Our Adaptable Constitution

The advent of the Tea Party brought forth a broad interest in strict constructionism, the brand of constitutional interpretation propagated by Thomas Jefferson and James Madison’s Democratic-Republican adherents. At its heart, this doctrine dictates that the federal government limit itself to those powers explicitly delegated to it in Article I, Section 8 of the Constitution, also known as the “enumerated powers of Congress.”

In February of 1791, Alexander Hamilton submitted to Congress the blueprint for a Bank of the United States, a privately operated institution that would provide much needed liquidity to a fledgling national economy. This proposal came on the heels of Hamilton’s Report on Public Credit. In this intellectual tour de force, the Treasury Secretary erected the scaffolding of his plan for funding and assumption, whereby the new central government would assume the debts accrued by individual states during the Revolution and permanently fund the subsequent public debt.

Though it alienated that group of states (of which Virginia was the most prominent member) that had retired their debt prior to adoption of the Constitution, assumption was a prudent step in the establishment of American credit, assuring the world that the United States would honor contracts into which it had entered. After these assumed debts had been compounded by Continental debt, bonds would be sold to private citizens. The capital unleashed by these purchases would be used to repay foreign creditors. Enforcing customs duties with the forerunner to the Coast Guard, Hamilton would service the interest on the bonds, paying down the principal with an excise tax on whiskey (a policy that would lead to the 1794 Whiskey Rebellion in western Pennsylvania).

This package stands as a monument of financial nation building. The creation of a permanently funded debt bound the interest of bondholders to the prosperity of the federal government. Madison raised qualms concerning Hamilton’s refusal to refund the original government bondholders, many of whom were destitute veterans who had sold their bonds in times of great distress, to be reminded by his erstwhile colleague that the buying and selling of bonds implicitly involves the rights to profit and loss resulting therefrom, a principal of American finance that persists to this day.

Hamilton had pursued the idea of a national bank since he worked as an aide de camp to George Washington. Now installed at the head of the most powerful executive department, he saw the easy availability of capital as necessary to promoting American manufacturing. Wealthy southern aristocrats, espousing an ingrained suspicion of northern commerce, sternly resisted the establishment of a national bank, coalescing behind Secretary of State Thomas Jefferson’s arguments that the power to found a national bank was not expressly given to Congress in the nation’s charter. Madison, the preeminent occupant of the House of Representatives, concurred.

In response, Hamilton reminded his collaborator on the Federalist Papers of the “necessary and proper clause” (referred to by its detractors as the “elastic clause” and appearing at the end of Congress’s enumerated powers in Section 8 of Article I), which states that the federal legislature shall possess all powers which are necessary and proper to carrying its explicit prerogatives into effect. Furthermore, the Treasury Secretary wryly foregrounded passages of Federalist #44, in which an explication of the “necessary and proper” clause ascribed to Madison seems to sanction the spectrum of implied powers that Hamilton was now claiming to create a national bank.

After this nascent feud between Hamiltonian “Federalists” and Jeffersonian “Republicans” broke out into all out partisan warfare throughout the turbulent 1790s, the controversy surrounding the constitutionality of Hamilton’s beloved institution was revived by McCullough v. Maryland, an 1817 Supreme Court case. The state of Maryland, chafing under the auspices of the Bank of the United States, had in effect tried to tax it out of existence. Declaring prophetically that “the power to tax is the power to destroy,” Chief Justice John Marshall, writing for the majority, declared Congress’s implied powers to establish a national bank valid under the necessary and proper clause, buttressing the interpretation advanced by Madison in 1788.

The overwhelming verdict of historians, and I should think of common observance, dictates that this reading was essential to laying the foundations of a national government. It is difficult to imagine Hamilton succeeding in his herculean task if he were limited to the powers explicitly mentioned in the Constitution.

Nevertheless, one wonders whether it might be best to approach such precedents as McCullough vs. Maryland as tensed. That is to say that such decisions were appropriate to the needs of the nation during its uncertain infancy. With the emergence of a peerless national security apparatus, it seems as if a reversion to strict constructionism and a scrupulous adherence to the civil liberties codified by the Bill of Rights (the latter of which should no doubt remain constant) represents the best ideological course of action for the federal government.

Might that not be one of the graceful wonders of our founding document? Its brevity and its relative lack of specificity allow us to mold our treatment of it to the needs of a particular time period (cf. the Warren Court’s whirlwind of civil rights precedents during the Civil Rights Movement of the 1960s). Though such a flippant attitude no doubt makes Tea Partiers cringe, it might today be employed to embrace their particular brand of political activism.


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