Jefferson v. Hamilton, federal powers, and the Marshall Court

Jefferson and Hamilton

Alexander Hamilton and Thomas Jefferson were the most prominent representatives of two contrary interpretations of the U.S. Constitution. Two landmark Supreme Court cases, Marbury v. Madison (1803) and McCulloch v. Maryland (1819), show the relative influences of these two interpretations on American political thought.

Jefferson was a strict constructionist. He desired a limited government, and thought Congress should be restricted to the enumerated powers of the Constitution. In 1787, he wrote to James Madison from Paris, “I own I am not a friend to a very energetic government. It is always oppressive.”

Hamilton, on the other hand, believed in a strong and energetic central government. He thought Congress should have more legislative powers than those expressly stated in Section 8 of the first article of the Constitution. He also favored a strong executive power.

Jefferson and Hamilton became political rivals. In 1818, explaining the notes taken during his tenure as Secretary of State (Hamilton was Secretary of the Treasury at the time), Jefferson remembered, “Hamilton was not only a monarchist, but for a monarchy bottomed on corruption.”

The two politicians squared off when arguing about the constitutionality of a national bank before the legislature in 1791, and that instance best displayed their different interpretations of the Constitution. The argument centered around a part of the Constitution that has become famously known as the “necessary and proper” clause.

The last power of Article 1, Section 8 of the U.S. Constitution reads, “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.”

According to Jefferson, the establishment of a national bank was illegal under the Constitution. His argument before Congress was unsuccessful but legally sound and compelling. He said, “The second general phrase is, ‘to make all laws necessary and proper for carrying into execution the enumerated powers.’ But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient’ for effecting [sic] the enumerated powers.” In addition to this logical argument, Jefferson claims that the Constitutional convention specifically rejected the power to erect a bank, because it would cause the Constitution to be rejected by the states.

Alexander Hamilton’s response to Jefferson’s interpretation, which today brings to mind Bill Clinton’s “depends on what the meaning of the word is is” defense, was to alter the meaning of the word “necessary.” With tortured logic, Hamilton explained that “necessary often means no more than needful, requisite, incidental, useful, or conductive to.” He argued as if the Constitution was not a deliberate legal document, but a casually rendered text of hyperbole, a rubber instrument open to broad interpretations.

Government tends to expand its own powers to the furthest extent tolerated by a majority of citizens. As Hamilton’s program proceeded, so did this tendency in the United States; Marbury v. Madison and McCulloch v. Maryland help to commemorate this procession.

In Marbury v. Madison, Chief Justice John Marshall wrote the decision against Jefferson’s administration. Jefferson was upset by the decision, but he was not entirely opposed to its points. Reacting to the Constitution in 1787, Jefferson wrote in a letter to Madison, “I like the negative given to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose, or invested with a similar and separate power.” The Marbury v. Madison decision established Jefferson’s wish precisely, judicial review, which is the ability of the Supreme Court to declare a law unconstitutional and void.

As a strict constructionist, however, Jefferson believed that the Constitution meant what it said, and was alarmed by Marshall’s claim in Marbury v. Madison that “it is, emphatically, the province and duty of the judicial department, to say what the law is.” According to Jefferson, this dangerously opened the Constitution to liberal interpretations like Hamilton’s.

If in 1803 Marbury v. Madison lobbed Jefferson’s strict constructionist interpretation, McCulloch v. Maryland batted it to oblivion in 1819. The issue hotly debated by the political giants in Congress twenty-nine years earlier, the constitutionality of a national bank, again entered the national political arena, this time in the Supreme Court. Marshall wrote the decision. He affirmed Hamilton’s interpretation of the “necessary and proper” clause, instituting the implied powers of Congress.

These decisions effectively turned the Constitution into the glass-encased relic it is today, and made the United States government one of men, and not of laws. The judges of the Supreme Court, appointed for life by the President and confirmed by a majority of the Senate, granted themselves in Marbury v. Madison the power “to say what the law is” in 1803, after which any statute wished for by the President and a majority of Senators, however offensive to the Constitution, could be legally enacted, so long as there were sufficient vacancies in the Supreme Court to procure a majority of like-minded judges. Congress was granted implied powers by McCulloch v. Maryland in 1819. Despite John Marshall’s lip-service to the Constitution in McCulloch v. Maryland, “its limits are not to be transcended,” his decision legally ended constitutionally limited government in the United States. The Marshall Court assented to Hamilton’s interpretation, and killed Jefferson’s. Jefferson knew he was defeated, and called upon the democratic forces of the people to reinstitute a strict constructionist interpretation of the Constitution. That call remains unanswered.

Works Referenced

Hamilton, Alexander. “Opinion on the Constitutionality of a National Bank”. 1791.Dolbeare, Kenneth M. and Michael S. Cummings, Ed. American Political Thought. Fifth Edition. Washington, D.C.: CQ Press, 2004.

Jefferson, Thomas. “Explanations of the 3. volumes bound in marbled paper”. February 4, 1818. Thomas Jefferson Writings: pp. 661-673. New York: Library of America. 1984.

Jefferson, Thomas. “Opinion on the Constitutionality of a National Bank”. February 15, 1791. Thomas Jefferson Writings: pp. 416-421. New York: Library of America. 1984.

Jefferson, Thomas. “To James Madison”. Paris, Dec. 20, 1787. Thomas Jefferson Writings: pp. 914-918. New York: Library of America. 1984.

Marshall, John. “Marbury v. Madison”. 1803. Dolbeare, Kenneth M. and Michael S. Cummings, Ed. American Political Thought. Fifth Edition. Washington, D.C.: CQ Press, 2004.

Marshall, John. “McCulloch v. Maryland”. 1819. Dolbeare, Kenneth M. and Michael S. Cummings, Ed. American Political Thought. Fifth Edition. Washington, D.C.: CQ Press, 2004.  I also referenced the full arguments and decision of this case available at: “

Open bailout opposition letter to Congress

Stolen from you by U.S.

“That government is best which governs the least, because its people discipline themselves.” – Thomas Jefferson

There is a lot of hype in Washington this week, a lot of short-term thinking, but very little honest reflection and philosophically sound governance based on the long term prospects of the American economy.  Jefferson was right: our financial markets have fallen into a cycle of government dependence and therefore no longer discipline themselves.  The American economy has lived beyond its means; to deny this is to declare yourself ignorant and unfit to govern.  We have floated on a cloud of credit, and believed ourselves to be in heaven, and though we have ventured far from earth, the latest liquidity squeeze has allowed us to see just how far we must fall when our economy’s bill comes due.  Though the $700,000,000,000 proposal before you may indeed postpone the payment date, the American people will eventually have to pay dearly for living on money that has been given value–not by production–but by irrational faith, and you can be certain that every postponement will make that future payment more painful than it would be today.  Do not be convinced that there are no free market solutions to this crisis.  The unspeakable ideal of economic freedom will pump more liquid capital into our financial markets than the government ever could, and more importantly, the money generated by such a system would be sound and valuable.  The chronic risks of moral hazard and inflation this bailout poses far outweigh the risks of a brief credit crisis caused by market-liquidated debt.

We cannot become wiser before we admit that we have been foolish in the past.  Market interference was, in most instances, foolish.  The Community Re-Investment Act was foolish.  Taxing capital gains was foolish.  Turning over Congress’ constitutional money-coining responsibility to a private, secretive organization was foolish.  Encouraging irresponsible lending through never-ending taxpayer bailouts was foolish.  Artificially low interest rates were foolish.  Price manipulation was foolish.  Giving up on sound money was foolish.  Losing faith in freedom was foolish.  Ours, however, is not a fated existence.  Nowhere is it written in stone that we must remain foolish, or that we cannot obey Constitutional principles.  If, as Senator John McCain likes to say, you “came to Washington to change Washington,” now is your chance to realize your lofty dreams.  Crisis is the proper time for reform.  Now is the time to embrace real capitalism.  The American people should not be told to fear freedom, as they are being told now, but to embrace it.  The time has come for Americans to be rewarded for their own successes, and held accountable for their own mistakes.  The time has come for the ambitious legislators in Washington to stop fiscally abusing the children of this nation.

1994, 2000: Remembering the words of Goldwater and Reagan, American median voters want smaller government and balanced budgets, so they elect Republicans; in return, they receive the most rampant growth in government (and public debt) this continent has ever known.  2006: the median American voters want out of a conflict that is unrelated to their security or welfare, so they elect Democrats; in return, the war’s funding is not cut off but greatly increased.  2008: the American people want no taxpayer bailouts, they want to end the bubble-blowing policies of the Federal Reserve, and they want to stop the growing cycle of debt that has ruined a once free economy; in return, they are presented with the largest taxpayer bailout ever, a more powerful and secretive central bank, the largest economic bubble-blowing scheme ever contrived, and more debt than they can ever afford to pay off.

The blindfold has been removed from the American people.  They are awakening to a pattern that reveals self-government as a myth.  The extraordinary actions of the federal government are only serving to remove its mask, revealing its nationalist, socialist, imperialist, authoritarian, unresponsive, evil face.  We can accurately predict that, on matters of true importance, when a particular course of action is supported by more than 70% of the American people, their government will pursue the opposite course, pretending the people are a force of no consequence–an attitude to be expected of King Louis’ court, but not of a republic’s elected leaders.  I need not remind you of the French response to that attitude.  The United States government has lost so much legitimacy that it may not survive the latest proposal, should it pass.  The American people are well-aware of the truly criminal nature of any financial bailout; a huge one will both injure and offend them.  Moreover, it will not come without consequence; their lanterns are burning, their pitchforks are raised, and they are prepared to halt the criminal acts of this government, should it become necessary for them to do so.

Thomas Jefferson on “implied powers” of the Congress

Constitutional Convention

Thomas Jefferson gave his opinion on the Constitutionality of a national bank on February 15, 1791. In that testament, he not only provided a brilliant legal argument against the institution of a national bank; he also explained the intent of the Constitution’s two most controversial phrases. Today’s political analysts exchange differing opinions on the “general welfare” and “necessary and proper” clauses, but Jefferson’s explanations of them are more than a matter of opinion; they reveal the true intent of the American republic’s framers. Here is Jefferson’s historic opinion (verbatim, even the italics were added by Jefferson–not me–for emphasis):

1. To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose.

To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please.

It is an established rule of construction where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless. Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is known that the very power now proposed as a means was rejected as an end by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in debate was, that then they would have a power to erect a bank, which would render the great cities, where there were prejudices and jealousies on the subject, adverse to the reception of the Constitution.

2. The second general phrase is, “to make all laws necessary and proper for carrying into execution the enumerated powers.” But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are “necessary,” not those which are merely “convenient” for effecting the enumerated powers.

Jefferson makes it clear that much of what the Congress does today is not allowed by the Constitution.

“It is their right, it is their duty…”

The revolution is never over.

“…to throw off such government, and to provide new guards for their security.” – Thomas Jefferson

When Thomas Jefferson wrote the Declaration of Independence, and when our framers ventured into the realm of a constitutional republic, they did so at great risk, seeking great reward.

The United States was founded on Jefferson’s philosophy, along with Thomas Paine’s.  “Every generation,” Jefferson wrote, “needs a new revolution,” because, as Paine noted, “when we are planning for posterity, we ought to remember that virtue is not hereditary.”

Just as virtue is not hereditary, neither is constitution.  “The American constitutions are to liberty, what a grammar is to language,” reflected Paine.  “They define its parts of speech, and practically construct them into syntax.”  Just as a proper sentence requires attention to grammar, a proper liberty requires attention to constitution.  The failure to attend to grammar is perhaps an insult to the educational system, but the neglect shown toward constitution today is an affront extending beyond the realm of man–an offense to the Author of the laws of nature, wretchedly declaring that the senseless mob of human majority can overrule the mandates of God.

Whose right and whose duty is it to throw off a government that ignores constitutional liberties?  The civilian military first and foremost, for they have taken an oath to protect, preserve and defend the Constitution of the United States against all enemies, foreign and domestic (this would include the FBI, CIA, President, Congress, and federal courts, when these groups extend their powers beyond constitutional limits); but ultimately the right and duty lie where the expense must fall–with the people.  What is the expense?  How much are we willing to give up to cling to liberty?  I yield again to Paine, who wrote, “can we but leave posterity with a settled form of government, and independent constitution of its own, the purchase at any price will be cheap.”  The ends (constitution) justify the means, which I hope will be peaceful, but control is rarely so yielded.

Regardless of the nature of the struggle, I will always stand on the side of constitutional individual liberty.  The natural moral code, given to us by God, requires that we disobey unjust laws, which now emanate from Washington DC with alarming regularity.  If this reads as a threat to the federal government’s usurpation of power, I have written with clarity.  In Jefferson’s words: “When the people fear the government, there is tyranny.  When the government fears the people, there is liberty.”  All Americans, an overwhelming majority of whom have expressed their malcontent for Congress and the President, should together declare war against the current tyrants, who have unwisely declared war on our cherished Constitution of liberty.  Their supposed guards, if they find in themselves a single ounce of civic virtue, or a hint of concern for their fellow person, will certainly be leading the charge.  The others, who will read this and call it sedition, are the Redcoats of the new revolution, and should be pitied for their lack of faith in humankind.