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A Constitutional History of the United States
Chapter XXVII - Conditions After 1815. The Rise of the New West. Internal Improvements
by McLaughlin, Andrew C.

After the war, the most noteworthy features of American life were the spirit of nationalism, the rapid building up of the new west, the extension and the expression of a buoyant and confident democracy. These three conditions or developments were interrelated and interdependent. In both Europe and America, the nineteenth century was marked by the growth of the spirit of nationalism, the integration of peoples, expansion, and the increase of popular power. Our story has to do with America, but it is well to notice, before entering upon the story with more detail, that American history follows, or leads, along the lines familiar to students of European affairs.

The sources of the sentiment of nationalism cannot, of course, be fully discovered. Before the war began, in spite of a good deal of petty sectional and state jealousy, men were not devoid of patriotism; the war itself was brought on largely by the younger men who were tired of bickering when national honor was at stake; and when the struggle was over there was a wider outlook. Even the New Englanders, sullen as many of them had been, took pride in the victories at sea, for there had been victories as well as disasters; and the smoke of the battle of New Orleans cast a mellow glow upon a war not otherwise the subject of much exultation.

The men of the generation after the war were devoted to the union; and to gather the significance of that one word — union — as it appealed to them, we need to bear in mind the distractions preceding the war and the humiliating and perilous distractions in the midst of the war itself. The former partisan bitterness, based on hatred for one or the other of the warring nations of Europe, had now ceased to be a matter of great consequence. Peace in Europe helped to still the old-fashioned partisan strife in America. Men were looking westward to the Pacific, not with foreboding across the Atlantic.

Sectionalism did not disappear entirely; a country of an extensive area embracing differing interests and differing modes of life was certain to be troubled by sectionalism; and indeed the wonder is, not that there were conflicting interests, but that the union was held together at all, to be tested at length by one supreme effort at secession nearly three-quarters of a century after the Constitution was framed. But for a time after the second war with Britain this sectionalism was not obtrusive; and, though a state occasionally broke out in resolutions and indulged in lamentation over banks or internal improvements or tariff, the lamentation was not inconsistent with a feeling of pride in the nation. Though a nationalistic interpretation of the Constitution is a natural consequence of national sentiment, we do not need to conclude that every defense of states' rights is an evidence of absence of affection for the nation. Those years then — the fifteen years or so after the war — were very significant as they expressed and built up this affection which in later decades was to withstand the disintegrating effects of slavery and the conflicting interests of free and slave labor.

When the Revolution ended, only a few hardy woodsmen had pushed beyond the mountains into the great valley. But the migration went steadily on. Kentucky entered the union in 1792, Tennessee in 1796, Ohio in 1803. In the face of protests from the northeastern Federalists, who saw the union shattered by the admission of a new partner, Louisiana entered in 1812. Immediately after the war, people began to pour over the mountains; regions that had been nothing but untracked wilderness, or wilderness tracked only by river-highways, were turned, in a lustrum or less, into farms and villages; the people were lustily engaged in the task which chiefly absorbed their energies, the task of occupying the continent. The union stretched away to the Mississippi and beyond; and in that region men were born and reared: new leaders of men, Lincoln and Jefferson Davis, and scores of others only less important were children of the west. The nation was no longer a string of republics along the Atlantic coast.

Of the effect of this new west much can be said. The spirit and character of the frontiersman — the spirit and character created by the job of peopling the wilderness — made themselves felt even within the field of constitutional history. The west was naturally nationalistic. Expansion and nationalism are boon companions. The men who crossed the mountains, devoted as they may have been to the state from which they came, no longer had an undivided affection for the place of their birth; they were making new states and developing a new affection; the older provincialism was lost. In some regions, as in the old northwest, they settled on national land; they were protected at times by national troops; their officials in early days were national officials; and as wards of the nation their settlements grew into territories and finally into states. Provincialism requires time and quiet for development; the west had no time and did not know repose. Men who are engaged in the extension of empire are not naturally puny-minded. The river system and the essential unity of the great valley made interdependence of sections an obvious and dominating fact; geography itself taught the evident lesson of union. In the hastily-made states of the west, state sovereignty, as a doctrine, based on a sense of the individual character of the state, had infertile soil for growth. This is not saying there was no sectionalism, born of particular interests and prejudices. The westerner has never been modest about laying down his demands and setting up his economic needs. But his demands and his laments have as a rule not dimmed the luster of his affection for his country.

The rise of the west brings before us with renewed force the fact that our constitutional system had to adapt itself to a developing, not to a stagnant, country, or to one growing within a narrowly-limited area. Formed for thirteen seaboard states, the Constitution had to be fitted to the needs of a continent. There were within the same nation not only the free-labor states and slave-labor states, but also regions old and new, sections well along in commercial and industrial life and sections undeveloped, still living in a primitive though rapidly-changing industrial condition. The contrast between north and south, between two industrial systems, was perilous, and the contrast ended in conflict and war; but quite as important, perhaps, were the continuous adjustments necessitated by national expansion and by the varying views of east and west. In any broad view of constitutional history, such fundamental and elementary facts must always be kept in mind.

But what of the southern section of the Mississippi basin? Into some portions of that region masters went with their slaves; big, flourishing plantations were scattered along the rich bottom-lands and reproduced the social and industrial life of the old south. There too, in the earlier days, the people were influenced by western conditions, and some portions of the far southern states long remained western in their sympathies and habits. A flourishing region, raising before long great quantities of cotton, did not for many years feel any strong temptation to acquire sectional forebodings. And yet, in the Mississippi valley, as along the coast, there were two differing systems of industry, slave labor and free labor; the slave-owning region gave new life to slavery. In the west itself there was the basis for serious divergence that might ripen into hostility.

As the Europeans in crossing the Atlantic to America dropped from their shoulders some of the habits of mind and the social customs of the old world, so the eager immigrants into the Mississippi basin cast aside, as they passed the mountains, something of the thinking and most of the social barriers and burdens which they had known in the east. They did not start all over again entirely free from traditions, but, unhampered by social cleavage and marked differences of economic conditions, they could rear their political communities without fear of molesting any vested prestige of social and political superiors.

The old scruples about constitutional authority were, in the years after the war, partly discarded by the men who had especially nourished them. The old fear of monarchy was of course forgotten. The Republicans, it was said, had "out-federalized" the Federalists. Madison and Monroe, though occasionally struggling with old misgivings, were generous in their interpretation of national power — as generosity went a hundred years and more ago. Madison recommended protection for manufactures, the building of roads and canals, the establishment of a national university, an army, and a well-provided navy. He vetoed a bank bill (1815), but signed the bill creating a new Bank in 1816. Monroe, in his turn, was not beset with fears and forebodings, though he was less venturesome than John Quincy Adams, who, when he took the presidency, had no hesitation in presenting large schemes of national activity. Some men, it is true, still wrestled anxiously with constitutional scruples; when their economic interests were unfavorably affected, they did not fail to criticize and complain; but all this was not destructive or fatal. The main fact is clear beyond all cavil: if the nation was to move on and prosper as a vital whole, it must be held together, not by laws and congresses and courts alone, nor by principles of constitutional interpretation, but by the spirit of union, by sentiment.

With this temporary disappearance or subsidence of strict construction, a tendency which indeed began its course soon after Jefferson took the presidential chair, it might seem that Jeffersonism was wholly discredited. But Jefferson himself never gave up in theory his belief in the value of local self-government. Believing that the nation was safe if the people in the states were possessed of power to manage unmolested the great body of their own affairs, he clung to states' rights, dreaded consolidation, and disapproved of the tendency of the judiciary to establish national authority by constitutional construction. But fate and the way of the world were against localism. The heart of Jeffersonian principles, however, was not dying, but triumphant; the essentials of democratic government were daily more actively alive. Telling a buoyant westerner that the government must be in the hands of the wise, the good, and the rich would have been an extravagant indulgence in humor. As Taine has said of the men who made France a thousand years ago, these sturdy westerners had no need of ancestors, for they were ancestors themselves.

Even within the limited field of constitutional history the development of the new democracy, sure of itself, confident of its power, has its conspicuous place. America, someone has said, was bred in a cabin — a suitable place for the birth and upbringing of a democratic people. In those years after the war, clearly appeared the America we know, the America of the nineteenth century, in some respects bearing peculiarly the stamp of frontier self-reliance and frontier individualism. If that America could not make a democracy and carry it on, the failure would not be due to want of confidence in her own prowess.[1]

In the period under consideration (1815-1830) opposition to the acts of the federal government was chiefly directed against the national Bank, internal improvements, and the tariff. Opposition to the Bank can best be studied in connection with certain decisions rendered by the Supreme Court, and we shall omit that topic until we discuss those decisions. The tariff question, which by 1830 had become the center of serious and alarming dispute, will be taken up in connection with the pronouncements of South Carolina and the theories of Calhoun concerning state sovereignty (1828-1833). The earliest controversies arose in connection with proposals for expenditures for internal improvements.

The development of transportation, of means of communication, has been effective in building up nationalism and beating down localism. The nation was to attain and in the course of time did attain industrial integrity; without it, mere legal integrity would have been a shadow, should it survive at all. In the early west the steamboats — the old, but then brilliantly new, flat-bottomed steamboats — puffing their way up and down the countless rivers of the Mississippi basin made it possible to people the land quickly and to carry on with comparative comfort the task of winning the wilderness; they helped to bring the western communities together. But adequate ties with the east were lacking.

The waterways of the west were not enough. The westerners wanted roads. Late in Jefferson's administration, Gallatin, the Secretary of the Treasury, had mapped out a comprehensive plan for roads and canals, and a few years later a beginning was made on the Cumberland Road, which was intended to be a great highway connecting the east with the transmontane region. After the war the need of proper overland connection was stronger; if the western farmers were to market their own products with profit or were to obtain with any ease the products of eastern factories, there was need of more than the river systems. The easterners, too, might have felt more strongly than many appeared to do the advantage to be gained from cheaper food from the west.[2]

A number of the states entered separately upon plans for developing routes of communication within their own borders; but the problem of interstate communication and especially of highways across the mountains was replete with difficulties. The individual states were incompetent — at least they were incompetent unless they banished all thoughts of economic rivalry, and that was of course impossible. This whole matter was of importance, not so much because it involved technical interpretation of the Constitution as because constitutional or institutional unity naturally rested on actual economic interdependence. The west was beginning to demand expenditures from the national government for western roads, and the demand continued.

But plans for road-building encountered sectional opposition as well as constitutional scruples. The seaboard states found as a rule no legal obligation preventing the government from attending to the seacoast harbors; but to build roads within the states was another matter. The westerners were aroused by the readiness with which money was granted for the coast and by the reluctance or refusal to make appropriations for the west. Clay in a forceful speech (1824), lauding the patriotism and devotion of the west to the union, presented an able argument for liberal interpretation of the Constitution and for a policy which did not confine its tender attention to the states bordering on the ocean. "Yes," he exclaimed, "any thing, every thing, may be done for foreign commerce; any thing, every thing, on the margin of the ocean. But nothing for domestic trade; nothing for the great interior of the country!" "... not one stone has yet been broken, not one spade of earth has been yet removed in any Western State." [3]

In his annual message of 1816, Madison called the attention of Congress "to the expediency of exercising their existing powers, and, where necessary, of resorting to the prescribed mode of enlarging them, in order to effectuate a comprehensive system of roads and canals...." As he had already signed a bill for the establishment of the national Bank, he might well have been expected to sign the "bonus bill", which provided for using the Bank bonus and the dividends for internal improvements; but his older scruples prevailed, and on the last day of his public life (March 3, 1817) he vetoed the bill. He declared his belief in the great importance of roads and canals and the improvement 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 such power was not given by the Constitution and could not be deduced from it. "... the permanent success of the Constitution," he said, "depends on a definite partition of powers between the General and the State Governments"; and he objected to any "constructive extension" of the powers of Congress.[4] In 1822, Monroe took much the same position as his predecessor. In an elaborate paper accompanying his veto of an internal improvements bill, he descanted at length upon the nature of the union. Concerning the particular problem then under discussion he declared an amendment necessary before Congress could enter upon any control of internal improvements.

Both Madison and Monroe touched upon the meaning of the so-called "welfare clause" of the Constitution.[5] Madison's position must be considered sound theoretically; Congress is granted the authority to tax; but the words to "provide for the common defense and general welfare" do not constitute a separate and substantive grant of authority.[6] Congress has authority to raise money that it may exercise the powers authorized specifically, and these are conveniently summarized as providing for the common defense and general welfare. Monroe asserted the right of Congress to appropriate freely for any purpose of a general character, even when it cannot control the object for which the money is spent;[7] what he feared was the hand of the national government thrust within the borders of the state. This was not an unimportant announcement; it furnished a way whereby the federal government could spend money without anyone's questioning whether the object for which the money was provided was constitutionally subject to congressional control and management. It helped, in the course of the ensuing decades, to create a vast bureaucratic system at Washington which is to-day a subject of wonder if not always of admiration.

Money was appropriated for repairs of the Cumberland Road.[8] But the opposition in the south was beginning to stiffen, and New England was not willing to see money spent for the west. The subject of internal improvements was logically or practically associated with the tariff, a part of Clay's "American System"; and new sectional forces made themselves felt. The general attitude toward the constitutional power to provide for internal improvements in 1818 is illustrated by votes in the House; the opinion was then expressed that Congress could appropriate money for various improvements, but it did not have the authority to construct post-roads and military roads or canals for interstate commercial communication or even canals for military purposes. The sectional alignment in 1824 is shown by the vote on the proposal for a general survey bill, which was carried. It showed New England representatives casting twelve votes for and twenty-six against; the middle states thirty-seven for and twenty-six against; the south twenty-three for and thirty-four against; the west including the southwest forty-three for and none against.[9]

The intricacies of minute constitutional construction, which have been presented altogether too briefly in these last pages, may seem almost trivial to the eyes of the modern student of public affairs. The common man has forgotten, or almost forgotten, that Congress has only limited powers. He has seen the government engaged in legislation of such sweeping general character that he is almost unaware of the technical necessity for discovering authority to act. No one would now question the right to improve and maintain harbors, to have oversight of the improvement of roads for which federal money is expended, to build roads, to retain and maintain forest reserves within a state, or even to grant money freely for agriculture. But to look upon the scruples of the early days as evidence of stupid statesmanship is quite unnecessary. The desire to hold the central authority strictly within the assigned bounds does not imply either feeble-mindedness or criminal perversity.

The contrast between misgivings of these early years of the last century and the actual extent of national authority in recent times may be illustrated by the statement of the Supreme Court in California v. Central Pacific Railroad Company (1888).[10] It was there held that Congress has authority to authorize corporations to construct railroads and other highways across the states: "Without authority in Congress to establish and maintain such highways and bridges, it would be without authority to regulate one of the most important adjuncts of commerce." It would appear as a natural consequence from this right to build and maintain that Congress would have authority for exercising such control as to make the roads serviceable and to preserve them from injury — in other words, to exercise, if need be, general public protection of such property within state limits. When this decision was rendered, the old-time tender solicitude for the states and narrow interpretation of the Constitution had faded into the mists of antiquity.[11]

[1] Reference should of course be made to F. J. Turner, The Frontier in American History, and Rise of the New West.

[2] "When wheat brought twenty-five cents a bushel in Illinois in 1825, it sold at over eighty cents in Petersburg, Virginia, and flour was six dollars a barrel at Charleston, South Carolina." Turner, Rise of the New West, p. 106.

[3] Annals of Congress, 18 Cong., 1 sess., cols. 1035, 1040.

[4] Perhaps no better evidence of the perplexities and the difficulties of interpreting the written Constitution of a federal state and of maintaining federalism, and at the same time responding to actual insistent need for national activity and legislation, can be found than in Madison's own career and the apparent agitations of his own mind. A sincere nationalist, in the sense that he was not possessed by a loyalty to his own province but thought in national terms with real patriotism, he nevertheless believed in a large degree of states' rights as conducive to the public welfare and the maintenance of the union as he conceived that union to be. On the one hand, the states existed; the union existed under a national government with limited authority; the principle of local self-government was inherent in the nature and scheme of the union. On the other hand, the needs of the nation as a whole were real, active, persistent, increasing. To Madison, of utmost concern was the sanctity of the written word, even when the limitations it imposed were inconvenient. And if he was inconsistent, his course must be accounted for by the intrinsic difficulty of maintaining states' rights, strict construction, a regard for the limits of constitutional authority, and also the realities of national life.

[5] The Congress shall have power "To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States...." Art. I, sec. 8, para. I.

[6] See Jefferson's argument on the bank act discussed ante. In a vague paragraph of his veto message, Madison seems to imply that the power to appropriate money for general purposes may perhaps be constitutional.

[7] Richardson, Messages and Papers, II, p. 173.

[8] In his annual message of December 3, 1822, Monroe said: "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."

[9] See Turner, Rise of the New West, pp. 229, 235. Professor Ames thus sums up the important position of the states toward constitutional principles in the period under consideration: "Opposition to the doctrine of broad construction led those who objected to a protective tariff on constitutional grounds to oppose also the other important feature of the so-called 'American System,' namely, national aid to internal improvement. This was necessary on ground of consistency, if for no other. It is not surprising therefore to find generally in the series of resolutions passed by the Southern States, during the period 1825-1832, condemnation of both the protective tariff and internal improvement acts. This was especially true to 1827. In fact, contemporary evidence indicates that more emphasis was placed upon the opposition to federal internal improvement measures than to the protective tariff bills prior to that date." Ames, State Documents, no. 4, p. 1.

[10] 127 U. S. 1 (1888). See also In re Debs, 158 U. S. 564 (1895).

[11] The general welfare clause of the Constitution was interpreted and applied by the Supreme Court for the first time in 1936: United States v. Butler, 297 U. S. I. The Court rejected Madison's interpretation (see p. 363 of this volume). Its interpretation does not vary materially from Monroe's. "The power to tax and spend is a separate and distinct power; its exercise is not confined to the fields committed to Congress by the other enumerated grants of power; but it is limited by the requirement that it shall be exercised to provide for the general welfare of the United States." (Syllabus of the case p. 2.) The Court, holding the Agricultural Adjustment Act unconstitutional, declared that the act encroached upon the reserved rights of the states. "Congress has no power to enforce its commands on the farmer.... It must follow that it may not indirectly accomplish those ends by taxing and spending to purchase compliance." (Ibid., p. 74.) Three justices dissented. Justice Stone, speaking for the dissenters, said: "If the expenditure is for a national public purpose, that purpose will not be thwarted because payment is on condition which will advance that purpose.... If appropriation in aid of a program of curtailment of agricultural production is constitutional, and it is not denied that it is, payment to farmers on condition that they reduce their crop acreage is constitutional." (Ibid., p. 86.)

The Court distinguished the case from Massachusetts v. Mellon (p. 789 of this book): "It was there held that a taxpayer of the United States may not question expenditures from its treasury on the ground that the alleged unlawful diversion will deplete the public funds and thus increase the burden of future taxation" (p. 58). As the opinion points out, such expenditures had not been challenged because no remedy was open for testing their constitutionality in the Courts (p. 73).

In light of this decision and the fact that various learned commentators have rejected Madison's interpretation of the general welfare clause, the author of this volume should retract the statement on page 363 that Madison's position was sound theoretically. His own opinion should not be considered as of importance. The reprinting of this volume (1939) furnishes opportunity to make this modification of the text.


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