Divorcing Ourselves from Akhil Reed Amar (Part I)
Just a month ago, National Review (the supposed Gray Lady of the Right) ran a piece by Yale’s Akhil Reed Amar entitled Declaring Independence from Thomas Jefferson. The piece is a paean to centralized power imbued with presentism as Amar virtue signals and plays the role of Pied Piper as “conservative” lawyers and academics follow him to the land of the living Constitution. Amar is a staunch progressive, yet when one views his biography and list of engagements from the Federalist Society, one is left with the impression that he is some sort of conservative/originalist hero. I have no problem when the Federalist Society brings him in as the progressive voice in a debate with a conservative scholar, but in most of the FedSoc events, he is the only speaker and is selling his latest book. I’ve personally attended a FedSoc National Lawyer’s Convention and witnessed idolatrous worship of Amar and his work. In this post and those to follow—focusing on his latest article at NR—I hope to show why lawyers and academics should divorce themselves from Amar and stuff cotton in their ears when the Pied Piper plays.
Amar challenges Jefferson’s constitutional thought and states that it was “far less impressive than that of Washington, Hamilton, and Chief Justice John Marshall.” In making this argument, Amar emphasizes Hamilton’s plan to charter a national bank, which Amar describes as a “perfectly valid federal action.”
Let us set the stage. In 1791, Secretary of the Treasury Hamilton recommended that Congress establish a national bank. Hamilton described the bank as “an institution of primary importance to the prosperous administration of [national] finances, and would be of the greatest utility in the operations connected with the support of public credit.” Hamilton informed Congress that the “most enlightened commercial nations” had established national banks and that the United States should follow suit.
Hamilton recommended a bank with $10 million in capital and 25,000 shares of stock. Private investors would own 20,000 shares, with the national government holding the remainder. The bank would issue its own notes in excesses of its assets and thus engage in fractional reserve banking. Hamilton believed that gold and silver should not be a means of paying private debts and hoped that the country’s specie would be collected in the vaults of the national bank. Paper money would circulate while the gold and silver collected interest and buttressed the bank’s power.
Hamilton’s bank idea ignited an impassioned debate in the House of Representatives. Southerners charged that the bank would benefit the mercantile interest centered in the North while doing nothing for the yeoman farmers. They also questioned its constitutionality. Even if a national bank would be conducive to the union’s financial health, whence, they asked, did the power to charter this corporation come?
To answer that question, the bank’s proponents advanced remarkably broad theories of constitutional interpretation on the floor of Congress. Fisher Ames of Massachusetts opined, “Congress may do what is necessary to the end for which the constitution was adopted.” And just what were the ends? According to Theodore Sedgwick, who also represented Massachusetts, “the public good and general welfare” were the ultimate ends. Elbridge Gerry concurred with his neighbors from Massachusetts and pointed Congress to the preamble of the Constitution. He observed that providing for the common defense and general welfare were the great objects of the Constitution and should guide the interpretation of the enumerated powers. John Lawrence of New York argued that nothing in the Constitution expressly forbade a bank and declared that “we ought not to deduce a prohibition by construction.”
Congressman James Madison was shocked as he listened to his colleagues’ arguments. The construction put forward, Madison alleged, would destroy the system of enumerated powers crafted in Philadelphia. Madison reminded his fellow representatives that the Philadelphia Convention had, in fact, considered enumerating the power of incorporation but decided against delegating such a power to Congress. He reminded them that if no powers pertaining to creating a national bank had been enumerated, then the bank had to be necessary and proper for carrying out one of the listed powers. To the extent that an enumerated power could be cited, Madison said that the Necessary and Proper Clause must be interpreted “according to the natural and obvious force of terms and the context” and thus “be limited to the means necessary to the end, and incident to the nature, of the specified powers.” Remote implications of constitutional language should not be relied upon, Madison warned the Congress, or else the national government may “reach every object of legislation.”
Despite Madison’s criticism, Congress passed the bank bill and sent it to President Washington for his signature. Washington, however, was uncomfortable with the legislation and asked Attorney General Edmund Randolph and Secretary of State Thomas Jefferson to offer opinions on the bill. Both Randolph and Jefferson believed that the bill was unconstitutional. Randolph’s thoughts were summed up in the penultimate paragraph of his opinion: “let it be propounded as an eternal question to those who build new powers on this clause, whether the latitude of construction, which they arrogate will not terminate in an unlimited power in Congress.”
In his response, Jefferson began with the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Jefferson described the amendment as the foundation of constitutional interpretation. “To take a single step around the powers of Congress,” he warned, “is to take possession of a boundless field of power, no longer susceptible of any definition.” Jefferson examined the enumerated powers and concluded that all of them could be executed without creating a bank. Jefferson acknowledged that the bank might make collecting taxes more convenient, but he denied that convenience and necessity were synonyms. The word “necessary,” in Jefferson’s view, restrained the national government “to those means, without which the grant of power would be nugatory.”
The opinions of Randolph and Jefferson certainly worried Washington. As he mulled the matter, he asked Hamilton to offer his opinion on the bank’s constitutionality. After studying Randolph’s and Jefferson’s opinions, Hamilton complied and asserted that the analysis of his cabinet colleagues “would be fatal to the just and indispensable authority of the United States.” A means was necessary, according to Hamilton, so long as it was useful or helpful to the exercise of a delegated power. “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,” Hamilton reasoned, “it may safely be deemed to come within the compass of the national authority.”
Impressed with Hamilton’s arguments, Washington signed the bank bill into law.
This was a grave error. In the words of the great Virginia judge Spencer Roane, “[t]hat man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.” Nationalists eager to augment the enumerated powers of Congress have given the Constitution’s Necessary and Proper Clause an extensive interpretation that denigrates from the promise of a limited government. The genie of loose constitutional construction was let out of the bottle in the bank debate, and we have been unable to recapture it. Hence, we have an omnipotent Congress that has long ago shed itself of the careful enumeration of powers.
Yes, Jefferson and his colleagues lost the fight in Congress and with President Washington. But to portray Jefferson and his allies as eccentric cranks who unnecessarily opposed a “perfectly valid federal action” is disingenuous. There were strong arguments against the bank. Amar, however, glosses over the very reasonable Jeffersonian position as he plays the tune of big government congruent with the modern state’s worst excesses.