Can the congress create a national bank? Or build canals?

Jefferson vs. Hamilton on the constitutionality of the national bank

There is the constitution we have, the constitution we pretend we have, and the constitution we would rather have.

This post is concerned with the one we have.

Purely academic, then?

Well, sort of.

The excerpt of Jefferson at the above link is the more meaty and interesting.

In it, he seems to reduce to nothing both the general welfare clause and the necessary and proper clause in the constitutional enumeration of congressional powers, though in the quote exemplifying his position Hamilton relies only on the latter and does not mention the former.

Personally, I think he is right both times and is right about the main question regarding establishment of a bank.

However, his argument against construing the former as a distinct grant of power to provide for the general welfare is mistaken – or perhaps only revealing and interesting – in that it utterly ignores any role for the Supremes in determining whether something congress might do under this provision really does or does not provide for the general welfare.

But this is 1791, and John Marshall will not put the world on notice of the Supremes’ power of judicial review of federal acts until 1803, in Marbury vs. Madison, basing it as he will on smoke, mirrors, and invisible ink, during Jefferson’s own presidency.

Jefferson also points out that the conventioneers at Philadelphia had considered and rejected the idea the congress ought to have power to erect canals and to create corporations for the reason that this would enable them to create a bank and that idea was politically anathema.

He takes this to be an argument for refusing to suppose congress can create a bank “as a means” to doing something congress is expressly authorized to do, viz. collect taxes, given the conventioneers rejected allowing congress to do this “as an end.”

Too, against Hamilton he urges a restrained interpretation of the necessary and proper clause, insisting that “necessary” means exactly what we think and not “convenient” or “useful,” Hamilton urging the contrary.

Anyway, here are the relevant portions of Article I, Section 8, whose meaning is disputed.

Powers of Congress

The constitution quotes them thus:

1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

. . . . .

18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I think in 1 the only power the constitution grants is a fairly circumscribed power to lay and collect taxes to pay the debts of the US.

I think the actual meaning of the rest of 1 is best understood as equivalent to “and provide for the common defense and general welfare of the United States through the exercise of the powers specified hereinafter and elsewhere in this constitution.”

I think 18 merely emphasizes that congress can do whatever it needs to do to carry into execution its powers otherwise specified – which we no doubt would and should have surmised, anyway.

Here as elsewhere, the penalty for rhetorical flourish is often misunderstanding.

People sometimes say the point of having a written constitution is to ensure everyone understands what the government erected by it is empowered to do and what limits are imposed upon its doing of it.

Hence, they say, the requirement that a constitution be clear, precise, unambiguous, and not at all vague in its language.

Others also say the point of judicial review is to enable the judiciary to force the other branches to live within constitutional limits.

And life tenure, they think, is essential to enabling judges to perform this function honestly and with integrity.

Amusing, all this naiveté, no?

PS.

In Federalist 10, Madison is quite clear he understands the un-amended constitution to give the federal government no power to create or issue paper money, and to deny such power to the states.

Issuance of paper money, he says, is one of the zany disorders prompted by faction that the constitution whose ratification he is urging will rule out.

Federalist 10

He is right, I think.

About the constitution ruling out paper money, I mean.

Not about it being a bad thing.

And I am not aware of anything in any amendment that changed this.

PS.

Considering the nearly monarchist views and nationalist proposals Hamilton advocated at the convention, I don't think he is much to be trusted regarding what its ultimate product actually does provide.