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"Opinion against the Constitutionality of a National Bank," Thomas Jefferson, 1791; "Opinion as to the Constitutionality of the Bank of the United States," Alexander Hamilton, 1791, p. 474
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474 forging a nation Opinion against the Constitutionality of a National Bank thomas jefferson February 15, 1791 Opinion as to the Constitutionality of the Bank of the United States alexander hamilton February 23, 1791 Alexander Hamilton served as President Washington’s secretary of the treasury. One of his early legislative proposals was for the formation of a Bank of the United States. The bank would take deposits from and lend money to the federal government, as well as establish a common currency for use in commerce between the states and between American and foreign companies and governments. The new nation had no such bank at this time. Many supported the idea as a means by which to encourage commerce and bind the states together. Others opposed it as an unconstitutional exercise of federal power and a threat to the states and their people. Washington, a careful man, sought opinions on the proposal’s constitutionality from his secretary of state (Thomas Jefferson) and his attorney general (Edmund Randolph) as well as Hamilton. The opinions of Jefferson and Hamilton, reproduced here, flesh out questions of how far the Constitution’s Necessary and Proper Clause expands the powers expressly granted to the federal government and how far the central government’s power of regulating commerce extended. Opinion against the Constitutionality of a National Bank 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.1 1. 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. 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 Constitutionality of a National Bank 475 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. 2d. “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. 3d. 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...