The Framers drafted the Constitution to grant Congress some powers to construct infrastructure. For example, the Commerce Clause, as originally understood, grants authority to construct facilities for navigation such as dockyards and ports—including, presumably, airports. Authority to maintain the military enables Congress to fund military facilities. Article I, Section 1, Clause 8 empowers Congress to “establish Post Offices and post Roads.”
As explained in my book, The Original Constitution, the power to establish post roads is often misunderstood. The word “establish” is not limited to designating existing roads, as some have claimed; it does include construction as well. On the other hand, the phrase “post Roads” does not include all roads, nor does it refer to roads over which the mail is carried.
In 18th century discourse a “post road” was a trunk highway marked by stages or “posts” featuring facilities for travelers—lodging, transportation, and food for man and beast. The modern equivalent is the interstate highway. In other words, Congress had authority to build the interstate highway system. But the construction of other roads and of ground transportation facilities was reserved to the states. The debates over the Constitution’s ratification amply confirm these conclusions.
In this area as in so many others, Congress has disregarded constitutional limits—and in this area, as in so many others, with lousy results.
In an article appearing in the Dec. 8, 2013 Denver Post, Independence Institute Senior Fellow Dennis Polhill reveals some of the fearsome waste in unconstitutional infrastructure spending. When the feds finished the interstate highway system around 1982, he explains, Congress broke an earlier promise to end the gas tax that funded the system. It kept the tax in place, but diverted the revenue to a mass of pork barrel projects. Congress continues to do this today. These oinkers often have little real value, but they fill the political-campaign troughs for members of Congress.
Washington, D.C. hogs much of the revenue from gasoline taxes: States get back less than 70% of the gas tax money their citizens pay to Washington, D.C., and that less-than-70% they do give back is laced with pig feed—waste that local folks would have more sense than to fund.
There are additional interesting facts reported in the Polhill article. You can read here.
Former University of Montana professor of constitutional law Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute, a free market think tank in Denver.
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