by Diane Rufino, September 16, 2018
In 1791, Thomas Jefferson wrote an opinion on the constitutionality of a National Bank. It is an important commentary on the meaning and intent of the US Constitution, in particular the two general clauses – the General Welfare Clause and the Necessary and Proper Clause.
President George Washington’s Secretary of the Treasury, Alexander Hamilton proposed the creation of a national bank. He advised that a national bank would “give great facility or convenience in the collection of taxes” and would facilitate the government’s assumption of the states’ Revolutionary War debts, thus serving the taxing power of the federal government. Not sure if such a bank was a constitutional exercise of government legislative power, Washington asked Hamilton and Jefferson, his Secretary of State, to articulate their positions.
And so, on Feb. 15, 1791, Jefferson submitted an opinion to Washington against the creation of a National Bank, explaining that it was not authorized by any specific delegation of power nor was it contemplated by any of the general clauses. In specific, he articulated that the “Necessary & Proper” Clause meant that Congress could take action only when it was necessary (and proper) to bring into effect any of the specifically enumerated powers; that is, without those means without which the grant of power would be meaningless. The clause did not mean Congress could pursue action that was merely convenient or helpful.” Jefferson said that all the functions of which Hamilton was concerned – the collection of taxes, the paying of war debt, etc – could all be carried into execution without a bank. Therefore, as a constitutional matter, he concluded that a bank was not necessary, and consequently not authorized by the “Necessary & Proper” phrase.
Hamilton’s opinion was different. He argued that the Constitution, in Article I, Section 8, created a legislature not only of specific powers but of implied powers as well.
In the end, the House and then the Senate approved a bill establishing a charter for the first National Bank, and President Washington, siding with Hamilton, signed it. The first Bank of the United States was built in Philadelphia.
Chef Justice John Marshall, the man credited with transforming the role of the Supreme Court, later chose to ignore Jefferson’s opinion and commentary when the constitutionality of the national bank came before the Court in 1819 – in McCulloch v. Maryland. His opinion in that case echoed Hamilton’s view that the federal government is indeed one of express AND implied powers, an issue that was DIRECTLY addressed and dismissed at the Constitutional Convention in 1787 and again when states expressed concern in their ratifying conventions.
While this Opinion by Thomas Jefferson shows us how our federal judiciary willingly chooses to ignore four country’s most important and most credible authority on the meaning and intent of the Constitution when it is faced with the chance to assign greater power to the federal government, there is another reason why this opinion is important: It explains the intended checks and balances on the federal legislature, both horizontal and vertical. The Supreme Court would later find the most important check to be unconstitutional. Imagine that.
At the end of his Opinion, Jefferson writes:
“The negative of the President is the shield provided by the Constitution to protect against the invasions of the legislature: 1. The right of the Executive. 2. Of the Judiciary. 3. Of the States and State legislatures. The present is the case of a right remaining exclusively with the States, and consequently one of those intended by the Constitution to be placed under its protection.”
In other words, the rightful checks on the lawmaking power of the US Congress include:
(1) The President (he can veto or refuse to sign the bill into law; or he can, by Executive Order, explain that certain provisions are unenforceable because they exceed authority)
(2) The courts (the federal courts can strike down a law as “unconstitutional”)
(3) The States and State legislatures (The States can separately find a federal law to be unconstitutional, per their understanding of the Constitution and per their reserved powers under the Tenth Amendment)
Number (3) above is NULLIFICATION and includes INTERPOSITION. These are the rightful remedies reserved to each State, according to Jefferson when the federal government exceeds its delegated authority under the Constitution and specifically, when it attempts to legislate in areas reserved to the States under the Tenth Amendment. A law passed without constitutional authority is a law is a nullity; it is unenforceable. And it SHOULD be. It is up to the States, as the most important of the Checks and Balances (a vertical check) to make sure that the people, protected by the Constitution as to the lawful bounds of government, are not subject to unconstitutional laws.
Here you have it, from the earliest days of our republic, the clear and simple articulation of the right of Nullification.
Jefferson, of course, would go on to articulate it much more clearly and forcibly, in the Kentucky Resolves of 1799 (a series of resolutions he wrote secretly for the Kentucky state legislature to oppose the highly unconstitutional Alien & Sedition Acts, enacted by the administration of John Adams. In the Kentucky Resolves of 1799, Jefferson wrote:
“If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a NULLIFICATION, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact.”
Nullification is, and has always been, a rightful remedy by which each State can review the constitutionality of government acts and policy (and even federal court opinions) and if an abuse is found, to protect the citizens in their States from the tyranny that would result from their enforcement.
Thomas Jefferson, Opinion on the Constitutionality of a National Bank, Avalon Project (Yale Law School). Referenced at: http://avalon.law.yale.edu/18th_century/bank-tj.asp
Thomas Jefferson to George Washington, February 15, 1791, Opinion on Bill for Establishing a National Bank, from the Works of Thomas Jefferson in Twelve Volumes, from the Library of Congress. Referenced at: https://memory.loc.gov/service/mss/mtj/mtj1/013/013_0984_0990.pdf [NOTE: The Library of Congress was formed when Thomas Jefferson donated the contents of his personal library]
The Kentucky Resolves of 1799 (The Constitution Society). Referenced at: http://www.constitution.org/cons/kent1799.htm