Federalists

• Author: Lance Banning
• Pages: 1015-1017

Page 1015

Arguments about the meaning of the Constitution can be dated to the controversy over its adoption or to the congressional debates of 1789 about the power to remove subordinate executive officials. But not until the conflict over ALEXANDER HAMILTON'S proposal to create a BANK OF THE UNITED STATES did these disputes assume a partisan configuration and begin to take the form of two conflicting modes of CONSTITUTIONAL INTERPRETATION. When Hamilton's proposal came before the HOUSE OF REPRESENTATIVES in February 1791, Congressman JAMES MADISON remembered that the CONSTITUTIONAL CONVENTION OF 1787 had specifically declined to add the right to charter CORPORATIONS to the list of Congress's powers. Madison contended that incorporation of a bank was not an exercise of any of the delegated powers and could not be justified on other grounds without confiding an "unlimited discretion" to a limited regime and threatening its gradual transmutation into a unitary national system. Disturbed by Madison's objections, President GEORGE WASHINGTON requested the opinions of his principal advisers before he signed the bill. EDMUND RANDOLPH and Secretary of State THOMAS JEFFERSON agreed with their Virginia friend. Elaborating Madison's insistence that to step beyond the constitutional enumeration was "to take possession of a boundless field of power, no longer susceptible of any definition," Jefferson maintained that the incorporation of a bank was not a regulation of the nation's commerce, not a tax, and not a borrowing of money. To derive the power from the "general phrases," he continued, would render the enumeration useless, reduce the Constitution "to a single phrase," and, in practice, authorize the federal government to do anything it pleased.

Hamilton's rebuttal of his colleagues, which persuaded Washington to sign the bill, erected the essential framework for the BROAD CONSTRUCTION of the document that would prevail throughout the 1790s. In fact, the reasoning and phrasing of this great opinion would be closely followed by JOHN MARSHALL in MCCULLOCH V. MARYLAND in 1819. "If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution," Hamilton maintained, "it may safely be deemed to come within the compass of the national authority." Insisting that the Constitution's grant of sovereign powers necessarily implied a power to decide which means were most appropriate to federal ends, the secretary of the treasury rejected Jefferson's contention that the boundaries of federal power would be washed away if " NECESSARY AND PROPER " was construed to mean "convenient," "useful," "requisite," and "needful." A liberal interpretation of this phrase was vital, he observed, to an effective federal system: "The means by which national exigencies are to be provided for ? are of such infinite variety, extent, and complexity that there must, of necessity, be great latitude of discretion in the selection and application of those means."

Hamilton's opinion on the national bank began with the assumption "that every power vested in a government is in its nature sovereign, and includes ? a right to employ all the means requisite and fairly applicable to the attainment of the ends." It was not to be denied, the secretary argued...