Albert Beveridge - The Life of John Marshall (Volume 2 of 4)

The fight apparently over, Marshall declined to become a candidate for the Legislature in the following year. The Administration's financial plan was now enacted into law and the vital part of the National machinery thus set up and in motion. The country was responding with a degree of prosperity hitherto unknown, and, for the time, all seemed secure. 180 180 Marshall, ii, 192. So Marshall did not again consent to serve in the House of Delegates until 1795. But the years between these periods of his public life brought forth events which were determinative of the Nation's future. Upon the questions growing out of them, John Marshall was one of the ever-decreasing Virginia minority which stanchly upheld the policies of the National Government.

Virginia's declaration of the unconstitutionality of the Assumption Act had now thundered in Jefferson's ears. He himself was instrumental in the enactment of this law and its unconstitutionality never occurred to him 181 181 In Jefferson's letters, already cited, not the faintest suggestion appears that he thought the law unconstitutional. Not until Patrick Henry's resolution, and the address of the Virginia Legislature to Congress based thereon, made the point that Assumption was in violation of this instrument, because the power to pass such a law was not expressly given in the Constitution, did Jefferson take his stand against implied powers. until Virginia spoke. But, faithful to the people's voice, 182 182 "Whether … right or wrong, abstractedly, more attention should be paid to the general opinion." (Jefferson to Mason, Feb. 4, 1791; Works : Ford, vi, 186.) Jefferson was already publicly opposing, through the timid but resourceful Madison 183 183 Monroe had advised Madison of the hostility of Virginia to Assumption and incidentally asked for an office for his own brother-in-law. (Monroe to Madison, July 2, 1790; Monroe's Writings : Hamilton, i, 208; and see Monroe to Jefferson, July 3, 1790; ib. , 209.) and the fearless and aggressive 184 184 Anderson, 21. Giles, the Nationalist statesmanship of Hamilton. 185 185 Jefferson himself, a year after he helped pass the Assumption Act, had in a Cabinet paper fiercely attacked Hamilton's plan; and the latter answered in a formal statement to the President. These two documents are the ablest summaries of the opposing sides of this great controversy. (See Jefferson to President, May 23, 1792; Works : Ford, vi, 487-95; and Hamilton to Washington, Aug. 18, 1792; Works : Lodge, ii, 426-72.)

Thus it came about that when Washington asked his Cabinet's opinion upon the bill to incorporate the Bank of the United States, Jefferson promptly expressed with all his power the constitutional theory of the Virginia Legislature. The opposition had reached the point when, if no other objection could be found to any measure of the National Government, its "unconstitutionality" was urged against it. "We hear, incessantly, from the old foes of the Constitution 'this is unconstitutional and that is,' and, indeed, what is not? I scarce know a point which has not produced this cry, not excepting a motion for adjourning." 186 186 Ames to Minot, March 8, 1792; Works : Ames, i, 114. Jefferson now proceeded "to produce this cry" against the Bank Bill.

Hamilton's plan, said Jefferson, violated the Constitution. "To take a single step beyond the boundaries thus specially drawn around the powers of Congress [the Twelfth Amendment] 187 187 Tenth Amendment, as ratified. is to take possession of a boundless field of power, no longer susceptible of any definition." Even if the bank were "convenient" to carry out any power specifically granted in the Constitution, yet it was not " necessary ," argued Jefferson; all powers expressly given could be exercised without the bank. It was only indispensable powers that the Constitution permitted to be implied from those definitely bestowed on Congress – "convenience is not necessity." 188 188 "Opinion on the Constitutionality of a National Bank of the United States"; Works : Ford, vi, 198; and see Madison's argument against the constitutionality of the Bank Act in Annals , 1st Cong., Feb. 2, 1791, pp. 1944-52; Feb. 8, 2008-12; also, Writings : Hunt, vi, 19-42. This argument best shows Madison's sudden and radical change from an extreme Nationalist to an advocate of the most restricted National powers.

Hamilton answered with his argument for the doctrine of implied powers. 189 189 Hamilton's "Opinion as to the Constitutionality of the Bank of the United States"; Works : Lodge, iii, 445-93. Adams took the same view. (See Adams to Rush, Dec. 27, 1810; Old Family Letters , 272.) Banks, said he, are products of civilized life – all enlightened commercial nations have them. He showed the benefits and utility of banks; answered all the objections to these financial agencies; and then examined the disputed constitutionality of the bill for the incorporation of the Bank of the United States.

All the powers of the National Government were not set down in words in the Constitution and could not be. For instance, there are the "resulting powers," as over conquered territory. Nobody could deny the existence of such powers – yet they were not granted by the language of the fundamental law. As to Jefferson's argument based on the word "necessary," his contention meant, said Hamilton, that "no means are to be considered necessary without which the power would be nugatory " – which was absurd. Jefferson's reasoning would require that an implied power should be " absolutely or indispensably necessary."

But this was not the ordinary meaning of the word and it was by this usual and customary understanding of terms that the Constitution must be interpreted. If Jefferson was right, Congress could act only in "a case of extreme necessity." Such a construction of the Constitution would prevent the National Government even from erecting lighthouses, piers, and other conveniences of commerce which could be carried on without them. These illustrations revealed the paralysis of government concealed in Jefferson's philosophy.

The true test of implied powers, Hamilton showed, was the "natural relation [of means] to the … lawful ends of the government." Collection of taxes, foreign and interstate trade, were, admittedly, such ends. The National power to " regulate " these is " sovereign "; and therefore "to employ all the means which will relate to their regulation to the best and greatest advantage" is permissible.

"This general principle is inherent in the very definition of government," declared he, "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 included 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 and exceptions specified in the Constitution or not immoral, or not contrary to the essential ends of political society…

"The powers of the Federal Government, as to its objects are sovereign"; the National Constitution, National laws, and treaties are expressly declared to be "the supreme law of the land." And he added, sarcastically: "The power which can create the supreme law of the land in any case is doubtless sovereign as to such case." But, said Hamilton, "it is unquestionably incident to sovereign power to erect corporations, and consequently to that of the United States, in relation to the objects intrusted to the management of the government."