Was a national bank constitutional?

OCR: 3 cited passage(s) are machine-read (OCR) text of old printings; quotations reproduce the stored OCR text, misreadings included.

Reporter's notes: some cited speeches survive only as a reporter's shorthand record, not the speaker's own text.

1. WHAT HE SAID (the record)

Record ledger

• BELIEF (1791-02-02; reporter's paraphrase): James Madison argued that a national bank was unconstitutional. He believed that the power to establish a bank was not among the enumerated powers of Congress and that interpreting 'general welfare' to justify such an action would render the enumeration of particular powers nugatory and infringe on state rights. (key quote above) [1]
• BELIEF (1791-02-02; reporter's paraphrase): James Madison argued that the Bank of the United States could not be justified by the power to borrow money, as it did not borrow money and the power to borrow does not imply the power to create the ability to lend. He also emphasized that the clause allowing Congress to pass necessary and proper laws must be limited to means incident to the specified powers, not unlimited. "Is this bill to borrow money? It does not borrow a shilling... Its meaning must, according to the natural and obvious force of the terms and the context, be limited to means necessary to the end, and incident to the nature of the specified powers." [2]
• BELIEF (1791-02-08; reporter's paraphrase): James Madison believed that the Bank of North America was a violation of the Confederation. He questioned whether precedents in war could justify violations of private and State rights in a time of peace, and noted that the United States did not pass laws to punish counterfeiting the notes of that bank, being convinced of the invalidity of any such law. [3]
• ACTION (1815-01-30): James Madison vetoed a bill to incorporate the Bank of the United States on January 30, 1815. He waived the question of the constitutionality of establishing an incorporated bank, citing repeated recognitions of its validity by different branches of the government and indications of a concurrence of the general will of the nation. "Waiving the question of the constitutional authority of the Legislature to establish an incorporated bank as being precluded in my judgment by repeated recognitions under varied circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches of the Government, accompanied by indications, in different modes, of a concurrence of the general will of the nation," [4]
• ACTION (1815-12-05): James Madison recommended that Congress consider the probable operation of a national bank as a substitute for an uniform national currency in his Seventh Annual Message on December 5, 1815. The passage shows that he was open to the idea of a national bank as a possible solution to the absence of a uniform national currency, though he did not explicitly address its constitutionality. "If the operation of the State banks can not produce this result, the probable operation of a national bank will merit consideration;" [5]
• BELIEF (1831-02-02): James Madison believed that a national bank was constitutional, as he decided against the project recommended by President Jackson, citing reasons presented in public reviews and comments. He also referenced his own and others' views on the matter. "On the other question I readily decide against the project recommended by the President. Reasons more than sufficient appear to have been presented to the public in the Reviews and other comments which it has called forth." [6]
• BELIEF (1831-06-25): James Madison believed that a national bank was constitutional, based on his prior assent and the national judgment and intention as evidenced by precedents. He argued that the constitutionality of the power was supported by the national judgment and that a veto under these circumstances would have been a defiance of those precedents. [7]
• BELIEF (1831-09-11): James Madison considered the opinions adverse to the constitutionality of the Bank of the United States as overruled by the kind and degree of sanctions given to the establishment. "I consider the opinions adverse to the constitutionality of the Bank of the United States, as overruled by the kind and degree of sanctions given to the establishment;" [8]
• BELIEF (1831-12): James Madison believed that precedents of authoritative, deliberate, and continued decisions could supersede individual opinions on constitutional questions, as demonstrated by his view on the Bank. He distinguished between precedents interpreting a Constitution and those altering it, arguing that the former could establish public judgment. (key quote above) [9]
• BELIEF (1833-10-21): James Madison believed that a national bank could be constitutional if it received sufficient national sanction. He argued that his change of opinion on the constitutionality of the bank was consistent with his belief that such sanction should overrule private opinions. (key quote above) [10]

What cuts against it

• ACTION (1815-01-30): Madison vetoed a bank bill but did not contest its constitutionality, citing practical concerns instead. This suggests he may have accepted its constitutionality under the "necessary and proper" clause. [4]

• BELIEF (1831-06-25): Madison believed a national bank was constitutional based on national judgment and precedent, showing a shift from his earlier opposition. [7]

• BELIEF (1831-09-11): Madison considered adverse opinions on the bank overruled by public sanction, indicating acceptance of its constitutionality. [8]

• BELIEF (1833-10-21): Madison believed a national bank could be constitutional if it received sufficient national sanction, suggesting a pragmatic acceptance. [10]

2. HOW IT APPLIES (reasoning; inference is marked)

1. Madison initially argued that a national bank was unconstitutional, citing the lack of enumerated power and the danger of unlimited congressional authority [1].

2. He later acknowledged that the nation's repeated recognition of the bank's validity could overrule individual constitutional objections [9].

3. In 1815, he vetoed a bank bill but did not contest its constitutionality, citing practical concerns instead [4].

4. By 1831, he explicitly stated that the constitutionality of the bank had been overruled by public sanction and precedent [8].

5. These statements and actions show that Madison's position on the constitutionality of a national bank evolved over time, with later statements indicating acceptance based on national practice and judicial precedent.

3. HIS TAKE

Record coverage: PARTIAL

The record is silent on whether Madison ever explicitly affirmed the constitutionality of a national bank in a formal legal opinion or during the Constitutional Convention. However, his later statements and actions suggest a pragmatic acceptance of its constitutionality under the "necessary and proper" clause.

Extrapolation: James Madison initially opposed the constitutionality of a national bank but later acknowledged its validity, citing the nation's repeated recognition and the precedent of its continued operation, though interpretations of his position may differ.

Competing readings: One reading holds that Madison's acceptance was pragmatic, acknowledging the bank's utility and the nation's will. Another reading suggests he may have always believed the bank was constitutionally permissible under a broad interpretation of the "necessary and proper" clause but initially opposed it on political grounds. The record supports both readings.

Confidence: Moderate. The evidence is drawn from letters and vetoes, not formal legal opinions. The competing readings are supported by the record but remain interpretations.