Learning Today From James Madison's Last Official Act As President: The Bonus Bill Veto Message

Speaker of the House Henry Clay and Foreign Affairs Committee Chairman John C. Calhoun pushed legislation known as the Bonus Bill through the House of Representatives. On December 23, 1816 Calhoun introduced the bill to set apart funds for "internal improvements," spending money on roads, canals, or what today would be commonly referred to as infrastructure. The bill had set apart and pledged federal funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense."

The House of Representatives passed Bonus Bill thinking President James Madison would sign it as a vocal supporter of such nationally funded "internal improvements." In his 1815 annual message James Madison had himself stated: "Among the means of advancing the public interest the occasion is a proper one for recalling the attention of Congress to the great importance of establishing throughout our country the roads and canals which can best be executed under the national authority. No objects within the circle of political economy so richly repay the expense bestowed on them; there are none the utility of which is more universally ascertained and acknowledged; none that do more honor to the governments whose wise and enlarged patriotism duly appreciates them. Nor is there any country which presents a field where nature invites more the art of man to complete her own work for his accommodation and benefit. These considerations are strengthened, moreover, by the political effect of these facilities for intercommunication in bringing and binding more closely together the various parts of our extended confederacy. Whilst the States individually, with a laudable enterprise and emulation, avail themselves of their local advantages by new roads, by navigable canals, and by improving the streams susceptible of navigation, the General Government is the more urged to similar undertakings, requiring a national jurisdiction and national means, by the prospect of thus systematically completing so inestimable a work." Congress in 1816 therefore had good reason to believe it would have Madison's full support and would easily gain his signature on the Bonus Bill. However, they had neglected one important caveat that Madison had himself stipulated in 1815. Madison had said that "it is a happy reflection that any defect of constitutional authority which may be encountered can be supplied in a mode which the Constitution itself has providently pointed out." President James Madison in his last act as President vetoed the bill on March 3, 1817 on the grounds that it was unconstitutional. An explanation was provided by Madison in a veto message, what amounted to a full elaboration as to what he had meant in 1815 when speaking of a "defect of constitutional authority" that such a bill would represent. This veto message from the "Father of the Constitution" continues to contain invaluable messages and lessons that go all but forgotten by Americans today. It is high time to remind the American people of the true meaning of the Constitution rather than the false representations of it that emanate from the media, legal academia, and the federal judiciary, falsehoods and faulty assumptions that today go virtually unquestioned and undiscussed.

Madison began by telling the House of Representatives that "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, in which it originated." Why would Madison feel such an infrastucture bill violated the United States Constitution? He went on to explain that "[t]he 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, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States." In other words, Congress's powers are limited only to those listed in Article I, Section 8 of the Constitution. Simply put, because "internal improvements" is not on that list, such a bill is unconstitutional. Furthermore, it was not "necessary and proper" (Article I, Section 8, Clause 18) to any enumerated power because it could not be considered an incidental means to achieving any of those listed or constitutionally enumerated ends.

Many today would find this utterly perplexing. The immediate reaction would be to wonder why the Commerce Clause (Article I, Section 8, Clause 3) would not suffice to allow Congress to pass an infrastucture bill. The Commerce Clause provides Congress with "The power to regulate commerce among the several States." It is indisputable that according to faulty modern Supreme Court misinterpretations and perversions of the Constitution such a bill would be deemed by the federal judiciary to be clearly constitutional. The Supreme Court infamously declared in Wickard v. Filburn (1942) that any activity that "exerts a substantial economic effect on interstate commerce" is within Conress's power. The Supreme court has approved of Congress having virtually limitless powers under this single provision of the Constitution. As Justice Clarence Thomas stated in 1995, "Such a formulation of federal power is no test at all: it is a blank check." The fact is that President James Madison clearly stated that the Commerce Clause can not even "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" because that would require "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." To compare Madison's veto message to current Supreme Court jurisprudence and to federal statutes is to understand how drastically far away from the original Constitution our country has drifted.

Yet when the Commerce Clause fails, the Congress, with the approval of the Supreme Court, always moves to the General Welfare Clause (Article I, Section 8, Clause 1) to justify any bill it wishes to pass. The Clause allows Congress to tax "to provide for the common defense and general welfare." This is viewed as a limitless power because in 1936 in the case of United States v. Butler the Supreme Court perversely ruled that the General Welfare Clause "confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." In other words, the power of Congress to tax and spend is not limited to the list of specifically enumerated powers, but Congress can tax and spend as it pleases. The only limit on Congress is gaining the votes to pass any bill, because no Congress would ever claim to pass any bill for the specific detriment of the nation. However, the architect of the Constitution James Madison specifically rebutted this view in his 1817 veto message saying it "would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms 'common defense and general welfare' embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared [in Article VI] 'that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.'" By twisting the Constitution Congress would now have the force of its laws that are actually not within the grants of powers as provided in the Constitution being "supreme" above the more Constitutionally legitimate laws of the several States. It would render the idea of federalism enshrined in the Constitution meaningless, and completely undermine our entire Constitution itself. Further, this is not some newer or updated view of Madison in 1817 for political purposes, but more importantly this was what Madison had promised the opponents of the Constitution during the ratification debates in 1788. In Federalist No. 41 Madison specifically described the idea of the opponents of the Constitution that the General Welfare Clause "amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare" as "stooping to such a misconstruction... But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?... For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing, had not its origin with the latter." The Supreme Court would do well to fulfill its duty to uphold the Constitution by reading Federalist 41, a representation of James Madison during the actual ratification debates, rather than relying on United States v. Butler. In a letter Madison wrote in 1792 to Edmund Pendleton he declared that "[i]f Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction." Yet this "misconstruction" is precisely what stands as legitimate Supreme Court precedent today. Madison made clear that the general welfare clause could not be used even for "internal improvements" such as providing funding for building public roads, let alone the plethora of behemoth social and welfare programs, the profligate and limitless spending, that that the Clause according to the Supreme Court justifies today.

Madison continued in his veto message expounding on the original veiw of the Constitution saying, "Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision." In other words, the federal judiciary is tasked with making sure the federal government does not expand endlessly beyond its granted powers and invade the reserved powers of the people and the states (as per the Ninth and Tenth Amendment). As Justice Clarence Thomas stated in his dissent in Gonazalez v. Raich in 2005, "One searches the [Supreme] Court’s opinion in vain for any hint of what aspect of American life is reserved to the States." This misinterpretation of the Constitution puts the question of virtually all Congressional legislation out of the reach of any meaningful review by the federal judiciary. It creates, in the actual yet twisted parlance of the modern Supreme Court, a "presumption of Constitutionality" when it comes to adjudicating whether an act of Congress falls within the enumerated powers. As Madison clearly stated in his Bonus Bill veto message, "A restriction of the power 'to provide for the common defense and general welfare' to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution." In other words, if such wrongheaded Constitutional interpretations were to be accepted as they are today, the federal government could in no way still be the limited government of enumerated powers it was intended to be by the framers and ratifiers of the Constitution.

What then could the nation do if it felt it was prudent as a matter of public policy to allow for internal improvements? To Madison, the answer was provided only in Article V of the Constitution. The Constitution would have to be amended to allow for a measure that Madison himself as a matter of public policy actually supported. This may seem perplexing to some, because as Supreme Court Justice Hugo Black famously said, "The layman's constitutional view is that what he likes is constitutional and that which he doesn't like is unconstitutional." I would add that Supreme Court Justices all too often fall prey to this constitutional view as well. But matters of public policy, and matters of Constitutionality are not one and the same and cannot be confounded. Regardless of whether a policy is considered needed or unnecessary, we must always independently ask whether the Constitution permits it. Madison even stated, "I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity." As a matter of the merits of the bill without taking Constitutional issues into account, he vocally supported the measure. But issues of Constitutionality cannot be confused with issues of wise or unwise policy. As Justice Potter Stewart correctly and famously wrote in dissent, the Supreme Court is not asked "to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution." Should a seemingly wise piece of legislation not fall within the powers of Congress, the Constitution had to be amended or else the Constitution itself would be as worthless as the paper it was written on. It would be making a mockery of the rule of law, our nation's Basic Law, and of the very reason the Constitution was written in the first place, that being to delineate the power of the federal government. "But seeing that such a power is not expressly given by the Constitution," Madison continued in his veto message, "and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest [i.e., the Amendment process of Article V]."

The Bonus Bill veto message should be required reading in every American classroom. Its brevity and simplicity in teaching basic Constitutional principles makes its lessons easily comprehensible to all. Yet what many would learn would make any sensible person understand that much of the federal government's acts are based on Constitutionally dubious, incoherent, and sometimes deliberately misleading grounds. Madison's message further exposes the modern Supreme Court as having abandoned its role of faithfully applying the Constitution. It specifically shows in clear terms that the two most looked to provisions today to justify practically all Congressional legislation, the Commerce Clause and General Welfare Clause, actually have much narrower meanings that could not even encompass federal spending on infrastructure without a Constitutional Amendment, let alone the array of domestic programs, departments, regulations, and pieces of legislation, that are a product of the modern federal government. The Father of the Constitution left a message for posterity to his nation stating that the Constitution cannot simply be "interpreted" to meet a current policy preference or need, but the provisions must be looked to as originally understood. Even if legislation represents sound policy, even if a bill has support, it must be seriously Constitutionally vetted, and this means more than looking to faulty Supreme Court precedent or reliance on federal courts. And conversely, if legislation is unpopular or even stupid, it cannot be overturned by the Courts unless it falls outside the powers of government.

What is most fascinating and pertinent about this veto message is that "internal improvements" could be replaced with countless examples of modern Congressional legislation, and Madison's responses in his veto message would still be virtually unchanged. It is our duty to make sure that they do not continue to go unheeded.

We have deviated SO FAR from the original intent of the Constitution that I believe that even if Sarah, Michelle or Cain were elected and served 8 year terms with both houses controlled by Repubs, the failure to understand how severely the Constitution limits government is so pervasive even among so-called conservatives that there is no way to recover truly constitutional government.

The Constitution would have to be taught in its full breadth and truth starting in elementary school through college to a whole generation....and that ain’t gonna happen.

Marxism is being taught and thought almost everywhere and even a great president can’t reverse that.

We continue to drift closer and closer to the day when we’ll need to tear it all down and reboot the Constitution, or write a new one.

Both options are ugly and dangerous.

The way things are going now, we don’t have a Constitution in effect to “limit” the reach of government. Madison would no longer recognize the nation he left us. And it gets worse with each passing day. (New EPA regulations, anyone?)

This cannot end well.

Being quite familiar with Madison's positions on this and other issues, I can only say, "Of course this was the original intent" But it doesn't matter. That won't change a thing. Modern jurisprudence relies on judicial precedence, and there have been far too many precedents stacked up supporting clearly incorrect interpretations of pretty much every sentence in the Constitution for motives of political power, rather than striving for an honest interpretation of law.

Also, Madison and other Jeffersonian Republicans did not expect that their fledgling Republic could survive indefinitely... it was commonly accepted then that normal course of nature for the advanced civilization to decay over time due to the influence of overpopulation, mercantilism, and populism run amok-- It required a virtuous economically self-sufficient citizenry to sustain a constitutional Republic; men with a spirit of independent self-reliance, Christian values, intelligence, and diligence in all endeavors. They saw the best way of maintaining this citizen base as through an agrarian ideal, and crafted legislation to support this ideal. They wanted to build a nation of independent, hardy, land-owners, with a common political philosophy and unified culture (like the Boers of S.A.). Perhaps they were right, but they were unsuccessful...

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