#11117 - The Bank Controversy Implied And Inherent Powers - Constitutional Law I

The Bank Controversy - Implied and Inherent Powers

1. James Madison's View (pg. 28)

   1. Madison's Rules of Interpretation:

      1. (1) An interpretation that destroys the very characteristic of the Government cannot be just.

      2. (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. (3) In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide.

      4. (4) Contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties.

      5. (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.

   2. Arguments Against the Bank:

      1. (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. (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. (3) If the necessary and proper clause is to be read so broadly, why would all the other powers have been enumerated?

         • Superfluous?

           • "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. (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.

   3. 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.

2. Attorney General Edmund Randolph's View (pg. 32)

   1. Randolph makes a similar slippery slope argument as Madison.

      1. "To be implied in the nature of the federal government would beget a doctrine so indefinite as to grasp every power."

   2. 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.

3. Thomas Jefferson's View (pg. 33)

   1. Thomas Jefferson also employed the slippery slope argument.

      1. "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."

   2. Also, he discusses the definition of "necessary."

      1. "[T]he Constitution allows only the means which are 'necessary,' not those which are merely 'convenient' for effecting the enumerated powers."

      2. 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 . . . ."

4. Alexander Hamilton's View (pg. 34)

   1. "[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.

      1. The Constitution provides various ends. See Art. I, § 8.

      2. The national government is able to use the most appropriate means to reach those ends.

   2. You cannot look at the situation in the abstract.

      1. It is an incidence of sovereignty to be able to erect a corporation

   3. The incorporation of a bank is merely a means; it is not an end in and of itself.

      1. You cannot just incorporate any corporation.

      2. Limiting Principle: Whether the ends are legitimate and enumerated in the Constitution.

   4. Definition of "necessary"

      1. Often times "necessary" means "no more than needful, requisite, incidental, useful, or conducive to.

      2. 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)

      3. 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)

   5. A Criterion of What is Constitutional - TEST

      1. (1) If the end be clearly comprehended within any of the specified powers, and

      2. (2) If the measure have an obvious relation to that end, and

      3. (3) The measure is not forbidden by any particular provision of the Constitution -

      4. The measure may safely be deemed to come within the compass of the national authority.

   6. 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.

5. The Second Bank

   1. The First Bank of the United Bank Bill was passed by both houses and signed by the President.

   2. When the 20-year charter expired in 1811, the Congress refused to renew.

   3. Originally, when it was passed the first time, Madison vetoed the Bill.

   4. In 1816, the Second Bank Bill was ultimately signed by President Madison.

6. M'Culloch v. Maryland - Part I (pp. 38-62)

   1. Issue: Whether the Congress has the power to incorporate a bank.

      1. NOTE: The necessary and proper clause is not even mentioned in the first 21 paragraphs.

   2. The Court starts with a presumption in favor of constitutionality.

      1. "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."

      2. "The power now contested was exercised by the first congress elected under the present constitution." M'Culloch v. Maryland (pg. 39)

      3. "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)

      4. "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)

      5. "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)

   3. Implied Powers

      1. [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 ...