John C. Eastman
March 2, 2017
onald Trump fashions himself a populist, anti-establishment President in the mold of Andrew Jackson. Some key advisors have made the comparison directly. Rudy Giuliani, for example, has claimed that Trump’s win last November was “like Andrew Jackson’s victory. It was the people beating the establishment.” In his first speech before a joint session of Congress, tones of Jacksonian populism resonated in the President’s calls for a more accountable, less burdensome central government, a return of authority to the people, and a restoration of constitutional limits on the powers of the central government.
But Trump also called for one trillion dollars in new infrastructure spending, and here the analogy to Andrew Jackson falls spectacularly apart. One of the central issues in the presidential campaign of 1828, in which Jackson defeated sitting President John Quincy Adams, was the authority of the central government to spend money for “internal improvements.” Contrary to popular belief, the authority conferred on the central government to spend money is not absolute, but is limited to “the common defense and the general welfare.” (U.S. Const., Art. I, § 8, cl. 1, emphasis added). Indeed, the constitutional convention of 1787 specifically rejected a proposal to give Congress the power to fund internal improvements. Local welfare, like the widening of a street in town, was therefore not considered to be part of the “general,” or national, welfare. Neither was funding of local police departments thought to be part of the “common” defense.
In the 1790s, the first Congresses constrained themselves on this score, voting against bills, for example, that would have provided a “bounty” (what we would today call a “bail-out”) to New England cod fisherman struggling through a recession, or provided seed-money loans to glass manufacturers (a stimulus), because such were viewed as an unconstitutional support for the local rather than general welfare. As one member of Congress put it so presciently: “Establish the doctrine of bounties, . . . and it is not a few fishermen that will enter, claiming ten or twelve thousand dollars, but all manner of persons — people of every trade and occupation —may enter in at the breach, until they have eaten up the bread of our children.”
The temptation for members of Congress to bring the bacon home to their constituents quickly proved too great, however, so the task of enforcing the Constitution’s limits on federal spending fell to the veto pens of the early Presidents. Presidents Jefferson, Madison, and Monroe all adhered to the view that spending for purely local internal improvements was not within the authority of the federal government. In an 1822 message to Congress vetoing an internal improvements bill, President Monroe reminded Congress that its power to spend was restricted “to purposes of common defense, and of general, not local, national, not state, benefit.”
But in his final year in office, Monroe opened the door ever so slightly for spending on internal improvements, and his successor, President John Quincy Adams, joined with Congress in unleashing a federal spending frenzy that cost him his re-election. As President Polk would later contend, “the floodgates being thus hoisted, . . . applications for aid from the treasury, virtually to make harbors as well as improve them, clear out rivers, cut canals, and construct roads, poured into Congress in torrents, until arrested by the veto of President Jackson.”
Jackson put to rest what he described as “this dangerous doctrine” that would allow the federal government to spend for local projects. He vetoed as unconstitutional bills appropriating upwards of two hundred million dollars to purchase stock in the Maysville and Lexington Turnpike Company and for the direct construction of other “ordinary” roads and canals by the Government itself. So strong was his veto message that for four years Congress did not even try to pass another such bill. When, in 1834, Congress passed an Act to improve the navigation of the Wabash River, Jackson again responded forcefully with a veto message in which he argued against the great danger of unconstitutional acts that “proffer local advantage.” He described as a “fallacy” the claim that the power to spend for the “general welfare” was a power to spend for anything that Congress thought would benefit the people, a fallacy which he believed threatened to destroy the carefully-balanced division of power between the federal government, on the one hand, and the state and local governments, on the other.
President Trump’s pitch for one trillion dollars in new infrastructure spending simply cannot be squared with his Jacksonian predecessor no matter how “popular” the spending plan might be. At least, not if it is to be paid for out of the federal treasury. But there have been some hints that perhaps President Trump understands the constitutional limitations here better than most. He has spoken of tax incentives to encourage infrastructure spending, for example, and of public-private partnerships. If the “public” part of those partnerships are state and local governments instead of the federal government, Trump will be honoring the full Jacksonian legacy, not just the populist uprising part.
One big problem stands in the way, of course. The federal government has grown so large, and its demands on the tax base so significant, that the state and local governments are hard pressed to keep up with necessary infrastructure spending on their own. The federal government has effectively sucked much of the tax oxygen out of the room. But there are two alternative ways to deal with this problem, one unconstitutional (on Jacksonian terms), the other constitutional. The unconstitutional route is for the federal government to simply continue to make massive spending on local infrastructure out of the federal treasury and ignore the constitutional limitations on its powers. The constitutional route is for the federal government to provide incentives for state infrastructure spending by using constitutional means at its disposal. One such plan might allow individual taxpayers to claim as a credit against their federal income tax any state tax designed to provide funds for local infrastructure projects. Better than block grants to the states, which don’t solve the problem of unconstitutional spending at all, such a plan would reduce the federal tax bite and restore the ability of the states to handle their own local infrastructure spending, setting their own priorities and balancing them against the burdens to taxpayers. If President Trump truly wants to emulate President Jackson—the real, complete one—he and his advisors should be exploring how to make his trillion dollar investment in infrastructure one that comports with the Constitution as well.