Jefferson's Opinion on the Constitutionality of a National
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.
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.
2. "To borrow money." But this bill neither borrows money nor
ensures the borrowing it. The proprietors of the bank will be just as 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
trace, 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
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 erect a bank, which
would render the great cities, where there were prejudices and jealousies on
the subject, adverse to the reception of the Constitution.
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.
If has been 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 everyone, for there is not one which ingenuity may not torture
into a convenience in some instance 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 power, as before observed. Therefore it was
that the Constitution restrained them to the necessary means, that is to
say, to those means without which the grant of power would be nugatory.
But let us examine this convenience and see what it is. The report on this
subject, page 3, states the only general convenience to be, the
preventing the transportation and re-transportation of money between the States
and the treasury, (for I pass over the increase of circulating medium, ascribed
to it as a want, and which, according to my ideas of paper money, is clearly a
demerit.) Every State will have to pay a sum of tax money into the treasury;
and the treasury will have to pay, in every State, a part of the interest on
the public debt, and salaries to the officers of government resident in that
State. In most of the States there will still be a surplus of tax money to come
up to the seat of government for the officers residing there. The payments of
interest and salary in each State may he made by treasury orders on the State
collector. This will take up the greater part of the money he has collected in
his State, and consequently prevent the great mass of it from being drawn out
of the State. If there be a balance of commerce in favor of that State against
the one in which the government resides, the surplus of taxes will be remitted
by the bills of exchange drawn for that commercial balance. And so it must be
if there was a bank. But if there be no balance of commerce, either direct or
circuitous, all the banks in the world could not bring up the surplus of taxes,
but in the form of money. Treasury orders then, and bills of exchange may
prevent the displacement of the main mass of the money collected, without the
aid of any bank; and where these fail, it cannot be prevented even with that
Perhaps, indeed, bank bills may be a more convenient vehicle than
treasury orders. But a little difference in the degree of
convenience cannot constitute the necessity which the Constitution makes
the ground for assuming any non-enumerated power.
Besides, the existing banks will, without a doubt, enter into arrangements
for lending their agency, and the more favorable, as there will be a
competition among them for it; whereas the bill delivers us up bound to the
national bank, who are free to refuse all arrangement, but on their own terms,
and the public not free, on such refusal, to employ any other bank. That of
Philadelphia I believe, now does this business, by their post-notes, which, by
an arrangement with the treasury, are paid by any State collector to whom they
are presented. This expedient alone suffices to prevent the existence of that
necessity which may justify the assumption of a non-enumerated power as
a means for carrying into effect an enumerated one. The thing may be done, and
has been done, and well done, without this assumption, therefore it does not
stand on that degree of necessity which can honestly justify it.
It may be said that a bank whose bills would have a currency all over the
States, would be more convenient than one whose currency is limited to a single
State. So it would be still more convenient that there should be a bank, whose
bills should have a currency all over the world. But it does not follow from
this superior conveniency, that there exists anywhere a power to establish such
a bank; or that the world may not go on very well without it.
Can it be thought that the Constitution intended that for a shade or two of
convenience, more or less, Congress should be authorized to break down
the most ancient and fundamental laws of the several States; such as those
against Mortmain, the laws of Alienage, the rules of descent, the acts of
distribution, the laws of escheat and forfeiture, the laws of monopoly? Nothing
but a necessity invincible by any other means, can justify such a prostitution
of laws, which constitute the pillars of our whole system of jurisprudence.
Will Congress be too strait-laced to carry the Constitution into honest effect,
unless they may pass over the foundation-laws of the State government for the
slightest convenience of theirs?
The negative of the President is the shield provided by the Constitution to
protect against the invasions of the legislature: 1. The right of the
Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The
present is the case of a right remaining exclusively with the States, and
consequently one of those intended by the Constitution to be placed under its
It must be added, however, that unless the President's mind on a view of
everything which is urged for and against this bill, is tolerably clear that it
is unauthorized by the Constitution; if the pro and the con hang so even as to
balance his judgment, a just respect for the wisdom of the legislature would
naturally decide the balance in favor of their opinion. It is chiefly for cases
where they are clearly misled by error, ambition, or interest, that the
Constitution has placed a check in the negative of the President.
 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.
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