Part III of a Four Part Series by the Legal Scholar Spencer Roane written in 1819. Part I and Part II.
I trust I have shown by the preceding detail, that the words “necessary and proper,” contained in the Constitution, were tautologous and redundant, and carried nothing more to the general government than was conveyed by the general grant of a specified power. I have also shown, that, in that case, such means were implied, and such only, as were essential to effectuate the power: and that this is the case, in all the codes, of the law of nature, of nations, of war, of reason, and the common law. The means, and the only means, admitted by them all, and especially by the common law, are laid down, emphatically, to such, without which the grant cannot have its effect: And I have also endeavored to show that by that law, the construction in this case is to be governed. In all these codes, this implied and ulterior power has the same limitation. In none of them is a claim as extensive as that asserted by the Supreme Court, recognized or tolerated; while, on the other hand, claims far inferior in point of latitude have been often reprobated. This principle, while it carries to the grantee what is necessary, carries nothing more. It respects the rights of both parties. It remembers that there is a grantor, as well as a grantee. It recognizes the golden principle “sic utere tuo ut alienum non ladis.” But when you get beyond this criterion of necessity, you embark in a field without limits; and everything then depending on discretion, the rights of the weaker party will be swept away. This principle, so sacred in all the codes, exists, emphatically, in ours, in which the Constitution has imposed express limits to the granted powers by the strong words used in the Tenth Amendment.
The Supreme Court has said that there is no expression in the Constitution like those in the former confederation, excluding implied or incidental powers. While this is admitted, it is denied that any greater latitude is given to these powers by the Constitution, than they possess under the law of reason and justice, under the great principle which runs through all the codes. If there be any clause in the Constitution having that effect, let it be pointed out. There is none such, and it is incumbent on the party claiming an extension of the general principle, to show that such extension has been made. The State governments being originally in possession of all the legislative powers, are still to retain such as are not shown to have been relinquished.
The Supreme Court, sensible of this necessity, and not being able to show a specific extension of the principle, have argued in favor of an enlarged construction by saying that these terms “necessary and proper,” are placed in the Constitution among the powers, and not among the limitations on those powers. If the object in using them was merely for greater caution, and to put down all uncertainty on the subject, that was the proper place for them. It would have been wrong to have placed them among the prohibitions, as they are not intended to prohibit anything to the general government: it is only contended that they create no enlargement of the powers previously given: In what place, therefore, could these words have been so properly inserted?
The court is also pleased to say, that these terms purport to enlarge the powers previously given. It is difficult to see how a reiteration of the words can increase the power; and it is unimportant whether that power was merely implied or was expressed. A given power is not enlarged by being merely repeated. The Supreme Court itself admits that these terms were used, and only used to remove all doubts of the implied powers of the national legislature, in relation to the great mass of concerns entrusted to it. This is an admission by the court that they were not used for the purpose of enlargement; and it is entirely inconsistent with their other pretension, that these words were put in or purported to enlarge the powers.
The Supreme Court has also claimed such enlargement on the ground that our Constitution is one of a vast republic whose limits they have pompously swelled and greatly exaggerated. The high-sounding words they have used, in describing those, cannot alter the force of great principles. The Constitution is a compact between the people of each State, and those of all the States, and it is nothing more than a compact. The principles I have mentioned are immutable, and apply to all compacts. It is entirely unimportant, whether the territory to which the compact relates, extend* from “Indus to the Pole,” or be no longer than that of the county of Warwick. There is no code which graduates this principle, by the extent of the territory to which it relates.
The Supreme Court has also claimed favor, in this particular on the ground of the magnitude of the trust confided to the general government. If that trust be great, neither is that reserved to the State governments small, or unimportant. On this point, let what the court is pleased to call “the excessive jealousies” of the State* stand as authority. That trust is not small or unimportant, which produced these jealousies: jealousies which could only be quieted by the strong words of reservation, contained in the Tenth Amendment of the Constitution. That trust is not small which relates to “those great objects which immediately concern the prosperity of the people.”
The court is pleased to remind us, with the same view, that it is a constitution we are expounding. That constitution, however, conveys only limited and specified powers to the government, the extent of which must be traced in the instrument itself. The residuary powers abide in the State governments, and the people. If it is a constitution, it is also a compact, and a limited and defined compact. The States have also constitutions, and their people rights, which ought also to be respected. It is in behalf of these constitutions, and these rights that the enlarged and boundless power of the general government is objected to. * * * The construction which gives it, is in entire derogation of them.
It is said by the Supreme Court, that a constitution cannot select among the various means which may be found necessary, in the execution of granted powers. This is distinctly admitted: but the Constitution ought to establish, as ours has established, a criterion in relation to them: and that criterion should be the law to the several departments, in making their selection. That criterion is afforded in the present instance, by the means being “necessary and proper,” to the execution of the power, or not so, as the case may be. * * * A choice may safely be left to Congress, within that limit: but if their choice of means is to go beyond it, and to range at large, without stint or limits, it is in vain to talk of its being a limited government. That government is one of unlimited powers, which is at liberty to use means which are unlimited.
The Supreme Court has said that Congress must “according to the dictates of reason be permitted to select means.” What then, becomes of the terms “necessary and proper?” They further say that those who object to their using any appropriate means must show that it is excepted. On the contrary, we are told by the report, (Madison’s) and by all the authorities, that “it is incumbent on the general government to prove that the Constitution grants the particular power.”
The Supreme Court seems to consider it as quite unimportant, so long as the great principles involving human liberty are not invaded, by which act of the representatives of the people, the powers of government are to be exercised I beg leave to say, on the other hand, that the adjustment of those powers made by the Constitution, between the general and State governments, is beyond their power, and ought not to be set aside. That adjustment has been made by the people themselves, and they only are competent to change it. It ought to be respected by the functionaries of both governments. The rights of the States ought not to be usurped and taken from them; for the powers delegated to the general government are few and deferred, and relate to external objects; while the States retain a residuary and inviolable sovereignty over all other subjects; over all those great subjects which immediately concern the prosperity of the people. Are these last powers of so trivial a character that it is entirely unimportant which of the governments act upon them? Are the representatives of Connecticut in Congress best qualified to make laws on the subject of our Negro population? Or ought the South Carolina nabobs to regulate their steady habits? Is it the wish of any State, or at least of any of the larger States, that the whole circle of legislative powers should be confided to a body in which, in one branch at least, the small State of Delaware has as much weight as the great State of New York; having fourteen times its population? The Supreme Court thinks such a change as this entirely unimportant. On this, as on other occasions, I would “render unto Caesar the things which are Caesar’s.” I would construe the Constitution as it really is.
The Supreme Court is of opinion, that a government having such ample powers as that of the Union, should have ample means for their execution. Within the criterion I have contended for, this is admitted: beyond that criterion, the proposition is denied. If this criterion be inadequate to the true interests of the Union, let the Supreme Court show it to the people, or to the next convention, and these means will be enlarged. They will, in that case, be enlarged by the only competent power. With the Supreme Court the question, and the only question, was, what powers and what means had been granted. The powers of the old confederation were sufficiently ample. They extended at least to making war and peace, which so vitally involve human happiness: but the means of carrying on a war, it did not possess. For those means Congress were entirely dependent on the State governments. The means were not stretched up, by construction, to equal the acknowledged amplitude of the powers. No court or Congress dared to do this: but an appeal was made to the people, in convention, and they amplified the means, by the present Constitution. This is a case exactly in point, and determines the course proper to be pursued, if indeed, the true principle relative to implied powers is not sufficiently extensive.
Indeed, Mr. Editor, the great fault of the present time is, in considering the Constitution as perfect. It is considered as a nose of wax, and is stretched and contradicted at the arbitrary will and pleasure of those who are entrusted to administer it. It is considered as perfect, in contravention of the opinion of those who formed it. Their opinion is greatly manifested, in the ample provisions it contains for its amendment. It is so considered in contravention of everything that is human: for nothing made by man is perfect. It is construed to this effect, by the ins, to the prejudice of the outs; by the agents of one government in prejudice of the rights of another; and by those, who, possessing power, will not fail to “feel it, and forget right.”
The Supreme Court has said, that it is a clear proposition, that the general government, though limited in its powers, is supreme within the sphere of its action: and, again, that the government, though limited in its powers, is supreme. The court had before admitted, in terms, that the government could only exercise the power granted to it. I do not understand this jargon. This word “supreme” does not sound well in a government which acts under a limited constitution. The people only are supreme. The Constitution is subordinate to them, and the departments of the government are subordinate to the Constitution. To use the language of the report of 1799, “the authority of constitutions over governments, and of the people over the constitutions, are truths which are ever kept in mind.” If the court only means that the government is supreme up to the limits of the Constitution, and no further, there is no difference of opinion between us: but in that case their language is inaccurate. A body which is subordinate to a compact, which is subordinate to another body, can scarcely be said to be supreme.
The Supreme Court have said, that the great powers granted to the government cannot be supposed to draw after them, such powers only, as are inferior. I have already given an answer to this position: in addition, I will say that the powers taken into service must be “necessary and proper.” It is a sophism to say, that the annexation of the last word to the first enlarges its signification: both these terms are requisite to define, completely, the character of the power. It must be one which is not only that is peculiar to that end, but also necessary. I shall refer more particularly, presently, to the meaning of these terms.
The court is of the opinion that the right to establish a bank stands on the same foundation with that to exact oaths of office, and that he would be charged with insanity who would deny to Congress the latter power. Of banks, I shall presently show, that, while they are not necessary to the execution of any power, they cut deeply into the reserved rights of the several States. In both of these respects the case of oaths is widely different. * * * I would charge him with insanity who would say that under the actual state of the world they are not necessary. They impose on some men, at least, a solemn obligation to tell the truth: they do it by applying to a future state of rewards and punishments. The convention itself has settled this point by exacting an oath from the President and from other public agents. If it is necessary for the highest officer in the government to stand under this solemn sanction, much more ought those who are inferior. So, while these oaths are necessary, they are entirely harmless. They invade no rights of the State governments, or of the people: and the ground on which the objection rests in the case before us, has no existence as to them.
The denial of the right to establish banks is also said, by the Supreme Court, to carry with it the denial of that of annexing punishments to crimes. That punishment is indispensably necessary: it is a sine quo non of the prohibition of crimes. A penal law without sanction is unknown among civilized men; and that sanction is always vindicatory,rather than renumeratory.
Several other cases put by the Supreme Court on this head stand on the same foundation, and are susceptible of the same answer. In all the other cases, also, the powers implied are necessary to effect the specific objects of the grant. So, on the other hand, they work no injury to the rights of the States or of the people.
What are we to think of the case before us, when the analogies resorted to, to support it, are so widely different from it.
The Supreme Court is further of the opinion, that the power of incorporating banks is justified by the admitted right of Congress to establish governments for the vacant territories of the United States; which governments are also said to be corporations. It is astonishing that the court did not perceive the difference. Those territories have no other local legislatures but the Congress: and consequently, Congress has the same power in them, in this particular, as the State governments have in the several State?. The erection of such governments also invades no right of any State: it is not only harmless as to the States, but absolutely necessary for the preservation of this part of the public property. This power is as harmless as to the States, as that, even, of imposing oaths. This view of the subject makes it unnecessary to consider the effect of another provision in the Constitution—authorizing Congress to make “all needful rules and regulations” in regard to such territories. These words, alone, it is at present supposed, would be sufficient to carry the power.
I come now, to ascertain, more particularly, the meaning of the terms “necessary and proper,” used in the Constitution. I have, before me Johnson’s Dictionary, which is believed to be the best in the English language. By it I find that “necessary” means “needful,” “indispensably requisite”: and that “proper” means “peculiar,” “not common or belonging to more.” To justify a measure under the Constitution it must, therefore, be either “necessary and proper,” or which is the same thing: “indispensably requisite” and “peculiar” to the execution of a given power. So far from the Bank of the United States being peculiar to any of the given powers, its friends have not yet agreed upon the particular power to which it is to be attached! Hence, it is that the present bank law is wholly without a preamble, stating the grounds on which it was predicated. At the same time that Congress were under this inability, they were not able to agree with Mr. Hamilton, as to the grounds of the first bank law, nor with the Supreme Court. They could not agree with Mr. Hamilton that it should be accepted because it would be “conducive to the successful conducting of the national finances, tend to give facility to the obtaining of loans, and be productive of considerable advantage to trade and industry in general.” The Supreme Court has admitted an incorporation not to be peculiar to any of the powers, by contending that it is a means common to many ends, such as building cities and the like. This power, therefore, to say the least, is not peculiar or necessary to the execution of any of the granted powers; and Mr. Hamilton has himself admitted this, by using the diffuse and ductile terms contained in the preamble to this bill. I will ask with Madison, in his celebrated speech against the first bank law, is it possible to consider these words used by Mr. Hamilton, as synonymous with the words “necessary and proper,” used in the Constitution?
Having shown what the true meaning of these words is, I repeat that it is an universal rule of construction in relation to all treaties, pacts and promises, that we ought not to deviate from the common use of language, unless we have the strongest reasons for it. These reasons are in this case, the other way. Again, we are told that when a pact or treaty is expressed in clear terms, there is no reason to refuse them the sense they naturally bear. Unless you take the words before us in their proper sense, everything belonging to the States will be swept away. They will be engulfed in the vortex of the general government.
Yet the Supreme Court has said, that the term “necessary” frequently means “convenient or useful,” and that it sometimes means “conducive to.” This last sense of the word is at least not its natural sense, and has not been revived, before, since the days of Mr. Hamilton, and of the famous sedition law. It opens too wide a door, to the powers of the general government. In relation to the power of quelling insurrections, for example, the incidental power heretofore implied, has been limited to that of raising armies, and applying force against insurgents. Yet it would be very conducive to the end of suppressing insurrections, to prevent them, by establishing good systems of religious and moral instruction. That is a means highly conducive to this end, and on the construction of the Supreme Court would justify Congress in taking our schools and churches into their care! This construction would even give Congress a right to disarm the people, as nothing is more conducive to insurrection, than having the means to make it successful. The latitude of construction now favored by the Supreme Court, is precisely that which brought the memorable sedition act into our code. The object of that law was, to prevent sedition by the people and as conducive to that end, all inflammatory publications in the newspapers were prohibited! That law has, however, been scouted from the American code. Although prohibiting such publications might be conducive to the end in view, it has not lately been considered as a direct and incidental power, within the meaning of the Constitution.
It is supposed by the court that the word “necessary” is not to be taken in the sense I contended for, because, in another part of the Constitution, the term indispensably is added to it. If there be any essential difference between “indispensably necessary,” and “indispensably requisite” (one of the meanings of the word “necessary,” given by Johnson), I am not able to discern it.
Again, the Supreme Court has said, that Congress may use any means “appropriate or adapted to the end.” They have not that latitude of power, unless you expunge the word “necessary” from the Constitution.
I had intended, Mr. Editor, to enter into a more detailed enquiry as to the constitutionality of the Bank of the United States. That, however, is but a single measure, and must probably be submitted to. With respect to it, the maxim “factum valet fieri non debet,” must, perhaps, apply. I would yield to it on the single principle, of giving up a part to save the whole. I principally make war against the declaratory decision of the Supreme Court, giving Congress power to “bind us in all cases whatsoever.” That measure, the bank, has, perhaps, so entwined itself into the interests and transactions of our people, that it may not, without difficulty, be cast off. There is a great difference, too, between particular infractions of the Constitution, and declaratory doctrines having the effect to change the Constitution. That bank, however, is certainly not necessary to the existence of the general government. It is not more so, than the banks of the several States It may, like the State banks, refuse to lend money to the general government. If with a view to secure these loans Congress should take the bank entirely into its own hands, it would so augment the powers of the government as to endanger the liberties of the people. The old bank expired before the late war commenced, and the present one was only established since the peace; so that our country got along without it, through a bloody war, against a most powerful nation, and when a band of internal traitors were arrayed against it. After this, can a bank be said to be essential to the existence of a country? Russia, Prussia, and other European governments, of high rank, have no bank, nor had England prior to the period of her revolution. They are, therefore, not indispensable. While this institution is not necessary, in relation to the government of the United States, its establishment cuts deep, on the other hand, into the rights of the several States. Among other objections to it, coming under this head, it enables the corporation of the bank, by its by-laws, to repeal the laws of the several States, (Section 7, of the Act of Establishing the Bank); a right only given to the Congress itself, by the Constitution, and that only when acting under its provisions. It repeals a right before possessed by the States, to limit the number of banks within their territory. It inundates them with paper money, under pain of submitting to that evil, or breaking faith with their own banks, previously established. If they should consent to this last alternative, as the lesser of two evils, it obliges them to refund from their treasuries, the premiums they have received therefor. These banks increase usury, in the several States contrary to the policy of their laws, not only by permitting them to trade upon perhaps three or four times their capital stock, but by the saving which our banks have been, universally, found to produce. They exempt the persons of the stockholders from imprisonment for their bank debts, and the other property of the said stockholders from its liability to pay their said debts, in equal violation of justice, and the laws of the several States. They give exclusive privileges within the States, without any public services rendered to the State therefor, equally contravening a great principle, and the Fourth Article of the Virginia Bill of Rights; and they enable aliens and foreigners to hold lands, within the several States, in contravention of the general policy of their laws. The Supreme Court were pleased to go out of the record and, to tell us, that some of our distinguished functionaries had changed their opinion on this subject. They forgot, however, to inform us, that a motion was made and rejected, in the General Convention, to give Congress the power of erecting corporations. They also omitted to state, that Washington hesitated on this subject, till the last moment, and then decided, against the majority of his Cabinet, and particularly against the opinion of Mr. Jefferson. As to the point of acquiescence, in addition to the few remarks I made before, it is to be observed that only two bills have passed for establishing banks, while two have been rejected. So that the account stands two and two. There was an interregnum, if I may so say, as to this institution. There has been a chasm in the time of its continuance. It has not even that characteristic which is essential to the goodness of a custom, by the common law. It has not been continued. This interrupted acquiescence, too, may have arisen from another cause. The contract being made, it may have been supposed, that the public faith required that it should be permitted to have its effect; or to run out. We are told by Vattel, that the suspension of a right does not abandon it, for that the suspension may have been prudent. There is no doubt but many of those who voted for the bank, did it under what was supposed the peculiar pressure of the times. It was not adopted in relation to ordinary times, nor on the ground of its being a constitutional measure. I am possessed of facts on this point, which entirely justify the idea.
Yet this equivocal and interrupted acquiescence has been deemed by the court, in some measure, to settle the question! There have been also some subsilentio decisions upon the subject. The court, however, well knows, that decisions of this character, do not settle great questions. No decision is deemed solemn and final, which is not rendered upon consideration and argument.
I cannot conclude this number, Mr. Editor, without expressing my regret at another position taken by the Supreme Court. They say, that if the necessity of the bank was less apparent than it is, it being an appropriate measure, the degree of the necessity is to be exclusively decided on, by Congress. If it is only an appropriate means, how does the question of necessity arise? And, if Congress should assume a power under a degree of necessity short of that contemplated by the Constitution, ought not the court to interfere? Are Congress, “although there is a written Constitution, to follow their own will and pleasure?”
From Richmond Enquirer, June 18,1819.