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above; these being very remote from the incorporation of a bank. Nor can it be imagined, that it is intended to reach the emission of paper money. What construction remains, by which to regulate commerce can increase the medium? Only the emission of coin, which is licenced in terms by another clause.
To dispose of, or to regulate property, even bank stock itself, is utterly distinct from the incorporation of a bank; for the contributions on which the bank-stock arises, go upon the principle, that a bank already exists; how else can contributions be made to it?
But, in truth, the serious alarm is in the concentered force of these sentiments. If the laying and collecting of taxes brings with it every thing, which, in the opinion of Congress, may facilitate the payment of taxes: if to borrow money sets political speculation loose, to conceive what may create an ability to lend: if to regulate commerce, is to range in the boundless mazes of projects for the apparently best scheme to invite from abroad, or to diffuse at home the precious metals: if to dispose of, or to regulate property of the United States, is to incorporate a bank, that stock may be subscribed to it by them; it may without exaggeration be affirmed, that a similar construction on every specified federal power will stretch the arm of Congress into the whole circle of State Legislation.
The general qualities of the federal government, independent of the Constitution, and the specified powers, being thus insufficient to uphold the incorporation of a bank; we come to the last enquiry, which has been already anticipated, whether it be sanctified by the power to make all Laws which shall be necessary and proper for carrying into execution the powers, vested by the Constitution. To be necessary is to be incidental, or in other words may be denominated the natural means of executing a power.
The phrase, "and proper," if it has any meaning, does not enlarge the powers of Congress, but rather restricts them. For no power is to be assumed under the general clause, but such as is not only necessary but proper, or perhaps expedient also: but, as the friends to the bill ought not to claim any advantage from this clause, so ought not the enemies to it, to quote the clause as having a restrictive effect: both ought to consider it, as among the surplusage, which as often proceeds from inattention, as caution.
However, let it be propounded as an eternal question to those, who build new powers on this clause, whether the latitude of construction which they arrogate, will not terminate in an unlimitted power in Congress?
In every aspect therefore under which the attorney general can view the act, so far as it incorporates the bank, he is bound to declare his opinion to be against its constitutionality.
(Signed) EDM. RANDOLPH, February 12th, 1791.
The attorney general, holding it to be his duty to address to the President of the United States, as the grounds of an official opinion, no arguments, the truth of which he does not acknowledge; has reserved for this paper several topics, which have more or less influenced
the friends & enemies of the bank-bill; and which ought therefore to be communicated to the President.
1. The enemies of the bill have contended, that a rule of construction, adverse to the power of incorporation, springs out of the constitution, itself; that after the grant of certain powers to Congress, the Constitution, as if cautious, against usurpation, specially grants several other powers, more akin to those before given, than the incorporation of a bank is to any of those, from which it is deduced.
This position they say, has been exemplified in four instances:
1. A Power is given to regulate commerce; and yet is added a power to establish uniform laws on the subject of Bankruptcies throughout the United States: to fix the standard of weights & measures; and to establish post offices and post roads.
2. A Power is given to coin money; and yet is added a power to regulate the value thereof and of foreign coin; and to provide for the punishment of conterfeiting the current coin of the United States.
3. A Power is given to declare war; & yet is added a power to grant letters of marque and reprisal: to make rules concerning captures on land & water; to raise & support armies; to provide & maintain a Navy; and to make rules for the government & regulation of the Land & naval forces.
4. A Power is given to provide for calling forth the militia, to execute the Laws of the Union; and yet is added a power to call them forth to suppress insurrections.
Whosoever will attentively inspect the Constitution, will readily perceive the force of what is expressed in the letter of the convention; "That the Constitution was the result of a spirit of amity, and mutual deference & concessión." To argue, then, from its Style or arrangement, as being logically exact, is perhaps a scheme of reasoning not absolutely precise.
But if the Constitution were ever so perfect, considered even as a composition, the difficulties, which the above Doctrine has started may be solved by the following remarks.
These similar powers, on which stress is laid, are either incidental, or substantive, that is, independent powers.
If they be incidental powers, and the conclusion be, that because some incidental powers are expressed, no others are admissible; it would not only be contrary to the common forms of construction, but would reduce the present Congress to the feebleness of the old one, which could exercise no powers, not expressly delegated. So that the advocates for the power of incorporation on the principle of incidentality to some specified power, would, notwithstanding this supposed rule of interpretation, be as much at liberty to insist on its being an incidental power as ever.
If these similar powers be substantive and independant (as on many occasions they are, that is, as they can be conceived to be capable of being used, independently of what is called the principal power) it ought not to be inferred, that they were inserted for any other purpose, than to bestow an independent power, where it would not otherwise have existed.
The only remaining signification, which the Doctrine now controverted can have, is, that the incorporation of a bank being more
wide from a connection with the specified powers of legislation, than the additional ones were from the principal powers, to which they were supposed to belong; the power of incorporation being omitted, or rather not specially mentioned, cannot be assumed. Even this answer is not adequate to those, who derive the power of incorporation from the nature of the federal government.
Hence the rule contended for by the enemies of the bill is defective every way. It would be still more so with respect to those (if any such there be), who construe the words, "necessary and proper," so as to embrace every expedient power.
2. An appeal has been also made by the enemies of the bill, to what passed in the federal convention on this subject. But ought not the Constitution to be decided on by the import of its own expressions? What may not be the consequence, if an almost unknown history should govern the construction?
3. The opinions too of several respectable characters have been cited, as delivered in the State conventions. As these have no authoritative influence; so ought it to be remembered, that observations were uttered by the advocates of the Constitution, before its adoption, to which they will not, and in many cases, ought not to adhere.
4. On the other hand the friends to the bill have relied on the Congressional Acts as to Westpoint, the Government of the Western Territory, and the power of removal from office, given to the President.
The two first are within express powers, as will occur, by adverting to the power to exercise authority over places purchased for forts &c; and to the power to dispose of, and make needful rules and regulations respecting the property of the United States: the last is a point with a great weight of reason on each side. If it be founded on the general nature of executive authority, the power is probably not tenable, without resorting to the Doctrines of the friends to the Bill. But it appears to be a power not specially given to any person (except on an impeachment) and may therefore incidentally belong to Congress to confer on the President: however if this step be an error, it is never too late to correct it.
5. It has been also pretended, that even the infirm old Congress incorporated a bank; and can a less power be presumed to be vested in the federal government, which has been formed to remedy their weakness? This argument is so indefinite; the time of the incorporation was so pressing and the States had such an unlimitted command over Congress and their acts, that the public acquiescence ought not to be the basis of such a power under the present circumstances. 6. Congress it is farther said, may provide for the general welfare, and this includes the power of incorporation: but they are to provide for the general welfare in laying & collecting taxes. Is the incorporation of a bank a tax bill? The meaning of the power taken together, seems to be, that Congress may lay taxes for the purpose of expending money for the public welfare, even to subscribe it to a bank. But is this like the creation of bank? It implies that a bank has been already created.
7. It has been also asserted, that Congress have an exclusive legislation at the seat of government. This will not be true, until they go to the place of the permanent residence.
The attorney general has not collected any other information upon this subject; altho' more may perhaps have been said by the partizans for & against the Bank than is here noticed.
(Signed) EDM. RANDOLPH,
Feby. 12th, 1791.
Opinion on Constitutionality of a National Bank
THOMAS JEFFERSON, SECRETARY OF STATE, TO PRESIDENT WASHINGTON [Source: Paul Leicester Ford, The Writings of Thomas Jefferson, Vol. 5, pp. 284-289]
February 15, 1791.
The bill for establishing a National Bank undertakes among other things:
1. To form the subscribers into a corporation.
2. To enable them in their corporate capacities to receive grants of land; and so far is against the laws of Mortmain.1
3. To make alien subscribers capable of holding lands; and so far is against the laws of Alienage.
4. To transmit these lands, on the death of a proprietor, to a certain line of successors; and so far changes the course of Descents.
5. To put the lands out of the reach of forfeiture or escheat; and so far is against the laws of Forfeiture and Escheat.
6. To transmit personal chattels to successors in a certain line; and so far is against the laws of Distribution.
7. To give them the sole and exclusive right of banking under the national authority; and so far is against the laws of Monopoly.
8. To communicate to them a power to make laws paramount to the laws of the States: for so they must be construed, to protect the institution from the control of the State legislatures; and so, probably, they will be construed.
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." [XIIth amendment.] 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 the debts of the United States; but no debt is paid by this bill, nor any tax laid. Were it a bill to raise money, its origination in the Senate would condemn it by the Constitution.
2d. "To borrow money." But this bill neither borrows money nor ensures the borrowing it. The proprietors of the bank will be just as
1 Though the Constitution controls the laws of Mortmain so far as to permit Congress itself to hold land for certain purposes, yet not so far as to permit them to communicate a similar right to other corporate bodies.-T. J.
free as any other money holders, to lend or not to lend their money to the public. The operation proposed in the bill, first, to lend them two millions, and then to borrow them back again, cannot change the nature of the latter act, which will still be a payment, and not a loan, call it by what name you please.
3. To "regulate commerce with foreign nations, and among the States, and with the Indian tribes." To erect a bank, and to regulate commerce, are very different acts. He who erects a bank, creates a subject of commerce in its bills; so does he who makes a bushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulates commerce thereby. To make a thing which may be bought and sold, is not to prescribe regulations for buying and selling. Besides, if this was an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every State, as to its external. For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes. Accordingly the bill does not propose the measure as a regulation of trade, but as "productive of considerable advantages to trade." Still less are these powers covered by any other of the special enumerations.
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 or 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 the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. 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