To Spencer Roane
Septr. 2; 1819.
I have recd. your favor of the 22d Ult inclosing a copy of your
observations on the Judgment of the Supreme Court of the U. S. in the case of
M'Culloch agst. the State of Maryland; and I have found their latitudinary mode
of expounding the Constitution, combated in them with the ability and the force
which were to be expected.
It appears to me as it does to you that the occasion did not call for
the general and abstract doctrine interwoven with the decision of the
particular case. I have always supposed that the meaning of a law, and for a
like reason, of a Constitution, so far as it depends on Judicial
interpretation, was to result from a course of particular decisions, and not
these from a previous and abstract comment on the subject. The example in this
instance tends to reverse the rule and to forego the illustration to be derived
from a series of cases actually occurring for adjudication.
I could have wished also that the Judges had delivered their opinions
seriatim. The case was of such magnitude, in the scope given to it, as to call,
if any case could do so, for the views of the subject separately taken by them.
This might either by the harmony of their reasoning have produced a greater
conviction in the Public mind; or by its discordance have impaired the force of
the precedent now ostensibly supported by a unanimous & perfect concurrence
in every argument & dictum in the judgment pronounced.
But what is of most importance is the high sanction given to a latitude
in expounding the Constitution which seems to break down the landmarks intended
by a specification of the Powers of Congress, and to substitute for a definite
connection between means and ends, a Legislative discretion as to the former to
which no practical limit can be assigned. In the great system of Political
Economy having for its general object the national welfare, everything is
related immediately or remotely to every other thing; and consequently a Power
over any one thing, if not limited by some obvious and precise affinity, may
amount to a Power over every other. Ends & means may shift their character
at the will & according to the ingenuity of the Legislative Body. What is
an end in one case may be a means in another; nay in the same case, may be
either an end or a means at the Legislative option. The British Parliament in
collecting a revenue from the commerce of America found no difficulty in
calling it either a tax for the regulation of trade, or a regulation of trade
with a view to the tax, as it suited the argument or the policy of the
Is there a Legislative power in fact, not expressly prohibited by the
Constitution, which might not, according to the doctrine of the Court, be
exercised as a means of carrying into effect some specified Power?
Does not the Court also relinquish by their doctrine, all controul on
the Legislative exercise of unconstitutional powers? According to that
doctrine, the expediency & constitutionality of means for carrying into
effect a specified Power are convertible terms; and Congress are admitted to be
Judges of the expediency. The Court certainly cannot be so; a question, the
moment it assumes the character of mere expediency or policy, being evidently
beyond the reach of Judicial cognizance.
It is true, the Court are disposed to retain a guardianship of the
Constitution against legislative encroachments. "Should Congress," say they,
"under the pretext of executing its Powers, pass laws for the accomplishment of
objects not entrusted to the Government, it would become the painful duty of
this Tribunal to say that such an act was not the law of the land." But suppose
Congress should, as would doubtless happen, pass unconstitutional laws not to
accomplish objects not specified in the Constitution, but the same laws as
means expedient, convenient or conducive to the accomplishment of objects
entrusted to the Government; by what handle could the Court take hold of the
case? We are told that it was the policy of the old Government of France to
grant monopolies, such as that of Tobacco, in order to create funds in
particular hands from which loans could be made to the Public, adequate
capitalists not being formed in that Country in the ordinary course of
commerce. Were Congress to grant a like monopoly merely to aggrandize those
enjoying it, the Court might consistently say, that this not being an object
entrusted to the Governt. the grant was unconstitutional and void. Should
Congress however grant the monopoly according to the French policy as a means
judged by them to be necessary, expedient or conducive to the borrowing of
money, which is an object entrusted to them by the Constitution, it seems clear
that the Court, adhering to its doctrine, could not interfere without stepping
on Legislative ground, to do which they justly disclaim all pretension.
It could not but happen, and was foreseen at the birth of the
Constitution, that difficulties and differences of opinion might occasionally
arise in expounding terms & phrases necessarily used in such a charter;
more especially those which divide legislation between the General & local
Governments; and that it might require a regular course of practice to
liquidate & settle the meaning of some of them. But it was anticipated I
believe by few if any of the friends of the Constitution, that a rule of
construction would be introduced as broad & as pliant as what has occurred.
And those who recollect, and still more those who shared in what passed in the
State Conventions, thro' which the people ratified the Constitution, with
respect to the extent of the powers vested in Congress, cannot easily be
persuaded that the avowal of such a rule would not have prevented its
ratification. It has been the misfortune, if not the reproach, of other
nations, that their Govts. have not been freely and deliberately established by
themselves. It is the boast of ours that such has been its source and that it
can be altered by the same authority only which established it. It is a further
boast that a regular mode of making proper alterations has been providently
inserted in the Constitution itself. It is anxiously to be wished therefore,
that no innovations may take place in other modes, one of which would be a
constructive assumption of powers never meant to be granted. If the powers be
deficient, the legitimate source of additional ones is always open, and ought
to be resorted to.
Much of the error in expounding the Constitution has its origin in the
use made of the species of sovereignty implied in the nature of Govt. The
specified powers vested in Congress, it is said, are sovereign powers, and that
as such they carry with them an unlimited discretion as to the means of
executing them. It may surely be remarked that a limited Govt. may be limited
in its sovereignty as well with respect to the means as to the objects of his
powers; and that to give an extent to the former, superseding the limits to the
latter, is in effect to convert a limited into an unlimited Govt. There is
certainly a reasonable medium between expounding the Constitution with the
strictness of a penal law, or other ordinary statute, and expounding it with a
laxity which may vary its essential character, and encroach on the local
sovereignties with wch. it was meant to be reconcilable.
The very existence of these local sovereignties is a controul on the
pleas for a constructive amplification of the powers of the General Govt.
Within a single State possessing the entire sovereignty, the powers given to
the Govt. by the People are understood to extend to all the Acts whether as
means or ends required for the welfare of the Community, and falling within the
range of just Govt. To withhold from such a Govt. any particular power
necessary or useful in itself, would be to deprive the people of the good
dependent on its exercise; since the power must be there or not exist at all.
In the Govt. of the U. S. the case is obviously different. In establishing that
Govt. the people retained other Govts. capable of exercising such necessary and
useful powers as were not to be exercised by the General Govt. No necessary
presumption therefore arises from the importance of any particular power in
itself, that it has been vested in that Govt. because tho' not vested there, it
may exist elsewhere, and the exercise of it elsewhere might be preferred by
those who alone had a right to make the distribution. The presumption which
ought to be indulged is that any improvement of this distribution sufficiently
pointed out by experience would not be withheld.
Altho' I have confined myself to the single question concerning the rule
of interpreting the Constitution, I find that my pen has carried me to a length
which would not have been permitted by a recollection that my remarks are
merely for an eye to which no aspect of the subject is likely to be new. I
hasten therefore to conclude with assurances &c. &c.