The United States of America, Part 1: 1783-1830

by Edwin Erle Sparks

In the House, the right of the Federal Government to found a bank was attacked by Madison, who here parted from Hamilton, with whom he had laboured in getting the Constitution adopted. The line-up of parties had begun. Madison found himself opposed to the way in which the Government was being perverted by Hamilton under the Constitution. His speech is the first extensive exposition of the doctrine of strict construction of the written instrument; that the central power must be held strictly to the powers numerated in the document. Strict construction exhibits the vice of a written Constitution—the impossibility of growth or even continued life within the bonds of the written word. Stagnation and death must result from binding the limbs of the body politic. Loosening by interpretation is the remedy. Madison was correct in saying that the right to incorporate bodies was proposed in the Philadelphia Convention and abandoned; that the power to incorporate a bank was nowhere given in the Constitution to the Federal Government; that banking was presumed to be a matter for State control; that in all the debates and papers written on the Constitution it was understood that "the powers not given were retained; and that those given were not to be extended by remote implications."

In reply, Boudinot did not deny that all powers, vested heretofore in any individual State, and not granted by this instrument, were still retained by the people of such State and could not be exercised by Congress. But he then showed that the power to incorporate the bank was "drawn by necessary implication" from those expressed. The preamble declared in general terms the objects of the Constitution; one of the expressed functions under it was "to borrow money"; and the circle was completed by the liberal clause to "make all laws necessary and proper for carrying into execution the foregoing powers." Now to provide for the general welfare it might be necessary to borrow money; a bank was essential to the borrowing of money in adequate sums; therefore the power to establish a bank was deduced by the strongest and most decisive implication.

Here was the first complete exposition of the doctrine of a loose construction for the wording of the Constitution. If that be correct reasoning, said the opposition, the Constitution may as well stop with the preamble, since there is no power under heaven which could not be exercised within its limits. It would mean the consolidation of all powers, and the practical extinction of local government. The attitude of the two sides in the debate may be shown by one illustration employed. Suppose the power to make a treaty or to raise an army had been omitted from the Constitution, asked the Hamiltonians, could the National Government in an emergency assume such rights from the preamble and the powers expressed? Must it hesitate and temporise while the blood of its citizens was being shed? Such an assumption of power, replied the strict interpreters, might be excusable in an emergency, but could be warranted as a practice only by an amendment to the Constitution made in the manner it prescribed.

The present situation and the compelling force which had produced it were manifest when those who favoured giving the Union such implied powers as would make it effective pointed out many instances of implication of which Congress had already been guilty; such as accepting land for lighthouses, defining crimes under power to establish courts, and even creating corporations in the shape of the North-West and the South-West territories. One of these lesions of the written word, that which interpreted a clause so as to give the President power over removals from office, Madison himself had favoured.

This first constitutional debate also outlined the geographical sectionalism which has penetrated and influenced every feature of American political as well as commercial and social life. The Northern and Middle States contained the cities, made up of the trading class, whose capital was chiefly in ready money. The capital of the rural dwellers of the South was in land and slaves, not easily converted into cash. The latter became the borrowing, the former the lending section. The spirit of unionism was engendered in the first by reason of their urban life, their commercial employment, and their frequent contact in business. The feeling of individualism was as naturally bred in the latter by their rural surroundings, their agricultural occupation, and the self-reliance induced by their solitary environment. The opposition to the Constitution in Massachusetts, Rhode Island, New York, and Pennsylvania had been confined almost entirely to the country. The rural States of Virginia, North Carolina, and South Carolina did not adopt the new frame without a struggle. Georgia was a Southern exception; but population dwelt so exclusively along the coast in the new State of Georgia that it was really a commercial State, settled largely by New Englanders.

The mercantile class of the Northern and Central States, after Anti- Federalism had been silenced by the success of the new Government, was ready to adopt the theory of loose construction or interpretation by inclusion, which would tend toward the realisation of a more potent union. At the same time, a bank, supported by the patronage of the National Government, with no danger of competition for twenty years, offered not only a security for capital against such dangers as it had previously known, but also, through its branches, an extended agency for transacting business. Many details of the bill, such as the advantages given to holders of national rather than State certificates in subscribing for stock, contributed to the sectional division. The national certificates were held in the commercial centres. The influence of the city of New York, where the Congress met, no doubt contributed to the passage of the bank and other commercial measures.

Precisely the opposite feelings held in the Southern States. Every vote cast in the House against the bank came from Maryland or a State to the south of it. There were a few scattering votes from the Southern States in favour of the measure, but as a whole political lines were here unconsciously drawn for a century to come, if not for the entire existence of the Republic. The "court and country" parties of colonial days had been born again.

Many of the members were surprised to find sentiment toward these financial measures assuming such a sectional trend. Sectional interests had been only too manifest in the convention, but compromises had settled them, presumably for ever. Compromise is only a relief; it is never a remedy. After each compromise in American history it has been a matter of surprise to the participants that others were needed. On the bank bill, a member wrote to a correspondent: "You may think it unaccountable, but so it is that the differences in climate seem to govern the opinions on this bill, and Potomac seems to be near the dividing line with few exceptions."

Virginia was the leader of the section south of the Potomac, and Jefferson was the leader of Virginia. Although debarred from the congressional debates by his Cabinet position, he filled his letters to his friends with warnings against the dangerous assumptions of the Hamilton measures. In response to Washington's inquiry to his Cabinet upon the constitutionality of the bank, Jefferson drew up a paper setting forth in strong terms his opinion that the Central Government had no power to engage in business. Hamilton presented an equally strong argument for the bank in his reply.

Madison, the leader of individualism in the House, could not agree with Hamilton's interpretation of the "general welfare" clause of the Constitution. The former co-labourers for efficient government parted at this point. Madison thought the adoption of such an interpretation would change the National Government from a limited one, possessing certain specified powers, to an indefinite one, subject only to particular exceptions. The phrase concerning "the general welfare" had been taken from the Articles, he said, where it was understood to be nothing more than a general caption to specified powers, and had been retained because it was less liable to misconstruction than any other. Whatever had been the original intent, the spirit of the implied powers had been summoned from the vasty deep of uncertainty to aid in making a confederated republic from confederated States.