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.

AuthorGrace, Adam S.

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. Did legislators of the period believe that prior unopposed legislative practices could be deemed precedent that would provide meaning to an evolving Constitution, or did they believe that reliance on such precedent was unconstitutional because it could potentially amend the fixed words of the Constitution outside the established amendment mechanism? (16)

In arguing that legislative precedent established Congress's "undoubted right" under the Commerce Clause, Representative Isacks was harkening back to the then longstanding federal practice of building one particular type of internal improvement: lighthouses and similar navigational aids. (17) In fact, despite the slow evolution of the federal internal improvement program, the power to build lighthouses was established within the first five months of the First Federal Congress. (18) From that early date forward, the power to regulate (i.e. facilitate) commerce by constructing such navigational aids was continuously exercised without serious challenge. Just as routinely, federal lighthouse construction was relied on by congressmen as a helpful analogous precedent for arguments in favor of a broader power to construct roads and canals. (19)

The power to construct lighthouses and related navigational aids was always a factor in congressional debates regarding the weight that should be afforded to Commerce Clause precedents. In fact, the birth of the federal lighthouse system provides an excellent example of the power that legislative precedent--or the lack of such precedent--had over the development of constitutional interpretation in the early republic.

In 1789, when the First Federal Congress first sat, it would not have been clear to everyone that (1) the federal government had the power to construct lighthouses; and (2) the power to "regulate" commerce included the power to "facilitate" commerce by constructing such internal improvements. Nevertheless, the Commerce Clause precedent created by the Lighthouse Act remained virtually unquestioned, even while the power to "construct" improvements and "facilitate" commerce would be debated for decades in relation to proposed road and canal programs. Whether the lighthouse precedent was to be accorded broader application was heavily debated, but the precedent of federal lighthouse building was never overruled.

The first half of Part I explains how the Commerce Clause was quickly expanded to encompass federal lighthouse operation. (20) As it turns out, the federal government's swift entry into questionable constitutional waters did not occur because the First Federal Congress arrived at a principled and universal interpretation of the Commerce Clause. Rather, the federal government took up this type of internal improvement so rapidly because of narrow considerations stemming from the newly-imposed federal tax policy. With the new federal government collecting the specific type of duties previously relied upon by states for the maintenance of their lighthouses ("tonnage duties"), political considerations were greatly aided by an interpretation of the Commerce Clause that justified creation of a federal lighthouse system.

The second half of Part I discusses how the precedent of lighthouse building was relied on during the internal improvement debates, and how interpretations of the Commerce Clause were affected by such legislative precedent. (21) In sum, subsequent congressional debate shows that legislative precedent for lighthouse building became solidified as a valid constitutional interpretation, even though the Lighthouse Act was enacted (for reasons related to the nexus between lighthouses and federal tonnage policy) before there would have been wide agreement that the power to regulate under the Commerce Clause included the power to facilitate commerce.

Part II examines the eminent domain issue raised by the second quote provided at the beginning of this article. (22) The federal government's power to take private property was not confirmed by the Supreme Court until the 1870s. The accepted history holds that the federal government did not exercise its eminent domain powers until that late date because of doubts that such power existed. The history of the federal lighthouse program in the 1790s, however, suggests the need for reconsideration of the accepted eminent domain historiography. In brief, there is evidence that the early administrators of the lighthouse program were more prepared than previously assumed to exercise federal takings power. It appears that the delay in solidification of a federal eminent domain power occurred not because of doubts that existed right after the founding, but rather because the use of the power never took hold as precedent for other reasons. As explained in Part II, early exercise of the power combined federal acquisition of title with acquisition of jurisdiction. Although state consent was required for the federal acquisition of jurisdiction, it was not required for federal jurisdiction of title. Later, politicians blurred the two concepts together in arguing that the federal government lacked the power to take title without state consent.

In other words, an examination of the birth of the federal lighthouse system shows us both sides of the power that nonjudicially created precedent could hold in the early republic. Because lighthouses were routinely constructed, the interpretation of the Commerce Clause followed suit. But because the federal government had not routinely and clearly exercised its powers to condemn property without any state involvement, the federal takings power shrank, even though earlier understandings of the Constitution could have supported its exercise.

We turn now to an examination of how the federal lighthouse system created Commerce Clause precedent in the first months of the First Federal Congress.

  1. FEDERALIZATION OF LIGHTHOUSES AND THE CREATION OF LEGISLATIVE PRECEDENT UNDER THE COMMERCE CLAUSE

    1. How Federal Tax...

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