The Originalist Predicament

It’s often said, particularly by people on the right, that the powers delegated to Congress are limited to those enumerated in Section 8 of Article I. Section 8, however, concludes with the necessary and proper clause, which stipulates that Congress shall have power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof.” To the “foregoing Powers,” that is, to those listed in Section 8, the clause adjoins the phrase “all other Powers,” reminding us that there are powers in the Constitution that are not enumerated in Section 8, a fact that becomes obvious by perusing the rest of the document. But the loophole lies in the “To make all Laws which shall be necessary and proper for carrying into Execution.” Here the Constitution allows the federal government some leeway in passing laws that serve as “necessary and proper” means toward achieving expressly bestowed constitutional ends. The clause was recognized as a loophole even before the Constitution was ratified: the Anti-Federalists called it “the sweeping clause,” often citing it in their opposition to ratification.

It was to the necessary and proper clause that Alexander Hamilton turned when he argued the constitutionality of a national bank. Although the Constitution does not expressly give the federal government the power to erect corporations, it does give it the ability, under the necessary and proper clause, to pass laws erecting a corporation as long as it is necessary and proper towards fulfilling one of the constitutionally enumerated functions. Or so Hamilton argued. His argument won the day. The bill that chartered the Bank of the United States was approved by the House of Representatives, 39-20, on February 8, 1791, having already passed the Senate on January 20. Washington could have vetoed the bill, but, after deeming it constitutional, signed it into law on February 25.

Thomas Jefferson opposed the founding of a national bank and argued that the power to erect corporations is “a right remaining exclusively with the states.” However, seizing on the word “exclusively,” Hamilton pointed out that the Constitution gives the federal government the power to “exercise exclusive Legislation in all Cases whatsoever over such district…[as may] become the seat of government of the United States,” as well as over all places used for the erection of forts, etc. Regarding this phrasing, Hamilton noted, in his “Opinion on the Constitutionality of a National Bank,” that “language does not afford a more complete designation of sovereign power, than in those comprehensive terms. It is in other words a power to pass all laws whatsoever, & consequently to pass laws for erecting corporations” within such a district. Hence it would seem that Jefferson is wrong when he claims that the ability to erect corporations is a right exclusively reserved by the states. Today, we tend to find Hamilton’s extremely liberal interpretation of the “exclusive legislation” provision shocking, even offensive. Against him we may note that “exclusive legislation” does not necessarily mean unrestrained or unlimited. For us, it comes down to stare decisis.

According to Hamilton, however, the ability to erect corporations does not depend on the “exclusive legislation” provision. Rather, he believed that it was the “necessary and proper” clause that gave Congress the right to do virtually anything, as long as it was necessary and proper to achieving constitutional ends. On this basis, he argued that erecting a national bank was necessary to the federal government’s power to effectively lay and collect taxes, particularly in relation to the mode of collecting them. After laying out his argument, he concluded “that the incorporation of a bank, like that proposed by the bill, would be a measure immediately relative to the effectual collection [his emphasis] of the taxes and completely within the province of the sovereign power of providing by all laws necessary and proper for that collection.” He further believed that the “institution of a bank has also a natural relation to the regulation of trade between the States.”

Who is right, Hamilton or Jefferson? Sometimes it comes down to how a single word is interpreted, in this case the word “necessary.” Jefferson argued that it meant “absolutely necessary”; Hamilton took issue with that. But that is the problem with the theory of originalism. Even when you go back to the beginning, it remains unclear how the Constitution should be interpreted.

Originalism is not a new theory. As far back as 1791, Jefferson noted that the power to erect corporations had been proposed and rejected by the convention. Because the ability to erect corporations was rejected by the convention, Jefferson argued that it could in no way be said that the power of incorporation was vested in the Constitution. But no sooner had Jefferson made this argument than it fell apart, as the delegates themselves could not agree on what had transpired at the convention. Hamilton describes the originalist dilemma in a single paragraph. I quote it in its entirety:

“What was the precise nature or extent of this proposition [to empower Congress to make corporations], or what the reasons for refusing it, is not ascertained by any authentic document, or even by accurate recollection. As far as any such document exists, it specifies only canals. If this was the amount of it, it would at most only prove, that it was thought inexpedient to give a power to incorporate for the purpose of opening canals, for which purpose a special power would have been necessary; except with regard to the Western Territory, there being nothing in any part of the constitution respecting the regulation of canals. It must be confessed however, that very different accounts are given of the import of the proposition and of the motives for rejecting it. Some affirm that it was confined to the opening of canals and obstructions in rivers; others, that it embraced banks; and others, that it extended to the power of incorporating generally. Some again allege, that it was disagreed to, because it was thought improper to vest in Congress a power of erecting corporations — others, because it was thought unnecessary to specify the power, and inexpedient to furnish an additional topic of objection to the constitution. In this state of the matter, no inference whatever can be drawn from it.”

With that, Hamilton laid out the case against originalism (or at least one of its major drawbacks). Not five years after the convention, people already disagreed about what the framers intended, including the framers themselves. How can we agree on what they intended, when they themselves did not agree with each other on what was intended?

Originalism, when advanced as a doctrine, springs from the notion that the founders agreed on the fundamentals. However, the case of the Bank of the United States makes it clear that Washington and Hamilton fundamentally disagreed with Jefferson and Madison on something as basic as whether or not the Constitution gives the federal government the power to erect corporations. Now I agree with originalism to the extent that it is important to go back to the beginning and try to discern what the founders thought and intended when they drafted the Constitution, but we must understand that this involves the disentangling of many contradictory threads. In this sense, originalism throws a great deal of light on the Constitution. However, I reject originalism if it pretends to be able to offer a definitive statement about the Constitution and how it should be interpreted. Going back to the founders is a matter of vital necessity for America, but doing so means recognizing how much the founders disagreed among themselves even about fairly basic things such as the power and scope of the federal government.


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