amendment. 

Monroe opens the Door for Congress

When President Monroe vetoed the bill to preserve and repair the Cumberland road, he stated that is was done with "deep regret". Seven months after Monroe vetoed the bill, he again felt the need to explain his actions. In his 1822 State of the Union delivered on December 3, he did just that.  First Monroe, shared that he understood both the importance of the Cumberland road and it's condition.  Monroe described the road as having 'incalculable advantage in facilitating the intercourse between the Western and the Atlantic States".   The Cumberland road provided easy access to Washington D.C. and the Atlantic Ocean from the far Northern tip of Lake Erie as well as from many points along the Mississippi River.   It was indispensable for military, commercial and postal operations.  Monroe described it as "an ornament and an honor to the nation".

"It is understood that the Cumberland road, which was constructed at great expense, has already suffered from the want of that regular superintendence and of those repairs which are indispensable to the preservation of such a work. This road is of incalculable advantage in facilitating the intercourse between the Western and the Atlantic States. Through the whole country from the northern extremity of Lake Erie to the Mississippi, and from all the waters which empty into each, finds and easy and direct communication to the seat of Government, and thence to the Atlantic. The facility which it affords to all military and commercial operations, and also to those of the Post Office Dep't, can not be estimated too highly. This great work is likewise an ornament and an honor to the nation."

Furthermore, he believed that for Congress should have full jurisdiction over internal improvements.  At least those like the Cumberland road which had "great national purpose" and were "eminent advantage to our Union".   But, it was not  enumerated in the Constitution, so a constitutional amendment was needed.   For this reason, Monroe explained he was compelled to veto the bill.   Now, several months later he was still recommending such amendment.   But reading between the lines of Monroe's address, it seems that Congress was not heeding his advice, and Monroe was now moderating his original stance on the funding of internal improvements.  Where as in 1818, Monroe objected to granting Congressional funding of internal improvements, in 1822 he now suggested that in his own judgement, that Congress had "the right to keep the road in repair by providing for the superintendence of it and appropriating the money necessary for repairs."  Monroe reasoned, that if Congress had the right to "appropriate money to make the road", then they surely had the right to appropriate money "preserve the road from ruin".   And if that wasn't clear enough.   Monroe continued, "From the exercise of this power no danger is to be apprehended."  

"Believing that a competent power to adopt and execute a system of internal improvement has not been granted to Congress, but that such a power, confined to great national purposes and with proper limitations, would be productive of eminent advantage to our Union, I have thought it advisable that an amendment of the Constitution to that effect should be recommended to the several States.

A bill which assumed the right to adopt and execute such a system having been presented for my signature at the last session, I was compelled, from the view which I had taken of the powers of the General Government, to negative it, on which occasion I thought it proper to communicate the sentiments which I had formed, on mature consideration, on the whole subject. To that communication, in all the views in which the great interest to which it relates may be supposed to merit your attention, I have now to refer. Should Congress, however, deem it improper to recommend such an amendment, they have, according to my judgment, the right to keep the road in repair by providing for the superintendence of it and appropriating the money necessary for repairs. Surely if they had the right to appropriate money to make the road they have a right to appropriate it to preserve the road from ruin. From the exercise of this power no danger is to be apprehended."

Thus it was, in 1822 that James Monroe agreed that Congress not only had the right to appropriate funds for internal projects, but to appropriate funds to maintain them as well.  Yet, he stopped short of recognizing that Congress had the right to eminent domain over the projects.   While many believe today, that eminent domain is a right of every sovereign nation without requiring explicit constitutional delegation, it was not recognized until 1876 in Kohl v. United States.  In 1822, few if any recognized that the federal government had this power, which is why while Monroe had changed his mind on funding the repairs of Cumberland Road, he did not support granting Congress full jurisdiction over the road without constitutional amendment.

Monroe closed the subject with a few words of "faithful discharge" of duties within "constitutional limits".  Monroe was speaking of the difference between appropriation and jurisdiction.  But since he already spoke at length about it in his veto message, he did not think it necessary to repeat his words.

"Under our happy system the people are the sole and exclusive fountain of power. Each Government originates from them, and to them alone, each to its proper constituents, are they respectively and solely responsible for the faithful discharge of their duties within their constitutional limits; and that the people will confine their public agents of every station to the strict line of their constitutional duties there is no cause of doubt.

Having, however, communicated my sentiments to Congress at the last session fully in the document to which I have referred, respecting the right of appropriation as distinct from the right of jurisdiction and sovereignty over the territory in question, I deem it improper to enlarge on the subject here."

 In 1823, Monroe returned to this subject, asking Congress to consider whether it would be appropriate for the Executive branch to enter into an arrangement with the states to establish tolls.

"As the Cumberland road will require annual repairs, and Congress have not thought it expedient to recommend to the States an amendment to the Constitution for the purpose of vesting in the United States a power to adopt and execute a system of internal improvement, it is also submitted to your consideration whether it may not be expedient to authorize the Executive to enter into an arrangement with the several States through which the road passes to establish tolls, each within its limits, for the purpose of defraying the expense of future repairs and of providing also by suitable penalties for its protection against future injuries."

http://www.presidency.ucsb.edu/ws/index.php?pid=29464
http://www.presidency.ucsb.edu/ws/index.php?pid=29465

A political and constitutional study of the Cumberland road, Jeremiah Simeon Young, 1904, pg. 56

The Rise and Fall of the American System: Nationalism and the Development of the American Economy, 1790-1837, Songho Ha, 2015, pg. 68

Bulletin - United States, Office of Public Roads, Issues 12-20, U.S. Government Printing Office, 1895 pg. 10

http://www.stateoftheunionhistory.com/2015/07/1817-james-monroe-national-road.html
http://constitution.findlaw.com/amendment5/annotation14.html