Development of Parties In Washington's First Administration
by Gary Emerson
Newfield High School
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Hamilton on the Constitutionality of the National
Bank
February 23, 1791
"It is not denied that there are implied as well as express
powers, and that the former are as effectually delegated as the
latter. It is conceded that implied powers are to be considered as
delegated equally with express ones. Then it follows, that as a
power of erecting a corporation may well be implied as any other
thing, it may as well be employed as an instrument or mean
of carrying into execution any of the specified powers, as any other
instrument or mean whatever. The only question must be, in
this, as in every other case, whether the mean to be employed, or in this
instance, the corporation to be erected, has a natural relation to any of
the acknowledged objects or lawful ends of the government. Thus a
corporation may not be erected by Congress for superintending the police
of the city of Philadelphia, because they are not authorized to
regulate the police of that city. But one may be elected in
relation to the collection of taxes, or to trade with foreign countries,
or with the Indian tribes; because it is the province of the federal
government to regulate those objects and because it is incidental
to a general sovereign or legislative power to
regulate a thing, to employ all the means which relate to its
regulation to the best and greatest advantage.
Through this mode of reasoning respecting the right of employing all the
means requisite to the execution of the specified powers of the
government, it is objected, that none but necessary and proper means are
to be employed; and the Secretary of State [Thomas Jefferson] maintains,
that no means are to be considered as necessary but those without
which the grant of power would be nugatory [futile, worthless].
It is essential to the being of the national government, that so erroneous
a conception of the meaning of the word necessary should be
exploded.
It is certain, that neither the grammatical nor popular sense of the term
requires that construction. According to both, necessary often means no
more than needful, requisite, incidental, useful, or conducive to. And it
is the true one in which is to be understood in the Constitution. The
whole turn of the clause containing it indicates, that it was the intent
of the Convention, by that clause, to give a liberal latitude to the
exercise of the specified powers. The expressions have peculiar
comprehensiveness. They are to make all laws necessary and proper
for carrying into execution the foregoing powers, and all
other powers, vested by the Constitution in the government of
the United States, or in any department or officer thereof.
To understand the word as the Secretary of State does, would be to depart
from its obvious and popular sense, and give it a restrictive operation,
an idea never before entertained. It would be to give it the same force as
if the word absolutely or indispensably had been prefixed to
it.
This restrictive interpretation of the word necessary is also
contrary to this sound maxim of construction; namely, that the powers
contained in a constitution of government, especially those which concern
the general administration of the affairs of a country, its finances,
trade, defence &c., ought to be construed liberally in advancement of the
public good. The means by which national exigencies [urgencies] are to be
provided for, national inconveniences obviated [prevented], national
prosperity promoted, are of such infinite variety, extent, and complexity,
that there must of necessity be great latitude of discretion in the
selection and application of those means. Hence, consequently, the
necessity and propriety of exercising the authorities intrusted to a
government on principles of liberal construction.
A hope is entertained that it has, by this time, been made to appear, to
the satisfaction of the President, that a bank has a natural relation to
the power of collecting taxes to that of regulating trade to that of
providing for the common defence and that, as the bill under construction
contemplates the government in the light of a joint proprietor of the
stock of the bank, it brings the case within the provision of the clause
of the Constitution which immediately respects the property of the United
States."
How does Hamilton justify the creation of a national bank?
How does Hamilton interpret the Constitution -- does he rely on broad or
strict construction?
What are the express powers that Hamilton refers to?
What are the "implied powers?"
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