Jefferson on the Constitutionality of the 1791 National Bank, A Bank Like the Fed
Americans look to John F. Kennedy as being one of the great heroes of the last century. At a White House dinner honoring Nobel Prize winners on April 29, 1962, Jack Kennedy said:
"I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone."
Jefferson's intelligence was exercised in 1791, when President Washington requested the opinion of each of his cabinet members on the constitutionality of the First Bank of the United States, established by Congress in 1791 at the behest of Alexander Hamilton.
If Jefferson was considered brilliant by Kennedy 171 years later, he certainly should be considered brilliant in one of the most important papers he ever wrote concerning the Constitution. Below is an excerpt from that opinion; specifically on two key constitutional issues; one concerning the general welfare clause and the second concerning the necessary and proper clause. Any historian of constitutional law knows that the greatest extensions of federal power that have ever been made have been made through the interpretations of those two clauses.
Recognizing that Jefferson was so brilliant, read his opinion concerning those two clauses and try to reconcile it with the continued expansion of the federal government. Jefferson's quotes are right on point and are characteristically brilliant. If either the general welfare clause or the necessary and proper clause meant what they have been expanded to mean over the last two hundred years, there would be no need for any of the rest of the constitution because congress could do anything it wanted by its interpretation of these clauses. It is absurdity of the highest order to believe that the Framers of the Constitution meant for those clauses to be able to be interpreted so broadly.
Here we have shown you Jefferson's opinion to Washington on the establishment of the 1791 bank. In a future post, we will discuss why Jefferson did not make the Article 1, Section 8 argument against a bank's power to issue "paper money;" an evil of which the founders were well aware.
Here is the relevant excerpt from Jefferson's opinion on the constitutionality of the 1791 National Bank: or you can review Jefferson's full opinion.
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. (Emphasis Added.) 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 will 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, those powers could not be carried into effect.
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 much 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 way or other, to some one of so long a list of enumerated powers: it would swallow up all the delegated powers, and reduce the whole to one phrase, as before observed. (Emphasis Added) Therefore it was that the constitution restrained them to the necessary means; that is to say, to those means, without which the grant of the power would be nugatory.
* ad libitum - "at one's pleasure"
Posted on 05/31/2011 9:00 AM by George M. Johnson, PC