JEFFERSON vs. HAMILTON on the CONSTITUTIONALITY of the NATIONAL BANK
The dispute over the constitutionality of the Bank of the United States led to the classical statements of strict and loose construction of the Constitution by Jefferson and Hamilton. Jefferson, who questioned the constitutionality of the Bank of the United States was asked by Washington to provide a formal statement regarding the constitutionality of the bill. After receiving statements from Jefferson and from Attorney-General Edmund Randolph, Washington asked Hamilton to respond to these arguments against his bank bill. Hamilton then wrote the classic defense of loose construction.
Hamilton Argues for the
Constitutionality of the National Bank
February 15, 1791
The Secretary of the Treasury having perused with attention the papers containing the opinions of the Secretary of State and the Attorney-General, concerning the constitutionality of the bill for establishing a national bank, proceeds, according to the order of the President, to submit the reasons which have induced him to entertain a different opinion.
Though this mode of reasoning respecting the right of employing all the means requisite to the execution of the specified powers of the government, it is to be objected, that none but necessary and proper means are to be employed; and the Secretary of State maintains, that no means are to be considered necessary but those without which the grant of the power would be nugatory . . .
It is essential to the being of the national government, that so erroneous a conception of the meaning of the word necessary should be exploded.
It is certain, that neither the grammatical nor popular sense of the term requires that construction. According to both, necessary often means no more than needful, requisite, incidental, useful, or conducive to. . . . And it is the true one in which it is to be understood as used in the Constitution. . . .
To understand the word as the Secretary of State does, would be to depart from its obvious and popular sense, and to give it a restrictive operation, an idea never before entertained. It would be to give it the same force as if the word absolutely or indispensably had been prefixed to it. . . .
The degree in which a measure is necessary can never be a test of the legal right to adopt it; that must be a matter of opinion, and can only be a test of expediency. . . .
This restrictive interpretation of the word necessary is also contrary to this sound maxim of construction; namely, that the powers contained in a constitution of government, especially those which concern the general administration of the affairs of a country , its finances, trade, defense &c., ought to be construed liberally in advancement of the public good... The means by which national exigencies are to be provided for, national inconveniences obviated, national prosperity promoted, 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. . . .
It leaves, therefore, a criterion of what is constitutional, and of what is not so. This criterion of what is constitutional, and of what is not so. This criterion is the end, to which the measure relates as a means. 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, it may safely be deemed to come within the compass of the national authority. . . .
A hope is entertained that it has, by this time, been made to appear, to the satisfaction of the President, that a bank has a natural relation to the power of collection taxes-to that of regulation trade-to that of providing for the common defence-and that, as the bill under consideration contemplates the government tin the light of a joint provision of the clause of the Constitution which immediately respects the property of the United States.
Under a conviction that such a relation subsists, the Secretary of the Treasury, with all deference, conceives, that it will result as a necessary consequence from the position, that all the specified powers of government are sovereign, as to the proper objects; that the incorporation of a bank is a constitutional measure; and that the objections taken to the bill, in this respect, are ill-founded. . . .
Jefferson Argues Against the Constitutionality of a National Bank, February 23, 1791
I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people." To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution.
I. They are not among the powers specially enumerated; for these are
1st. A power to lay taxes for the purpose of paying debts of the United
States; but no debt is paid by this bill, nor any tax laid.
2d. "to borrow money." But this bill neither borrows money nor ensures the borrowing it. . . .
3. To "regulate commerce with foreign nations, and among the States with the Indian tribes." To erect a bank, and to regulate commerce, are very different acts. . . .
II. Nor are they within either of the general phrases, which are the two following:
1. To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare." For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts provide for the welfare of the Union.. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.
It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.
It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the Instrument, and not that which would render all others useless. . . . It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.
2. The second general phrase is, "to make all laws necessary and proper for carrying into execution the enumerated powers." But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase.
It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true; yet the Constitution allows only the means which are "necessary," not those which are merely convenient" for effecting the enumerated powers. If such a latitude of Construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to someone of so long a list of enumerated powers. . . .