Chapter 36

"These suggestions are made, not so much as a recommendation, as with a view of calling the attention of congress to the possible modifications of a system, which cannot continue to exist in its present form without occasional collisions with the local authorities, and perpetual apprehensions and discontent on the part of the states and the people."

When the president's views, as here disclosed, are analyzed, they seem to involve the following propositions, to each of which we will give a separate consideration.

1. That the present Bank of the United States is unconstitutional.

2. That it exercises a dangerous influence.

3. That it creates discontent with the people, and collisions with the states.

4. That such a bank as is proposed in its place, is free from all these objections.

1. On the constitutionality of the bank, we have little to add to the remarks made on the subject in our last number. The arguments then urged having received no answer, and being, as we conceive, unanswerable, we must consider that the more the question is investigated, the more it will be found that a power which has been recognised by every branch of the government, and at some time or other, by every party that has administered the affairs of the nation, will be found to be correct. We cannot, however, forbear to add one other, because of its peculiar fitness to the present occasion.

It is known, that the power of the general government to establish a national bank, mainly turns on that clause of the Constitution of the United States, which gives congress the power "to make all laws which shall be _necessary and proper_ for carrying into execution" the powers specifically granted--one party deducing the constitutionality of the bank from a liberal interpretation of the word "necessary," and the other drawing the opposite inference from their interpreting the same word in a narrower sense; both reasoning justly from their respective premises, and both agreeing, that on the true meaning of that term, rest the merits of the controversy.

Whenever a doubt occurs about the meaning of a phrase in a written instrument, it has always been considered a good rule of interpretation, to refer to the use of the same phrase in other parts of the same instrument, for the purpose of discovering the sense attached to it by those who used it. Applying this rule, we find in the article concerning the duties and powers of the president, (3d section) that "he shall, from time to time, give to the congress information of the state of the Union, and recommend to their consideration such measures as he shall judge _necessary and_ expedient." It is by virtue of this power thus granted, and of this alone, that the president has recommended the creation of a new bank to the legislature. Now, it will not be pretended that he could have judged this recommendation to be _necessary_, in the strictest sense of the term, but at most, that it was highly useful and important. It must then be admitted, either that the narrow interpretation of the word "necessary," relied on by those who deny the constitutionality of the bank, is erroneous, or that the president himself has violated the constitution in the recommendation he has made. If it be insisted, that he had the constitutional right to recommend a measure, which both houses of congress had pronounced highly inexpedient, because he believed it prudent, and politic, and salutary--the ground on which he himself places it--then the same liberal interpretation of the term "necessary," which we admit to be the true one, will make the bank constitutional. We have resorted to this rule, not so much because it furnishes an argument _ad hominem_ which is irresistible, as for the higher purpose of throwing light on one of the most controverted parts of the constitution.

But admitting, for the sake of argument, the constitutionality of the bank to be one of those difficult and complicated questions about which men's minds may always be divided, and that there are reasons on either side, sufficient, if not to convince, to perplex and bewilder, and to afford pretexts for those who seek some sinister or selfish ends--and of such character are most constitutional questions--we would ask, if this is never to have a termination? Are questions of this kind to be always unsettled, so that no length of time, however sufficient to quiet private controversies, shall put an end to those which most nearly concern the tranquillity and permanence of the Union?

On this subject of constitutional questions generally, we would trespass awhile on the patience of our readers. It involves far higher considerations than whether this or that individual shall be president--this party or that shall exert a transient sway over the destinies of the country. Our remarks are independent of men, or times, or circumstances; and they are addressed to men of no party--to the intelligent and patriotic of all parties--to that fund of good sense which has ever characterized this nation.

As every officer of the government takes an oath to support the constitution, his conscience is appealed to, and that which he honestly and truly believes to be the meaning of the obligation he has incurred, must influence his votes and acts under the constitution. It is seriously and earnestly maintained by many of our citizens, that every man's own interpretation of the constitution must be his guide; and no matter what the public tribunals have determined--no matter for what length of time, or by what degree of unanimity a particular interpretation may have prevailed, it is to weigh as nothing with him, so far as it seems contrary to the conviction of his own mind. But is this a true understanding of the character of a written constitution, and of the oath which it enjoins? If so, would not the means devised to secure its more faithful observance be the most likely to defeat its provisions; and would it not make such a constitution the most impracticable and absurd form of government that human folly ever devised? Let us consider the consequences of this doctrine.

In the first place, let us call to mind the great number of constitutional questions which have arisen during the short period of little more than forty years, since the Federal government went into operation. In General Washington's administration, the most prominent of those questions were suggested by the establishment of a national bank--by the carriage tax--the proclamation of neutrality--and the appropriations to carry the British treaty into effect: in that of Mr. Adams, the elder, the alien and sedition laws: in Mr. Jefferson's, the repeal of the Judiciary law--the embargo for an indefinite period--the purchase of Louisiana: in Mr. Madison's, the United States Bank again, the power of the federal government over the militia of a state--the right of that government to construct roads: in Mr. Monroe's, the right in congress to pass the bankrupt law--to lay a duty on imports for the encouragement of manufactures--to appropriate money for the relief of the poor of the district of Columbia: and in Mr. John Quincy Adams's, the Cherokee treaty--the nullification doctrine--the power of appointing public officers, together with several of the others previously mentioned.

To these questions we might add many of minor importance or interest, and that multitude which have arisen and been decided in the Supreme Court of the United States. But if the number is already so great, what will it be a century or two hence? Let it be remembered, too, that each of these legislative questions may give rise to many others connected with them, and that each one may be multiplied to infinity in the courts of justice. Thus, if protecting duties for the encouragement of manufactures are unconstitutional, the duty claimed on every bale of imported goods may be called in question.

Whenever, then, any of these constitutional questions can be made, it would be competent for the party interested, by the doctrines of these political puritans, to make them. So that in every controversy, public or private, every conflict of right or interest, as the question of constitutionality would be completely open to the judge, and in criminal cases, to the jury, either party may take his chance of success by urging that interpretation of the constitution which best suits him, and the same question would, of course, be decided one way in one place, and another way in another. One man would be convicted for an offence for which another would go unpunished; and one citizen, or one state, be subjected to taxes under the constitution, from which others would be shielded by the same instrument.

Does any one doubt, that if a constitution is left to the unrestricted interpretation of every one who swears to support it, there would be this diversity? Let him look at the various commentaries on the same text in the New Testament. Let him look at the various interpretations of the same decrees of the Senate by the Edicts of the Pretors in Roman jurisprudence--to say nothing of those countless decisions of the civil law, by which, before the time of Justinian, it was buried beneath its own rubbish. Let him look at the voluminous reports in our own language on the written, as well as common law--on the infinite number of questions that have arisen, and are yet arising on a single statute, or even one of its sections,--let him consider these apposite examples, and ask whether our constitution is likely to share a different fate? Such, indeed, is the indefinite nature of language, the ever-varying character of human concerns, and the subtlety of the human intellect, that it is utterly impossible to pen a constitution on which numerous questions would not arise, which no sagacity of man could foresee, and which his language is too vague to provide for.

Constitutional questions then must arise, and the true point of inquiry is, whether our constitution meant that they should be finally settled, or whether they are to remain suspended between heaven and earth, until they are compelled to make their appearance by the necromancy of legal subtlety, or occasionally laid in the Red Sea.

But the evil would not stop with the federal government. We know that each state has also its own constitution, and that if their legislatures or executives transcend their powers, their acts, by the doctrines we are considering, are utterly void. They cannot exceed the limits of their charter, and those limits they have no exclusive right to define. Who that has attended the deliberations of a state legislature, and remarked the frequent recurrence of constitutional questions about their powers, but must see that there is scarcely any law concerning property, or office, or crime, on which ingenuity may not raise a doubt respecting either the letter or spirit of the constitution? And the same uncertainty and want of uniformity which would arise in the federal government, would arise in a much greater ratio in that of a state; so that no man could say certainly what were his duties or his rights. If such a state of things may now ensue, how would it be when the population of a single state should amount to several millions, and when the spirit of litigation, united with the extension of legal science, would give more than Norman acuteness to our constitutional lawyers? When that era shall arrive, if this quibbling spirit that is now so rife, shall not receive a timely check, where is the law, whose authority may not be questioned? Now is the time to arrest it, before our habits become indurated, and while our national character has that ductility which the changes our country is ever undergoing, naturally produces. Whoever is capable of taking a wide survey of human affairs, and of comparing ages and nations, must perceive that every generation of the civilized world is becoming more and more metaphysical--that the understanding is more appealed to, and has greater sway than formerly, and the imagination less. The age of magic, and witches, and ghosts, has passed away. That of poetry is on the wane. Speculation has taken the place of taste. What once passed unheeded, or was perceived only as it was felt, must now be analyzed, and sifted, and decompounded, until we have reached its elements, and a reason is required for every thing. Such is the spirit of the age, and it is eminently favourable to constitutional doubts and scruples.

We may already perceive the progress of this captious, inquisitive, hair-splitting spirit, in the brief chronicle of the federal government. When congress met, immediately after the formation of the constitution, in laying an impost, they endeavoured so to lay it, as to give encouragement to those species of industry for which the country seemed best suited, and their successors continued the same policy for about thirty years, when it was discovered, (we think by a member from Maine) that the policy was contrary to the constitution. The discovery was soon welcomed by many of the politicians of the South, and it has since been so cordially embraced by them, that the opposite opinion is now looked upon as downright political heresy.

A bankrupt law was passed during the first Mr. Adams's administration, by virtue of the express power given to congress on that subject. When Mr. Jefferson came into power, the law was repealed as inexpedient, because it was believed to produce as much fraud and mischief in some ways as it prevented in others. But nobody had then discovered that the law was unconstitutional. Yet in 1822, that doctrine was broached and zealously maintained by three or four members from the South, so as to induce Mr. Lowndes, who was himself opposed to a bankrupt law, to disavow the doctrines of his associates. That exemplary man, the character of whose mind was sufficiently inclined to refined speculation, if it had not been so tempered by candour and sound practical sense, never lost sight of the end of government, in his view of the means; and he believed that in interpreting the constitution, we ought not to look at it through a microscope, for this plain reason, if for no other, because those who are finally to decide on it look at it with their ordinary eyes. Accordingly, in the first half of his speech, he aimed to show that congress had the power to pass the law, and in the last, that they ought not to exercise it.

Again: Mr. Jefferson gave his sanction to the Cumberland road, to be made at the national expense, provided the states through which it would pass gave their express assent to it. The states of Virginia, Maryland, and Pennsylvania, did pass laws giving such consent. It was not then considered that congress had not the power of appropriating the money in the treasury to all purposes of general utility, provided they did not assume any other power, in the exercise of this; and it is clear that Mr. Jefferson did not think that the construction of a road, _with the consent_ of the states through which it passed, was such an exercise of power. Yet after the road was made, by this growing disposition to strict construction, it was discovered that congress had no power to make such appropriations, under the constitution, and if the power could not be derived from that instrument, the consent of the states interested could not give it. It is here worthy of remark, that many of those who maintained that the general government possessed the power of making roads, independently of the states, concurred in the preceding position; and thus a majority was obtained who agreed that congress could use the public money for no purpose, which they had not the independent power of executing. Each party hoped to derive strength by this decision. The one, because it advanced a step forward in strict construction; and the other, looking to the influence of the practical benefits to be derived from the exercise of the power of making roads and canals, flattered themselves that many, when they found themselves not able to attain their object by mere appropriations, would, rather than forego the promised benefits altogether, support a still more enlarged construction of the constitution; and the issue seems so far to have justified their expectations.

We will give one more example. It had been supposed that the vice-president, as presiding officer of the senate, had, by the force of the term itself, the power of keeping order and regulating the debate; yet three or four years ago, it was discovered by that officer, or some of his friends, that he did not possess that power, in certain cases, and he accordingly forbore to exercise it.

These remarks are made in no invidious spirit. We do not mean to give any opinions on these questions. In some of them, indeed, we scarcely know whether, in this age of nice discrimination, our impressions deserve to be called opinions. But we merely meant to refer to facts which are a part of the history of the country. They go to show, that constitutional doubts and difficulties are continually increasing, not only from the new positions and aspects of things in the endless vicissitudes of human affairs, but also by the progress of refinement in reasoning; because much is now considered unconstitutional that was not deemed so formerly.

If this doubting, disputatious spirit--this habit of questioning every thing whenever a quibble can be raised--should continue to advance, where is the law, which, after fighting its way through both houses of the legislature, and, perhaps, escaping the veto, may not be eventually contested and defeated? We know that in many of the states there are _Bills of Rights_, which are considered to have equal authority with their constitutions. Some, indeed, regard them as settling the principles of primordial law, which the constitution itself cannot countervail. These, then, may also be appealed to for the purpose of proving the unconstitutionality of a state law; and in the inferences which ingenuity, or even stupidity, may draw from such broad and indefinite principles, the clearest right may be disputed, and the most atrocious crime defended. The right of a community to take the life of any one of its citizens has been gravely denied, and the argument rests for its support on the imprescriptible and immutable rights of man. If the net-work of the laws shall be thus chafed and frittered away, little fish, as well as big ones, may break through it when and where they please.

We are aware, that, in the ordinary concerns of life, nature and reason will often assert their empire. They cannot be altogether cheated out of their rights by sophisms and quibbling. But the latter will but too often prevail. They have prevailed, are yet prevailing; and, if a barrier is to be presented to their further progress, it must be by the common sense of the nation, frowning into contempt this constitutional casuistry, which would degrade our legislative halls into schools of sophists--would employ the best powers of the human mind, not in clearing up doubts, but in creating them--which considers that the most obvious and direct meaning of the constitution is always the wrong one, and that what the convention made the people say by that instrument, can be understood but by one man in ten thousand, who cannot show he is right, but by a commentary a hundred times as large as the text. It must be by going further, and saying that after a question has been fully discussed and solemnly decided--after it has been recognised by every department of the government--and acquiesced in by the people, it should be considered as the best exposition the constitution is capable of, and as no longer open to controversy: and if the decision was wrong, according to a maxim of the common law, and which became common law only because it was common sense, the universality of the error makes it right.

Let it not be supposed, that if a false or inconvenient construction is put on the constitution, or its meaning is considered doubtful and uncertain, the evil may be corrected by an amendment. Supposing it to take place, may we not, like bad tinkers, in stopping one hole, make two? We can judge of the probable success of this course, by the various laws passed to alter, or amend, or repeal, previous emendatory acts. But if the remedy were effectual when attained, is it attainable? What probability is there that three-fourths of the states will concur in any amendment, or that motives of interest--of party sympathy--of delusive argument--or the mere _nonchalance_ of men about evils which are not immediately pressing, would not unite more than one-fourth of the states? Besides, if the constitution were always to be changed whenever a serious question of its construction arose, and amendments were as practicable as they are difficult, the time required for the operation would leave us nothing else to do. A century would scarcely suffice to settle the questions which may occur in a single year.

There is another mischief, of no insignificant character, which results from these excessive refinements in interpreting the constitution, and from the doctrine that no length of time can settle its meaning. They afford ready pretexts to cunning and timid politicians for screening their real motives from the people. When they wish to evade responsibility for their votes, they have nothing more to do than to plead scruples of conscience, and the sacred obligation of an oath. Where is the measure which a moderate degree of ingenuity may not show--we may almost say--has not shown to be against the words, or the meaning and spirit of the constitution? It is true, if the people distrust the sincerity of this plea of conscience, or disapprove it, they may remove their representative. But that remedy may come too late, and may not always be applied. The people have always shown great indulgence and forbearance towards this plea: besides, before the time of re-election comes about, these inconvenient scruples may, in the din of new contests, be forgotten, or remembered only to be forgiven, and, by the hocus pocus of party, even metamorphosed into a recommendation. When, then, it is so easy to take shelter behind the ark of the constitution, ought we to enlarge the limits of this place of refuge for cunning and cowardice?