Thomas Jefferson, the Apostle of Americanism

by Gilbert Chinard

Jefferson started out by enumerating the different measures included in the Bank Bill, pointing out en passant that they were intended to break down the most ancient and fundamental laws of 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. He then demonstrated to his own satisfaction that power to establish such an institution was neither specifically declared nor implied in any article of the Constitution. The only general statement that could be construed as authorizing it was a mention "to make all laws necessary and proper for carrying into execution the enumerated powers." Finally he undertook to prove that the bank might be convenient but was in nowise necessary. The conclusion was obvious after these very closely knitted pieces of legal reasoning: "Nothing but a necessity inevitable by any other means can justify such a prostitution of laws, which constitute the pillars of our whole system of jurisprudence." The President's veto could clearly be used in that case, since that was the buckler provided by the Constitution to protect it against the invasions of the legislature.

ALEXANDER HAMILTON
From the painting by John Trumbull in the possession of the Essex Institute, Salem, Mass.

Jefferson could and perhaps should have stopped there. But he was far from certain that Hamilton's views would not prevail, and in that case he would have committed himself irrevocably. This he did not wish to do. He consequently provided at the end a way of escape for himself as well as for the President:

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.

This was very adroit, almost too adroit. It was the answer of a master politician. Whether it was absolutely straightforward is a very different question. Jefferson, who so often accused others of being "trimmers", was undoubtedly open to such an accusation himself.

With the opinion of Randolph and Jefferson before him, the President asked Hamilton, as sponsor of the bill, to present his rejoinder in writing. On the twenty-third he submitted his famous "Opinion as to the Constitutionality of the Bank of the United States" in which he developed the doctrine of "implied powers."

Now it appears—said Hamilton—to the Secretary of the Treasury that this general principle is inherent in the very definition of government 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 includes, 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 Constitutions, or not immoral, or not contrary to the essential ends of political society.

As a matter of fact, the question at the bottom of the controversy was the question of State rights; but, curiously enough, it is indicated only incidentally in Jefferson's opinion. He was not ready to join issues on that question, much more clearly brought forward by Madison in his speeches before the House, when he said:

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 United States, are reserved to the States or to the people (XIIth amendment). To take a single step beyond the boundaries thus specifically drawn around the power of Congress, is to take possession of a boundless field of power, no longer susceptible of definition.[250]