The following is a more accessble plain text extract of the PDF sample above, taken from our Constitutional Law I Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
The Bank Controversy - Implied and Inherent Powers
James Madison's View (pg. 28)
Madison's Rules of Interpretation:
(1) An interpretation that destroys the very characteristic of the Government cannot be just.
(2) Where the meaning is clear, the consequences, whatever they may be, are to be admitted - where doubtful, it is fairly triable by its consequences.
(3) In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide.
(4) Contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties.
(5) In admitting or rejecting a constructive authority, not only the degree of its incidentality to an express authority is to be regarded, but the degree of its importance also; since on this will depend the probability or improbability of its being left to construction.
Arguments Against the Bank:
(1) Slippery slope argument
If you admit the existence of this power, the logic and reasoning leads to the conclusion that there is no power that is precluded.
"The essential characteristic of the Government, as composed of limited and enumerated powers, would be destroyed, if instead of direct and incidental means, any means could be used, which, in the language of the preamble to the bill, 'might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans.'" (pg. 30)
"If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of the political economy." (pg. 30)
(2) Everyone understood the federal government to be one of limited and enumerated powers.
There was reliance on that understanding that the federal government was to be one of limited and enumerated powers.
(3) If the necessary and proper clause is to be read so broadly, why would all the other powers have been enumerated?
"The clause is in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and, as it were, technical means of executing those powers."
(4) The incorporation of a bank is such a large and important power that it would not have been missed or forgotten by the framers.
This is too big of deal to be implied.
This is such a major power, it needs to be express; an amendment is needed.
This would not have escaped the framers' attention if they intended it to be a power.
It appeared on the whole, Madison concluded, that the power exercised by the bill (1) was condemned by the silence of the constitution; (2) was condemned by the rule of interpretation arising out of the constitution; (3) was condemned by its tendency to destroy the main characteristic of the constitution; (4) was condemned by the expositions of the friends of the constitution; (5) was condemned by the apparent intention of the parties which ratified the constitution; (6) was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and that Madison hoped the bill would receive its final condemnation by the vote of the house.
Attorney General Edmund Randolph's View (pg. 32)
Randolph makes a similar slippery slope argument as Madison.
"To be implied in the nature of the federal government would beget a doctrine so indefinite as to grasp every power."
However, in contrast to Madison, Randolph felt that the "and proper" portion of the necessary and proper clause did not enlarge the powers of the Congress but rather restricted them.
Thomas Jefferson's View (pg. 33)
Thomas Jefferson also employed the slippery slope argument.
"To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition."
Also, he discusses the definition of "necessary."
"[T]he Constitution allows only the means which are 'necessary,' not those which are merely 'convenient' for effecting the enumerated powers."
If such a latitude of meaning is adopted, that necessary and proper clause "would swallow up all the delegated powers, and reduce the whole to one power . . . ."
Alexander Hamilton's View (pg. 34)
"[T]his general principle is inherent in the very definition of Government and essential to every step of the progress to be made by that of the United States; namely - that every power vested in a Government is in its nature sovereign, and it includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions & exemptions specified in the constitution; or not immoral, or not contrary to the essential ends of political society.
The Constitution provides various ends. See Art. I, § 8.
The national government is able to use the most appropriate means to reach those ends.
You cannot look at the situation in the abstract.
It is an incidence of sovereignty to be able to erect a corporation
The incorporation of a bank is merely a means; it is not an end in and of itself.
You cannot just incorporate any corporation.
Limiting Principle: Whether the ends are legitimate and enumerated in the Constitution.
Definition of "necessary"
Often times "necessary" means "no more than needful, requisite, incidental, useful, or conducive to.
Moreover, the practice of the government is already contrary to the rule of construction advocated by Jefferson, et al.
"Of this the act concerning light houses, beacons, buoys & public piers, is a decisive example. This doubtless must be referred to the power of regulating trade, and it is fairly relative to it. But it cannot be affirmed, that the exercise of that power, in this instance, was strictly necessary; or that the power itself would be nugatory without that of regulating establishments of this nature." (pp. 35-36)
The restrictive interpretation of "necessary" is also contrary to the maxim of construction that "the powers contained in a constitution of government, especially those which concern the general administration of the affairs of the country, its finances, trade, defence & ought to be construed liberally, in advancement of the public good." (pg. 36)
A Criterion of What is Constitutional - TEST
(1) If the end be clearly comprehended within any of the specified powers, and
(2) If the measure have an obvious relation to that end, and
(3) The measure is not forbidden by any particular provision of the Constitution -
The measure may safely be deemed to come within the compass of the national authority.
Hamilton applies the above test and finds that the incorporation of the bank is related to (1) collecting taxes, (2) borrowing money, and (3) regulating interstate commerce.
The Second Bank
The First Bank of the United Bank Bill was passed by both houses and signed by the President.
When the 20-year charter expired in 1811, the Congress refused to renew.
Originally, when it was passed the first time, Madison vetoed the Bill.
In 1816, the Second Bank Bill was ultimately signed by President Madison.
M'Culloch v. Maryland - Part I (pp. 38-62)
Issue: Whether the Congress has the power to incorporate a bank.
NOTE: The necessary and proper clause is not even mentioned in the first 21 paragraphs.
The Court starts with a presumption in favor of constitutionality.
"It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation."
"The power now contested was exercised by the first congress elected under the present constitution." M'Culloch v. Maryland (pg. 39)
"The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first, in the fair and open field of debate, and afterwards, in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law." M'Culloch v. Maryland (pg. 39)
"The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law." M'Culloch v. Maryland (pg. 39)
"It would require no ordinary share of intrepidity, to assert that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave no countenance. These observations belong to the cause; but they are not made under the impression, that, were the question entirely new, the law would be found irreconcilable with the constitution." M'Culloch v. Maryland (pg. 39)
[An "implied" power is one linked to the textually assigned powers and serve as a means to the great ends spelled out in the text. - pg. 62]
M'Culloch is the canonical example of the Court's willingness to discern implied powers of Congress beyond those specified in the text.
"The government of the Union . . . is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." M'Culloch v. Maryland (pg. 42)
"[T]he government of the Union, though limited in its powers, is supreme within its sphere of action." M'Culloch v. Maryland (pg. 42)
"'[T]his constitution, and the laws of the United States, which shall be made in pursuance thereof,' 'shall be the supreme law of the land . . . .'" M'Culloch v. Maryland (pg. 42)
"Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described." M'Culloch v. Maryland (pp. 42-43)
"Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only, that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument." M'Culloch v. Maryland (pg. 43)
"In considering this question, then, we must never forget, that it is a constitution we are expounding." M'Culloch v. Maryland (pg. 43)
"[A]mong the enumerated powers of government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies." M'Culloch v. Maryland (pg. 43)
"But it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution." M'Culloch v. Maryland (pg. 43)
"The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means." M'Culloch v. Maryland (pg. 43)
"Can we adopt [a] construction (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means?" M'Culloch v. Maryland (pg. 43)
The Constitution "does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential, to the beneficial exercise of those powers." M'Culloch v. Maryland (pp. 43-44)
"It is not denied, that the powers given to the government imply the ordinary means of execution." M'Culloch v. Maryland (pg. 44)
"The government which has a right to do an act, and has imposed on it, the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception." M'Culloch v. Maryland (pg. 44)
"It is never the end for which other powers are exercised, but a means by which other objects are accomplished." M'Culloch v. Maryland (pg. 45)
"No contributions are made to charity, for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted, in order to be incorporated, but the corporate character is conferred to subserve the purposes of education. No city was ever built, with the sole object of being incorporated, but is incorporated as affording the best means of being well governed." M'Culloch v. Maryland (pg. 45)
"The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them." M'Culloch v. Maryland (pg. 45)
Necessary and Proper Clause
"[T]he constitution of the United States has not left the right of congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added, that of making '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 thereof.'" M'Culloch v. Maryland (pg. 45)
"Congress is not empowered by it to make all laws, which may have relation to the powers confered on the government, but such only as may be 'necessary and proper' for carrying them into execution." M'Culloch v. Maryland (pg. 46)
"The word 'necessary' is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory." M'Culloch v. Maryland (pg. 46)
"If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another." M'Culloch v. Maryland (pg. 46)
"To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable." M'Culloch v. Maryland (pg. 46)
"It must have been the intention of those who gave these powers, to insure, so far as human prudence could insure, their beneficial execution."
"This could not be done, by confiding the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate, and which were conducive to the end." M'Culloch v. Maryland (pg. 47)
"To have declared, that the best means shall not be used, but those alone, without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." M'Culloch v. Maryland (pg. 47)
"We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended." M'Culloch v. Maryland (pg. 49)
"But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." M'Culloch v. Maryland (pg. 49)
"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." M'Culloch v. Maryland (pg. 49)
"Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land." M'Culloch v. Maryland (pg. 50)
"But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground." M'Culloch v. Maryland (pg. 50)
Marshall's Methods of Constitutional Interpretation (pg. 53)
(1) Appeals to Text (and rules for construction of texts)
(2) The theory and structure of the...
Buy the full version of these notes or essay plans and more in our Constitutional Law I Outlines.