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How To Properly Interpret the Constitution – One Long Debate January 18, 2011

Posted by Bill in Constitution, Current Events, Politics.
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With all the debate about whether the healthcare bill is really Constitutional I thought it might be fun to take a look at a more basic question that directly relates to our current debate; is the Constitution meant to be interpreted narrowly or is it meant to be interpreted broadly with powers being inferred from the enumerated powers?

Now, despite some of the rhetoric floating around, our founders – even the ones who helped write the Constitution – disagreed on this question.  Both Thomas Jefferson and James Madison argued for a narrow interpretation; George Washington, Alexander Hamilton, and John Adams a broader view.

A slight digression here while I wonder aprint at the seeming conflict between Madison’s initial belief that the Bill of Rights was not needed as all of these rights and more could be inferred from the Constitution and his belief that the Constitution should be interpreted narrowly.  One of my many research goals is to learn more about Madison and his thoughts here to see how he did reconcile them.  End of my wondering.

 To go through the whole history of debate, legislation, and court rulings on this topic would turn this blog into a book. So let me instead just focus on one issue; actually it is the first issue that created this debate on how to properly interpret the Constitution. 

In 1790 Alexander Hamilton proposed the creation of a National Bank to the first Congress.   The intent in creating this bank was to bring financial order out of the chaos that then existed.  After the revolution the government had no money and most of the states had accumulated severe debt loads in financing the revolution. 

The problem lay in that the creation of such a bank was not specifically enumerated in the Constitution, a fact that some of the Southern representatives – who felt, justifiably, that such a bank would provide more benefits to the Northern industrial states than they would to the Southern agricultural states – strongly opposed.

Both Thomas Jefferson and James Madison argued that since the power to create such a bank was not explicitly given to Congress by the Constitution it was therefore unconstitutional.  A rather simple argument. 

Alexander Hamilton on the other hand argued that a more correct reading of the Constitution would be one that acknowledges that in addition to the explicit powers granted to the President and Congress there are,of necessity, implicit powers granted too; namely those powers necessary for the Congress and President to fully implement their explicit powers.   

Eventually the bill reached President Washington who polled his cabinet on what they thought about it’s Constitutionality.  It is interesting that his Attorney General, Edmund Randolph, sided with Jefferson and Madison in stating that it was unconstitutional. 

In the end though Washington found Hamilton’s arguments the more persuasive and signed the bill into law. 

Eventually though the National Bank died.  It did so when its chartered expired in 1819 under then President James Madison and failed to be re-chartered by one vote in the House. 

What is really interesting here though is that James Madison, as President, revived the Bank as the Second Bank of the United States after having first strongly opposed its predecessor’s creation.  He did so due to the rising debts from 1812 and the ineffectiveness of state banks. 

Now for a middling long aside:

So, James Madison, who argued against the initial creation of the bank on the basis of a narrow reading of the Constitution also then revived it when he became President.  What caused the change in Madison’ thinking? 

I don’t know. That is part of that same research project that I mentioned earlier in this blog. 

I will say though that something similar happened to Jefferson when he became President – his views seemed to change and what he once opposed as unconstitutional became constitutional in his mind. 

All of this is why I have stated many times that when arguing from the intent of the founders one must also ask which founder and at what point in time.

End of middling long aside.

After the National Bank was revived it was challenged in the Supreme Court and in 1819, in the case of McCulloch v. Maryland, The Supreme Court found in favor of the creation of the National Bank and a broad interpretation of the Constitution correct. 

Chief  Justice John Marshall’s written ruling is very instructive in regards to our modern debate on how to properly read and interpret the Constitution.  Which is why I am about to quote extensively from it as well as provide a link to the complete ruling. 

All quotes from this ruling are from 

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZO.html

“[A] criterion of what is constitutional, and of what is not so … is the end, to which the measure relates as a mean. If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority. There is also this further criterion which may materially assist the decision: Does the proposed measure abridge a pre-existing right of any State, or of any individual? If it does not, there is a strong presumption in favour of its constitutionality….”

In other words the Constitution gives Congress implied powers to implement the Constitution’s expressed powers.   

In this particular case the court ruled that the Necessary and Proper clause was ” …not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.”

and

“A Constitution, 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 the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, 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. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.”

Now in our modern debates , I have also often heard the 10th amendment invoked in explaining why a certain policy or bill is unconstitutional.  This also was addressed by at Marshall:

“Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But 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. Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,” thus leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles [p407] of Confederation, and probably omitted it to avoid those embarrassments.”

Further he stated that the Constitution is a document that is built to evolve and adapt to a changing world.

“This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. 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 circumstances.”

Let me end this rather long blog by posting one more bit from Justice Marshall’s ruling:

“This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist.”

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