Restore liberty to innovate transport networks. The 5×5 Standard allows privately funded transit networks 5 times more efficient than roads to use the airspace over approved public Rights of Way for 5% of gross transport revenues. Both free markets and new source of revenue for governments.
Constitution forbids the current government transport monopolies
The Boston Tea Party was are a revolt against a government transportation monopoly. This experience caused the Constitution’s Framers to forbid government monopolies. See the Preamble, “post Roads”, “No Preference”, “necessary and proper”, “commerce”, Amendment 9 and 10.
Federal transportation and power monopolies violate the Constitution to cause oil-wars since 1991, oil-dollar-funded terrorism, the foreign oil addiction warned of by eight Presidents, mortgaging children for $67,000 each to buy foreign oil, and Climate Change.
Fortunately, the courts declared the Federal communication monopoly unconstitutional in 1982. With liberty restored nearly a century of rotary telephones was displaced as millions of jobs were created delivering better services at lower costs.
The purpose of this paper to provide the Constitutional foundation for ending government monopolies in power and transportation infrastructure.
Two Types of Governments to Monopolize Two Types of Violence
The just purpose of government is to monopolize violence to coerce compliance with the law. In ratifying the Constitution Americans Divided Sovereignty between ourselves and two types of governments to coerce compliance to constrain two types of violence:
The Articles of Confederation were adopted to wage war on the King. They proved incompetent both waging war and suppressing paths to war after the Revolution. We the People ratified the Constitution for Divided Sovereignty:
- Retain all powers and liberties not enumerated as sacrificed in written constitutions to ourselves.
- Grant unlimited taxing powers to the Federal government to wage war and suppress paths to war. Federalist Papers 1-11, 15-29 explain the needs for a Federal Government competent at war. This war-making nature of the Federal governments is discussed in other Federalist Papers.
- Retain a monopoly of violence in State governments to coerce criminal and commercial conflicts as enumerated in their Constitutions.
The men controlling Federal war-powers are mandated to “provide” for the defense of liberty and restricted to only “promote the general welfare”. Their Commerce Clause powers are limited to regulate commercial behaviors that build paths to war with a foreign government, between states, and with Indian tribes. The Constitution very specifically forbids the Federal Governing from taxing for “Ports” and limits them to “post Roads”. The Commerce Clause and Necessary and Proper Clause are capped at delivering letters in defense of free speech.
In direct violation of the Preamble, “post Roads”, “Ports”, Amendments 9 and 10, The Federal-Aid Highway Act of 1956 created a government commercial transportation monopoly. This monopoly defines the rules of economic competition in America. Families must own 1.8 cars and be addicted to foreign oil to be economically competitive.
Consequences of Violating the “post Roads”, “Ports”, and Preamble:
We did not grant sovereignty to the Federal government to use the police powers of government to confiscate wages to create build coal/oil-fired “internal improvements” with consequences of Civilization Killers:
- Resource depletion, US Peak Oil was in 1970.
- Perpetual oil-wars since 1991. Eight Presidents accurately identified foreign oil addiction as a grave national security threat.
- Oil-dollar funded terrorist attacks on America.
- NSA police state surveillance to protect against oil-funded terrorist.
- Illicit Energy, dependence on energy outside self-reliance. The Federally mandated 50% dependence on foreign oil repeats the path to war of Federal support for slavery.
- Mortgaging the liberty of children with $21 trillion in Federal debt to fund oil-wars and subsidize foreign oil purchases.
- Pollution from roads is tilting the balance of nature into Climate Change.
- Near economic collapse in 2008 with a high probability of this repeating with a collapse into Oil Famine before 2023.
- Shifting America’s economy from producing to a “needful” consuming majority, a Tyranny of the Majority.
- Shifting the American dream from personal liberty to borrowing to buy a house, car, and oil.
- Oil Famine. Oil Famine is not about a lack of oil. Oil Famine occurs when social/capital instability fractures oil’s long and capital intense supply chain. This almost occurred in the US in Sept 2008. It did occur in Syria in 2010 and is unfolding in Venezuela today, As gas prices rise the US crisis of 2008 will likely replay before 2023.
The objective of this article is to end Federal violation of the “post Roads” restriction. The background is provided on:
- We the people formed a covenant with each other as sovereigns in ratifying the Constitution. We replace the Article of Confederation to create a general government competent at waging war and coercing behaviors that create paths to war. To limit wars, we limited the Federal government to specific enumerated powers.
- Relative to highways, the enumerated nature of the Constitution was reinforced with a strict prohibition from taxing beyond “post Roads”.
- Mandated is the requirement to defend liberty for ourselves and our Posterity.
- Restricted is the duty to only “promote” the general welfare.
- The first 37 of the 85 Federalist Papers are about war, funding war, risks of war between states, and the incompetence of the general government under the Articles of Confederation in these activities.
- Federalist #10, #9, #17, #28, #45, #46, #51, #62, #79 explain why Divided Sovereignty is essential to preventing a Tyranny of the Majority.
- The “general welfare” is created by liberty intertwining two aspects. This is explained later in this paper.
- There is one Congressperson per 700,000 Americans. They can represent our interests in war and peace. Even if they were saints, with so many constituents, they can only care about the welfare of those who can buy access.
- The “post Roads” and “ports” restrictions limit Federal taxing to provide infrastructure to the defense of free speech by assuring letters can be delivered. Building roads of any kind is no longer necessary and proper in the age of the Internet.
- The 21 of the first 53 Presidential veto messages that explain the Constitution’s “post Roads” restriction. Madison 1 of 7, Monroe 1 of 1, Jackson 6 of 12, Tyler 2 of 10, Polk 2 of 3, Pierce 7 of 10, Buchanan 2 of 7. Seven Presidents vetoed Congress mixing war-powers with their commercial self-interests. Link to Presidential vetoes
- Eight Presidents issued unanswered calls to action to end the foreign oil addiction that resulted from violating the Constitution.
History of the US Post Office
The history of the US Post Office is a case study in the Federal government turning the Constitution on its head. The “post Roads” provision was voted into the Constitution on Sept 14, 1787, to defend free speech, to assure that if no other means were available to deliver letters, the Federal government could tax to build roads adequate for delivering letters in defense of free speech.
In practice, the US Post Office became a commercial monopoly using the police powers of government to limit freedom of speech by forbidding other means of delivering letters. It was a system of political patronage instead of a defender of liberty.
Recommended for background:
- Rules for Rulers, clever 20-minute video.
- Dictator’s Handbook, the basis of Rules for Rulers. It applies to democrats and autocrats.
- Why Nations Fail, the Origins of Power, Prosperity, and Poverty. Many case studies of ruler hostility to innovation.
Paths to War
A West Point education, experience as an American Infantryman, and repeated barriers to deploying solar-powered mobility networks forced a realization that Federal violation of the “post Roads” and “ports” restriction is rebuilding the two know paths for American to wage war on Americans:
- Taxation without Representation. Debt is the tax on future labor. Without consent, the $20 trillion in Federal debt taxes the liberty and future labor of each child in America $63,000. The social collapse will occur when children can no longer service this debt or pass it on to their children.
- Illicit Energy, dependence on energy outside self-reliance is repeating the path to the Civil War. Federal support for foreign oil repeats the defect of Federal support for slavery. Wars in Iraq and Afghanistan repeat the steps to wider domestic of Bleeding Kansas.
To these paths to war, Federal Quantitative Easing added the path to the French Revolution of transferring wealth from the many to the few. Printing $85 billion per month causes those who hold assets to see the value of those assets increase. Those who must trade their labor to buy assets, the young and poor, see the value of their debased.
- results from the sudden collapse of capital to support oil’s long and fragile supply chain. There will still be plenty of oil. Oil Famine nearly occurred in the US in Sept 2008. Oil Famine did occur in Syria in 2011; an 18-month 95% drop in access to oil.
Then we added to these paths to war true Civilization Killers:
- Gluttony. US Peak Oil was in 1970. Life requires energy. Cheap oil is finite. Life and nations powered by cheap oil are terminal.
- Sloth. Climate Change is our failure to assure the balance of nature. We condemn our children to an uncertain future because we socialize pollution costs instead of capitalizing them into the price of goods and services. We violate the fundaments of usufruct capitalism.
Constitutional Barriers to the Paths to War and Civilization Killers Created by the Federal Government
The Divided Sovereignty between Federal and State governments was explained in:
- Federalist #51 (Madison):
“Ambition must be made to counteract ambition.”
- Federalist #46 (Madison):
The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.
- Federalist #45 (Madison):
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
We create governments to monopolize violence to coerce compliance with the law. To limit violence and monopoly we limit governments with constitutions.
In America, We the People, replaced the Articles of Confederation with the Constitution to create a Federal government capable of effectively waging war and punishing behaviors that build paths to war. To limit war, we mandated one duty and one restriction:
- Mandated is to “provide” for the defense of liberty for ourselves and our Posterity.
- Restricted is the obligation to only “promote” the general welfare. In terms of infrastructure, the “post Roads” restriction limit “internal improvement” to no more than delivering letters in defense of free speech.
- Liberty, not governments, is the source of the “general welfare.”
Federal violation of the “post Roads” restriction became the cause of war and social collapse
- Pollution is driving Climate Change.
- Oil-wars since 1991.
- Oil-dollar funded terrorism.
States Voted 8 to 3
On September 14, 1787, in the Constitutional convention, Dr. Franklin proposed the Federal government be enumerated a power to tax and build highways and canals. James Madison recommended it be raised to power for the Federal government to form corporations to do useful tasks. After George Mason reminded delegates of the problems with King’s transportation monopoly, the East India Company, and Boston Tea Party, they voted 8 states to 3 to restrict Federal involvement in infrastructure to no more than “post Roads”, no more than was essential to deliver letters in defense of free speech.
Preamble, “post Roads” and “harbor” Restrictions of the Constitution
The Preamble is the mission statement of the Federal government. It sets the enumerated nature of the Constitution in place declaring a single mandate for the Federal government to “provide” for the defense of liberty and restricting it to only “promote” welfare. All other clauses in the Constitution are subordinate to this enumerated nature and Federal mission:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Article 1, Section 8:
“To establish Post Offices and post Roads;”
Article 1, Section 9:
“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another;”
The Citizen is Sovereign, in ratifying the Constitution to perfect the Federal government’s ability to monopolize violence to prevent and wage war. The Articles of Confederation had proven incompetent at defending the nation. To limit war and prevent a Tyranny of the Majority, we Divided Sovereignty:
We ratified the Constitution with a clear understanding that our consent to be government can only be changed by Article 5 Amendment. We ratified the Constitution with a clear understanding of the need for diverse state economies as explained in Federalist #9 and #10. We the People retained sovereignty over the “general welfare”. Liberty is the source of the general welfare two primary aspect intertwine:
- Choices: Liberty is society’s tolerance for disruptive minorities. There are few minorities as tiny and disruptive as commercial innovators.
- Sorting Choices: Wisdom from the Many. The aggregated self-interest of all of us, with each of us acting in our own self-interest is wiser than the wisest of us at choosing between choices.
New York’s ratifying declaration clearly states what We the People Ratified:
That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.
Massachusett’s ratifying declaration recommends the clarity that the Constitution is an enumerated powers document:
First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.
Fifthly, That Congress erect no Company of Merchants with exclusive advantages of commerce.
Virginia’s ratifying declaration stated what we the people are sovereign and grant the Federal government a monopoly of violence restriced to its enumerated nature:
People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will
Bill of Rights Recommendations:
Second, That all power is naturally vested in and consequently derived from the people; that Magistrates, therefore, are their trustees and agents and at all times amenable to them.
Fourth, That no man or set of Men are entitled to exclusive or seperate public emoluments or privileges from the community, but in Consideration of public services; which not being descendible, neither ought the offices of Magistrate, Legislator or Judge, or any other public office to be hereditary.
Seventh, That no commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no Treaty ceding, contracting, restraining or suspending the territorial rights or claims of the United States, or any of them or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers shall be but in cases of the most urgent and extreme necessity, nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.
Eighth, That no navigation law, or law regulating Commerce shall be passed without the consent of two thirds of the Members present in both houses.
Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.
Bill of Rights
The Bill of Rights incorporated the understanding of what the people ratified in the states. The enumerated nature of the Constitution is restated in Amendments 9 and 10:
Amendment 9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
There is no enumerated power for Federal intrusion into commerce beyond suppressing the paths to war. There are strict prohibitions against the Federal “natural monopolies” in communications, power, and transportation infrastructures.
Recognizing the Federal communications monopoly as unconstitutional in 1982 restore liberty, returned that segment of commerce to the sovereignty of the people. The near century of rotary telephones under Federal monopoly was swept aside. Liberty was restored for innovators to offer choices. Liberty was restored for people to choose between those choices in free markets. Millions of jobs were created delivering better services at lower costs.
Federal monopoly protected the rotary telephone from the competition. American still have the gas mileage the Model-T (25 mpg) because the Federal transportation monopoly blocks innovation. I recommend reading the book, Why Nations Fail, the Origins of Power, Prosperity, and Poverty.
Presidents vetoed internal improvement bills to protect the people’s sovereignty over the general welfare:
Having considered the bill this day presented to me entitled ‘An act to set apart and pledge certain funds for internal improvements,’ and which sets apart and pledges funds ‘for constructing roads and canals, and improving the navigation of water courses’ . . . I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives. The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers.
It is a complete right of jurisdiction and sovereignty for all the purposes of internal improvement, and not merely the right of applying money under the power vested in Congress to make appropriations, under which power, with the consent of the States through which this road passes, the work was originally commenced, and has been so far executed. I am of opinion that Congress do not possess this power; that the States individually can not grant it, for although they may assent to the appropriation of money within their limits for such purposes, they can grant no power of jurisdiction or sovereignty by special compacts with the United States. This power can be granted only by an amendment to the Constitution and in the mode prescribed by it.
If the power exist, it must be either because it has been specifically granted to the United States or that it is incidental to some power which has been specifically granted. If we examine the specific grants of power we do not find it among them, nor is it incidental to any power which has been specifically granted.
It has never been contended that the power was specifically granted. It is claimed only as being incidental to some one or more of the powers which are specifically granted. The following are the powers from’ which it is said to be derived:
First, from the right to establish post-offices and post-roads; second, from the right to declare war; third, to regulate commerce; fourth, to pay the debts and provide for the common defense and general welfare; fifth, from the power to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States or in any department or officer thereof; sixth and lastly, from the power to dispose of and make all needful rules and regulations respecting the territory and other property of the United States.
According to my judgment it can not be derived from either of those powers, nor from all of them united, and in consequence it does not exist.
The constitutional power of the Federal Government to construct or promote works of internal improvement presents itself in two points of view–the first as bearing upon the sovereignty of the States within whose limits their execution is contemplated, if jurisdiction of the territory which they may occupy be claimed as necessary to their preservation and use; the second as asserting the simple right to appropriate money from the National Treasury in aid of such works when undertaken by State authority, surrendering the claim of jurisdiction. In the first view the question of power is an open one, and can be decided without the embarrassments attending the other, arising from the practice of the Government. Although frequently and strenuously attempted, the power to this extent has never been exercised by the Government in a single instance. It does not, in my opinion, possess it; and no bill, therefore, which admits it can receive my official sanction.
- President Tyler on June 11, 1844
The power to remove obstructions from the water courses of the States is claimed under the granted power “to regulate commerce with foreign nations, among the several States , and with the Indian tribes;” but the plain and obvious meaning of this grant is that Congress may adopt rules and regulations prescribing the terms and conditions on which the citizens of the United States may carry on commercial operations with foreign states or kingdoms, and on which the citizens or subjects of foreign states or kingdoms may prosecute trade with the United States or either of them. And so the power to regulate commerce among the several States no more invests Congress with jurisdiction over the water courses of the States than the first branch of the grant does over the water courses of foreign powers, which would be an absurdity.
Twenty thousand dollars are proposed to be appropriated toward improving the harbor of Richmond, in the State of Virginia. Such improvement would furnish advantages to the city of Richmond and add to the value of the property of its citizens, while it might have a most disastrous influence over the wealth and prosperity of Petersburg
The main question in that aspect is whether it is wise, while all the means and credit of the Government are needed to bring the existing war to an honorable close, to impair the one and endanger the other by borrowing money to be expended in a system of internal improvements capable of an expansion sufficient to swallow up the revenues not only of our own country, but of the civilized world? It is to be apprehended that by entering upon such a career at this moment confidence at home and abroad in the wisdom and prudence of the Government would be so far impaired as to make it difficult, without an immediate resort to heavy taxation, to maintain the public credit and to preserve the honor of the nation and the glory of our arms in prosecuting the existing war to a successful conclusion. Had this bill become a law, it is easy to foresee that largely increased demands upon the Treasury would have been made at each succeeding session of Congress for the improvements of numerous other harbors, bays, inlets, and rivers of equal importance with those embraced by its provisions. Many millions would probably have been added to the necessary amount of the war debt, the annual interest on which must also have been borrowed, and finally a permanent national debt been fastened on the country and entailed on posterity.
The experience of several of the States, as well as that of the United States, during the period that Congress exercised the power of appropriating the public money for internal improvements is full of eloquent warnings. It seems impossible, in the nature of the subject, as connected with local representation, that the several objects presented for improvement shall be weighed according to their respective merits and appropriations confined to those whose importance would justify a tax on the whole community to effect their accomplishment.
In some of the States systems of internal improvements have been projected, consisting of roads and canals, many of which, taken separately, were not of sufficient public importance to justify a tax on the entire population of the State to effect their construction, and yet by a combination of local interests, operating on a majority of the legislature, the whole have been authorized and the States plunged into heavy debts. To an extent so ruinous has this system of legislation been carried in some portions of the Union that the people have found it necessary to their own safety and prosperity to forbid their legislatures, by constitutional restrictions, to contract public debts for such purposes without their immediate consent.
If the abuse of power has been so fatal in the States, where the systems of taxation are direct and the representatives responsible at short periods to small masses of constituents, how much greater danger of abuse is to be apprehended in the General Government, whose revenues are raised by indirect taxation and whose functionaries are responsible to the people in larger masses and for longer terms.
We have seen in our States that the interests of individuals or neighborhoods, combining against the general interest, have involved their governments in debts and bankruptcy; and when the system prevailed in the General Government, and was checked by President Jackson, it had begun to be considered the highest merit in a member of Congress to be able to procure appropriations of public money to be expended within his district or State, whatever might be the object. We should be blind to the experience of the past if we did not see abundant evidences that if this system of expenditure is to be indulged in combinations of individual and local interests will be found strong enough to control legislation, absorb the revenues of the country, and plunge the Government into a hopeless indebtedness.
Such a system is subject, moreover, to be perverted to the accomplishment of the worst of political purposes. During the few years it was in full operation, and which immediately preceded the veto of President Jackson of the Maysville road bill, instances were numerous of public men seeking to gain popular favor by holding out to the people interested in particular localities the promise of large disbursements of public money. Numerous reconnoissances and surveys were made during that period for roads and canals through many parts of the Union, and the people in the vicinity of each were led to believe that their property would be enhanced in value and they themselves be enriched by the large expenditures which they were promised by the advocates of the system should be made from the Federal Treasury in their neighborhood. Whole sections of the country were thus sought to be influenced, and the system was fast becoming one not only of profuse and wasteful expenditure, but a potent political engine.
Speculation, disguised under the cloak of public good, will call on Congress to deepen shallow inlets, that it may build up new cities on their shores, or to make streams navigable which nature has closed by bars and rapids, that it may sell at a profit its lands upon their banks. To enrich neighborhoods by spending within them the moneys of the nation will be the aim and boast of those who prize their local interests above the good of the nation, and millions upon millions will be abstracted by tariffs and taxes from the earnings of the whole people to foster speculation and subserve the objects of private ambition.
Such a system could not be administered with any approach to equality among the several States and sections of the Union. There is no equality among them in the objects of expenditure, and if the funds were distributed according to the merits of those objects some would be enriched at the expense of their neighbors. But a greater practical evil would be found in the art and industry by which appropriations would be sought and obtained. The most artful and industrious would be the most successful. The true interests of the country would be lost sight of in an annual scramble for the contents of the Treasury, and the Member of Congress who could procure the largest appropriations to be expended in his district would claim the reward of victory from his enriched constituents. The necessary consequence would be sectional discontents and heartburnings, increased taxation, and a national debt never to be extinguished.
In view of these portentous consequences, I can not but think that this course of legislation should be arrested, even were there nothing to forbid it in the fundamental laws of our Union. This conclusion is fortified by the fact that the Constitution itself indicates a process by which harbors and rivers within the States may be improved–a process not susceptible of the abuses necessarily to flow from the assumption of the power to improve them by the General Government, just in its operation, and actually practiced upon, without complaint or interruption, during more than thirty years from the organization of the present Government.
Thus, within the brief period of less than ten years after the commencement of internal improvements by the General Government the sum asked for from the Treasury for various projects amounted to more than $200,000,000. President Jackson’s powerful and disinterested appeals to his country appear to have put down forever the assumption of power to make roads and cut canals, and to have checked the prevalent disposition to bring all rivers in any degree navigable within the control of the General Government. But an immense field for expending the public money and increasing the power and patronage of this Government was left open in the concession of even a limited power of Congress to improve harbors and rivers–a field which millions will not fertilize to the satisfaction of those local and speculating interests by which these projects are in general gotten up. There can not be a just and equal distribution of public burdens and benefits under such a system, nor can the States be relieved from the danger of fatal encroachment, nor the United States from the equal danger of consolidation, otherwise than by an arrest of the system and a return to the doctrines and practices which prevailed during the first thirty years of the Government.
A proposition was made in the Convention to provide for the appointment of a “Secretary of Domestic Affairs,” and make it his duty, among other things, “to attend to the opening of roads and navigation and the facilitating communications through the United States.” It was referred to a committee, and that appears to have been the last of it. On a subsequent occasion a proposition was made to confer on Congress the power to “provide for the cutting of canals when deemed necessary,” which was rejected by the strong majority of eight States to three. Among the reasons given for the rejection of this proposition, it was urged that “the expense in such cases will fall on the United States and the benefits accrue to the places where the canals may be cut.”
During the consideration of this proposition a motion was made to enlarge the proposed power for “cutting canals” into a power “to grant charters of incorporation when the interest of the United States might require and the legislative provisions of the individual States may be incompetent;” and the reason assigned by Mr. Madison for the proposed enlargement of the power was that it would “secure an easy communication between the States, which the free intercourse now to be opened seemed to call for. The political obstacles being removed, a removal of the natural ones, as far as possible, ought to follow.”
The original proposition and all the amendments were rejected, after deliberate discussion, not on the ground, as so much of that discussion as has been preserved indicates, that no direct grant was necessary, but because it was deemed inexpedient to grant it at all. When it is considered that some of the members of the Convention, who afterwards participated in the organization and administration of the Government, advocated and practiced upon a very liberal construction of the Constitution, grasping at many high powers as implied in its various provisions, not one of them, it is believed, at that day claimed the power to make roads and canals, or improve rivers and harbors, or appropriate money for that purpose. Among our early statesmen of the strict-construction class the opinion was universal, when the subject was first broached, that Congress did not possess the power, although some of them thought it desirable.
President Jefferson, in his message to Congress in 1806, recommended an amendment of the Constitution, with a view to apply an anticipated surplus in the Treasury “to the great purposes of the public education, roads, rivers, canals, and such other objects of public improvement as it may be thought proper to add to the constitutional enumeration of Federal powers.” And he adds:
I suppose an amendment to the Constitution, by consent of the States, necessary, because the objects now recommended are not among those enumerated in the Constitution, and to which it permits the public moneys to be applied.
In 1825 he repeated, in his published letters, the opinion that no such power has been conferred upon Congress.
In relation to the regulation of commerce, the language of the grant in the Constitution is:
Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.
That to “regulate commerce” does not mean to make a road, or dig a canal, or clear out a river, or deepen a harbor would seem to be obvious to the common understanding. To “regulate” admits or affirms the preexistence of the thing to be regulated. In this case it presupposes the existence of commerce, and, of course, the means by which and the channels through which commerce is carried on. It confers no creative power; it only assumes control over that which may have been brought into existence through other agencies, such as State legislation and the industry and enterprise of individuals. If the definition of the word “regulate” is to include the provision of means to carry on commerce, then have Congress not only power to deepen harbors, clear out rivers, dig canals, and make roads, but also to build ships, railroad cars, and other vehicles, all of which are necessary to commerce. There is no middle ground.
- President Pierce on December 30, 1854, “An act making appropriations for the repair, preservation, and completion of certain public works heretofore commenced under the authority of law”
In view of all this, it is not easy to estimate the disastrous consequences which must have resulted from such extended local improvements being undertaken by the General Government. State legislation upon this subject would have been suspended and private enterprise paralyzed, while applications for appropriations would have perverted the legislation of Congress, exhausted the National Treasury, and left the people burdened with a heavy public debt, beyond the capacity of generations to discharge.
then it seems to me undeniable that it may be constitutionally comprehended in the powers to declare war, to provide and maintain a navy, and to raise and support armies. At the same time, it would be a misuse of these powers and a violation of the Constitution to undertake to build upon them a great system of internal improvements.
But there is one clause of the Constitution in which it has been suggested that express authority to construct works of internal improvement has been conferred on Congress, namely, that which empowers it “to exercise exclusive legislation in all cases whatsoever over such district (not exceeding 10 miles square) as may by cession of particular States and the acceptance of Congress become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings .” But any such supposition will be seen to be groundless when this provision is carefully examined and compared with other parts of the Constitution.
- President Buchanan on Feb 1, 1860, St. Clair Flats. As this NY Times article from 1860 notes there was anger at the “deliberate disregard of the popular will” in vetoing the bill. There is always a Tyranny of the Majority willing to tax their children to get things they want today. (background)
The power to pass the bill in question, if it exist at all, must be derived from the power “to regulate commerce with foreign nations and among the several States and with the Indian tribes.”
The power “to regulate:” Does this ever embrace the power to create or to construct? To say that it does is to confound the meaning of words of well-known signification. The word “regulate” has several shades of meaning, according to its application to different subjects, but never does it approach the signification of creative power. The regulating power necessarily presupposes the existence of something to be regulated. As applied to commerce, it signifies, according to the lexicographers, “to subject to rules or restrictions, as to regulate trade,” etc. The Constitution itself is its own best expounder of the meaning of words employed by its framers. Thus, Congress have the power “to coin money.” This is the creative power. Then immediately follows the power “to regulate the value thereof “–that is, of the coined money thus brought into existence. The words “regulate,” “regulation,” and “regulations” occur several times in the Constitution, but always with this subordinate meaning. Thus, after the creative power “to raise and support armies” and “to provide and maintain a navy” had been conferred upon Congress, then follows the power “to make rules for the government and regulation of the land and naval forces” thus called into being. So the Constitution, acting upon the self-evident fact that “commerce with foreign nations and among the several States and with the Indian tribes” already existed, conferred upon Congress the power “to regulate” this commerce. Thus, according to Chief Justice Marshall, the power to regulate commerce “is the power to prescribe the rule by which commerce is to be governed.” And Mr. Madison, in his veto message of the 3d March, 1817, declares that–
“The power to regulate commerce among the several States” can not include a power to construct roads and canals and to improve the navigation of water courses, in order to facilitate, promote, and secure such commerce, without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
We know from the history of the Constitution what these inconveniences were. Different States admitted foreign imports at different rates of duty. Those which had prescribed a higher rate of duty for the purpose of increasing their revenue were defeated in this object by the legislation of neighboring States admitting the same foreign articles at lower rates. Hence jealousies and dangerous rivalries had sprung up between the different States. It was chiefly in the desire to provide a remedy for these evils that the Federal Convention originated. The Constitution, for this purpose, conferred upon Congress the power to regulate commerce in such a manner that duties should be uniform in all the States composing the Confederacy, and, moreover, expressly provided that “no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.” If the construction of a harbor or deepening the channel of a river be a regulation of commerce, as the advocates of this power contend, this would give the ports of the State within which these improvements were made a preference over the ports of other States, and thus be a violation of the Constitution.
It is not too much to assert that no human being in existence when the Constitution was framed entertained the idea or the apprehension that by conferring upon Congress the power to regulate commerce its framers intended to embrace the power of constructing roads and canals and of creating and improving harbors and deepening the channels of rivers throughout our extensive Confederacy. Indeed, one important branch of this very power had been denied to Congress in express terms by the Convention. A proposition was made in the Convention to confer on Congress the power “to provide for the cutting of canals when deemed necessary.” This was rejected by the strong majority of eight States to three. Among the reasons given for this rejection was that “the expense in such cases will fall on the United States and the benefits accrue to the places where the canals may be cut.”
To say that the simple power of regulating commerce embraces within itself that of constructing harbors, of deepening the channels of rivers–in short, of creating a system of internal improvements for the purpose of facilitating the operations of commerce would be to adopt a latitude of construction under which all political power might be usurped by the Federal Government. Such a construction would be in conflict with the well-known jealousy against Federal power which actuated the framers of the Constitution. It is certain that the power in question is not enumerated among the express grants to Congress contained in the instrument. In construing the Constitution we must then next inquire, Is its exercise “necessary and proper”?–not whether it may be convenient or useful “for carrying into execution” the power to regulate commerce among the States. But the jealous patriots of that day were not content even with this strict rule of construction. Apprehending that a dangerous latitude of interpretation might be applied in future times to the enumerated grants of power, they procured an amendment to be made to’ the original instrument, which declares that “the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.”
“For more than thirty years after the adoption of the Federal Constitution the power to appropriate money for the construction of internal improvements was neither claimed nor exercised by Congress. After its commencement, in 1820 and 1821, by very small and modest appropriations for surveys, it advanced with such rapid strides that within the brief period of ten years, according to President Polk, “the sum asked for from the Treasury for various projects amounted to more than $200,000,000.” The vetoes of General Jackson and several of his successors have impeded the progress of the system and limited its extent, but have not altogether destroyed it. The time has now arrived for a final decision of the question. If the power exists, a general system should be adopted which would make some approach to justice among all the States, if this be possible.
What a vast field would the exercise of this power open for jobbing and corruption! Members of Congress, from an honest desire to promote the interest of their constituents, would struggle for improvements within their own districts, and the body itself must necessarily be converted into an arena where each would endeavor to obtain from the Treasury as much money as possible for his own locality. The temptation would prove irresistible. A system of “ logrolling ” (I know no word so expressive) would be inaugurated, under which the Treasury would be exhausted and the Federal Government be deprived of the means necessary to execute those great powers clearly confided to it by the Constitution for the purpose of promoting the interests and vindicating the honor of the country.
Whilst the power over internal improvements, it is believed, was “reserved to the States respectively,” the framers of the Constitution were not unmindful that it might be proper for the State legislatures to possess the power to impose tonnage duties for the improvement of rivers and harbors within their limits. The self-interest of the different localities would prevent this from being done to such an extent as to injure their trade. The Constitution, therefore, which had in a previous clause provided that all duties should be uniform throughout the United States, subsequently modified the general rule so far as to declare that “no State shall without the consent of Congress levy any duty of tonnage.” The inference is therefore irresistible that with the consent of Congress such a duty may be imposed by the States. Thus those directly interested in the improvement may lay a tonnage duty for its construction without imposing a tax for this purpose upon all the people of the United States.”
As President Buchanan noted in his veto of “internal improvements”, for the first 30 years under the Constitution, Congress did not aggressively violate the “post Roads” and “harbor” clauses. President’s Madison through Buchanan vetoed such Pork Barreling. But subsequently, Henry Clay’s efforts to implement the American System of Federal infrastructure projects gained strength during the Civil War. A tipping point in harnessing the American people to Federal infrastructure was reached in 1913. A Tyranny of the Majority formed that wanted less liberty and to expand Federal confiscation of wealth to achieve what they believed was “social good”:
- The 16th Amendment implemented Income Tax.
- The Federal Reserve was created so the Federal government could borrow against its ability to tax future labor.
- The 17th Amendment changed election of Senators from State Legislatures to popular election. The cost of political corruption was reduced from having to buy half a state legislature, to merely contributing to the election of a Senator. The power of States to prevent Federal encroachment on State sovereignty and from borrowing and taxing the people was greatly reduced.
- In 1917 Congress passed the 18th Amendment to expand Federal police powers to deprive liberty to beer.
- In 1918, instead of raising taxes to go into World War I, President Truman borrowed $30 billion against the power to tax future labor to repay the debt. Communications, power, and transportation infrastructures were monopolized/socialized as “natural monopolies.”
- In 1935 President Roosevelt removed energy self-reliance as a market force with the Rural Electrification Administration. The entire distributed energy industry that had sold 600,000 windmills was wiped out. Over time those windmills were mostly abandoned in favor of the coal-fired central grid subsidized by Federal and state monopolies. Progress towards achieving what Thomas Edison noted as practical in 1910 was arrested:
“Sunshine is spread out thin and so is electricity. Perhaps they are the same, Sunshine is a form of energy, and the winds and the tides are manifestations of energy.”
“Do we use them? Oh, no! We burn up wood and coal, as renters burn up the front fence for fuel. We live like squatters, not as if we owned the property.
“There must surely come a time when heat and power will be stored in unlimited quantities in every community, all gathered by natural forces. Electricity ought to be as cheap as oxygen….”
- The Federal-Aid Highway Act of 1956 removed efficiency as a market force and the survival of America was subordinated to dependence on moving two tons to move a person by burning oil. Since US Peak Oil in 1970, the survival of America was subordinated to a foreign power, imported oil. Civilization Killers were incrementally created by a Tyranny of the Majority.
Liberty and the “general welfare”
Congress’ powers under Article 1, Section 8 are subordinated to the Federal mission statement, the Preamble. The Preamble restricts Federal sovereignty, for all branches, to no more than “promote” the “general welfare”. Article 1, Section 8 “provide is limited to those functions specifically listed in that section.
The “general welfare” is created by the people combining Wisdom of the Many choosing between choices offered by the status quo and disruptive minorities.
Under the Federal communications monopoly, liberty was restricted. Americans experienced nearly a century of rotary telephones. After liberty was restored in 1982, niche markets formed a Darwinian crucible in which innovators offered choices and customers elevated or allowed to fail those choices based on perceived value. Long dormant innovations such as the Internet (1969) and radiotelephones (1946) scaled to commercial viability.
After Divided Sovereignty is enforced, millions of jobs will be created building the Physical Internet®. Inventors will offer choices. People will choose cleaner, faster, safer, and more affordable mobility networks.
Reference: New York University Journal of Law & Liberty
Three states in 1791, Massachusetts, Maryland, and North Carolina, did bar monopolies in their State Constitutions.
By 1868, five states out of thirty-seven banned monopolies in their state constitutions, and by 2010 eleven states: Arizona, Arkansas, Colorado, Georgia, Idaho, Kentucky, Maryland, Minnesota, North Carolina, Tennessee, and Texas had banned monopolies in their state constitutions. There thus appears to be a growing constitutional trend in the United States toward banning monopolies.
- Maryland: Article 41 of the Bill of Rights
“That monopolies are odious, contrary to the spirit of a free government and the principles of commerce, and ought not to be suffered.”
- Wyoming: §030. Monopolies and perpetuities prohibited.”Perpetuities and monopolies are contrary to the genius of a free state, and shall not be allowed. Corporations being creatures of the state, endowed for the public good with a portion of its sovereign powers, must be subject to its control.”
- Massachusetts: Article VI.
“No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community,”
“Perpetuities and monopolies are contrary to the genius of a free state and shall not be allowed.”
- Federalist #17 (Hamilton): “Allowing the utmost latitude to the love of power which any reasonable man can require, I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition…. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.”