Academic journal article Albany Law Review

From the Lighthouses: How the First Federal Internal Improvement Projects Created Precedent That Broadened the Commerce Clause, Shrunk the Takings Clause, and Affected Early Nineteenth Century Constitutional Debate

Academic journal article Albany Law Review

From the Lighthouses: How the First Federal Internal Improvement Projects Created Precedent That Broadened the Commerce Clause, Shrunk the Takings Clause, and Affected Early Nineteenth Century Constitutional Debate

Article excerpt

I will not go to a dictionary for the meaning of the word "regulate." I will go to the history of legislation, commencing with the foundation of this Government, and continued without interruption or objection, on constitutional principles, down to this day, to prove what the undoubted right of Congress, under the power in question, is.

Representative Jacob C. Isacks (Mar. 24, 1830). (1)

[The power to take private property] only appears a little novel, because we are not familiarized to it.

Representative Joseph Hemphill (Jan. 14, 1823). (2)

INTRODUCTION

In the first few decades of the nineteenth century, pages and pages of the Annals of Congress and Register of Debates were filled with repeated debates over the constitutionality of federally-sponsored internal improvement projects intended to facilitate commerce through improved transportation. (3) Among other topics, congressmen fought over whether the power to "regulate" commerce included the power to "facilitate" commerce by constructing roads and canals. (4) The existence of a federal eminent domain power (potentially necessary to bring such projects to fruition) was also questioned during these debates. (5)

The quotes from Representative Jacob C. Isacks and Representative Joseph Hemphill, stated above, come from two such internal improvement debates. (6) At the time the statements were made, Congress was debating on a slate that was only one-third clean. Although it was of crucial importance to the development of the country, the question of whether the Constitution empowered the federal government to create internal improvements never reached a federal court. (7) The slate, however, did contain the prior constitutional interpretations (or constructions) of the other two branches of government. It was that slate--the "history of legislation"--that Tennessee Representative Jacob Isacks was consulting, instead of the dictionary, in searching for constitutional meaning. (8) Isacks's comment illustrates a key aspect of the debate he and his colleagues were engaged in: whether Congress could rely on legislative precedent as conclusive evidence of the proper construction of the Constitution.

The dominant twentieth and twenty-first century concept of the balance of powers places the power of constitutional interpretation squarely within the province of the judiciary. (9) Recent scholarship, however, particularly that of Larry D. Kramer, has argued for a revival of the legislature's historical role in determining constitutional meaning. (10) Additionally, the proper roles of the court and the legislature in constitutional interpretation remain very much in debate today. (11)

Rather than entering that debate, let us return instead to the internal improvement debates of the early nineteenth century. In doing so, we find a strongly worded dissent from Mr. Isacks's view that Congress could rely on legislative precedent to impart meaning to words in the Constitution when the dictionary may have suggested otherwise. (12) The issue was not just one of balance of powers (whether Congress, rather than the Court, could impart meaning to the Constitution). Central to the debate was whether legislative precedent could be given weight in any constitutional interpretation. It is a question that goes to the heart of the nature of our Constitution.

As John Reid has shown, the concept of constitutional law being built on custom was a part of eighteenth century jurisprudence. (13) Just as rights could be established by customary practice, the danger was that any innovation in the law could become "mutated from an aberration into a precedent." (14) In Reid's words, the creation of precedent "was the ultimate constitutional risk" because through it the unconstitutional could be converted into the constitutional. (15)

The internal improvement debates of the early nineteenth century provide a rich example of a debate over whether earlier conceptions of a customary constitution still held sway. …

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