Volume IV Part 33 (2/2)
The first Congress pa.s.sed the act to incorporate a National bank. The whole subject was at the time debated exhaustively. ”The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, & pa.s.s un.o.bserved,” says Marshall. Moreover, it had been carefully examined with ”persevering talent” in Was.h.i.+ngton's Cabinet. When that act expired, ”a short experience of the embarra.s.sments” suffered by the country ”induced the pa.s.sage of the present law.” He must be intrepid, indeed, who a.s.serts that ”a measure adopted under these circ.u.mstances was a bold and plain usurpation, to which the const.i.tution gave no countenance.”[814]
But Marshall examines the question as though it were ”entirely new”; and gives an historical account of the Const.i.tution which, for clearness and brevity, never has been surpa.s.sed.[815] Thus he proves that ”the government proceeds directly from the people; ... their act was final.
It required not the affirmance, and could not be negatived, by the state governments. The const.i.tution when thus adopted ... bound the state sovereignties.” The States could and did establish ”a league, such as was the confederation.... But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, ... acting directly on the people,” it was the people themselves who acted and established a fundamental law for their government.[816]
The Government of the American Nation is, then, ”emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit”[817]--a statement, the grandeur of which was to be enhanced forty-four years later, when, standing on the battle-field of Gettysburg, Abraham Lincoln said that ”a government of the people, by the people, for the people, shall not perish from the earth.”[818]
To be sure, the States, as well as the Nation, have certain powers, and therefore ”the supremacy of their respective laws, when they are in opposition, must be settled.” Marshall proceeds to settle that basic question. The National Government, he begins, ”is supreme within its sphere of action. This would seem to result necessarily from its nature.” For ”it is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts.” Plain as this truth is, the people have not left the demonstration of it to ”mere reason”--for they have, ”in express terms, decided it by saying” that the Const.i.tution, and the laws of the United States which shall be made in pursuance thereof, ”shall be the supreme law of the land,” and by requiring all State officers and legislators to ”take the oath of fidelity to it.”[819]
The fact that the powers of the National Government enumerated in the Const.i.tution do not include that of creating corporations does not prevent Congress from doing so. ”There is no phrase in the instrument which, like the articles of confederation, _excludes_ incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.... A const.i.tution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public.”
The very ”nature” of a const.i.tution, ”therefore requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those _objects be deduced from the nature of the objects themselves_.” In deciding such questions ”we must never forget,” reiterates Marshall, ”that it is a _const.i.tution_ we are expounding.”[820]
This being true, the power of Congress to establish a bank is undeniable--it flows from ”the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.” Consider, he continues, the scope of the duties of the National Government: ”The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government.... A government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarra.s.s its execution by withholding the most appropriate means.”[821]
At this point Marshall's language becomes as exalted as that of the prophets: ”Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed.” Here Marshall the soldier is speaking. There is in his words the blast of the bugle of Valley Forge.
Indeed, the pen with which Marshall wrote M'Culloch _vs._ Maryland was fas.h.i.+oned in the army of the Revolution.[822]
The Chief Justice continues: ”Is that construction of the const.i.tution to be preferred which would render these operations difficult, hazardous, and expensive?” Did the framers of the Const.i.tution ”when granting these powers for the public good” intend to impede ”their exercise by withholding a choice of means?” No! The Const.i.tution ”does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers.”[823]
Resorting to his favorite method in argument, that of repet.i.tion, Marshall again a.s.serts that the fact that ”the power of creating a corporation is one appertaining to sovereignty and is not expressly conferred on Congress,” does not take that power from Congress. If it does, Congress, by the same reasoning, would be denied the power to pa.s.s most laws; since ”all legislative powers appertain to sovereignty.” They who say that Congress may not select ”any appropriate means” to carry out its admitted powers, ”take upon themselves the burden of establis.h.i.+ng that exception.”[824]
The establishment of the National Bank was a means to an end; the power to incorporate it is ”as incidental” to the great, substantive, and independent powers expressly conferred on Congress as that of making war, levying taxes, or regulating commerce.[825] This is not only the plain conclusion of reason, but the clear language of the Const.i.tution itself as expressed in the ”necessary and proper” clause[826] of that instrument. Marshall treats with something like contempt the argument that this clause does not mean what it says, but is ”really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers”--a denial, in short, that, without this clause, Congress is authorized to make laws.[827] After conferring on Congress all legislative power, ”after allowing each house to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind ... of the convention that an express power to make laws was necessary to enable the legislature to make them?”[828]
In answering the old Jeffersonian argument that,[829] under the ”necessary and proper” clause, Congress can adopt only those means absolutely ”necessary” to the execution of express powers, Marshall devotes an amount of s.p.a.ce which now seems extravagant. But in 1819 the question was unsettled and acute; indeed, the Republicans had again made it a political issue. The Chief Justice repeats the arguments made by Hamilton in his opinion to Was.h.i.+ngton on the first Bank Bill.[830]
Some words have various shades of meaning, of which courts must select that justified by ”common usage.” ”The word 'necessary' is of this description.... It admits of all degrees of comparison.... A thing may be necessary, very necessary, absolutely or indispensably necessary.”
For instance, the Const.i.tution itself prohibits a State from ”laying 'imposts or duties on imports or exports, except what may be _absolutely_ necessary for executing its inspection laws'”; whereas it authorizes Congress to ”'make all laws which shall be necessary and proper'” for the execution of powers expressly conferred.[831]
Did the framers of the Const.i.tution intend to forbid Congress to employ ”_any_” means ”which might be appropriate, and which were conducive to the end”? Most a.s.suredly not! ”The subject is the execution of those great powers on which the welfare of a nation essentially depends.” The ”necessary and proper” clause is found ”in a const.i.tution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.... To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circ.u.mstances.”[832]
The contrary conclusion is tinged with ”insanity.” Whence comes the power of Congress to prescribe punishment for violations of National laws? No such general power is expressly given by the Const.i.tution. Yet n.o.body denies that Congress has this general power, although ”it is expressly given in some cases,” such as counterfeiting, piracy, and ”offenses against the law of nations.” Nevertheless, the specific authorization to provide for the punishment of these crimes does not prevent Congress from doing the same as to crimes not specified.[833]
Now comes an example of Marshall's reasoning when at his best--and briefest.
”Take, for example, the power 'to establish post-offices and post-roads.' This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another.
And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment.
”The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be ill.u.s.trated by numerous examples drawn from the const.i.tution, and from our laws. The good sense of the public has p.r.o.nounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his const.i.tutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise.”[834]
To attempt to prove that Congress _might_ execute its powers without the use of other means than those absolutely necessary would be ”to waste time and argument,” and ”not much less idle than to hold a lighted taper to the sun.” It is futile to speculate upon imaginary reasons for the ”necessary and proper” clause, since its purpose is obvious. It ”is placed among the powers of Congress, not among the limitations on those powers. Its terms purport to enlarge, not to diminish the powers vested in the government.... If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on the vast ma.s.s of incidental powers which must be involved in the const.i.tution, if that instrument be not a splendid bauble.”[835]
Marshall thus reaches the conclusion that Congress may ”perform the high duties a.s.signed to it, in the manner most beneficial to the people.”
Then comes that celebrated pa.s.sage--one of the most famous ever delivered by a jurist: ”Let the end be legitimate, let it be within the scope of the const.i.tution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the const.i.tution, are const.i.tutional.”[836]
Further on the Chief Justice restates this fundamental principle, without which the Const.i.tution would be a lifeless thing: ”Where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pa.s.s the line which circ.u.mscribes the judicial department, and to tread on legislative ground. The court disclaims all pretensions to such a power.”[837]
The fact that there were State banks with whose business the National Bank might interfere, had nothing to do with the question of the power of Congress to establish the latter. The National Government does not depend on State Governments ”for the execution of the great powers a.s.signed to it. Its means are adequate to its ends.” It can choose a National bank rather than State banks as an agency for the transaction of its business; ”and Congress alone can make the election.”
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