Back to my occasional series on “taking tentherism seriously.” If you’ve followed everything until now, skip ahead a couple of paragraph to where the new stuff starts.
The Old Stuff
If you’re joining us late, “tentherism” refers to the argument by small government conservatives, across U.S. history and especially now, that the Tenth Amendment to the U.S. Constitution limits the federal government to those powers explicitly enumerated in the Constitution, and that therefore a great many assertions of federal power — from early days to the Obama health-care law — were unconstitutional federal power grabs from rights and powers that should have remained vested in the states or the people. (Michele Bachmann asserted this doctrine, with reference to ObamaCare. Tom Emmer has sponsored state laws that would assert Minnesota’s right to block federal laws on 10th Amendment grounds.)
In searching for the “original understanding” of the 10th Amendment, a couple of my taking-tentherism-seriously posts last month (see here and here) dealt with the crisis over the Alien and Sedition Acts of 1798 and the role of such important founders as John Adams, Thomas Jefferson and James Madison. I had meant to push forward historically, but believe it or not, I must back up because I had overlooked the role of George Washington in one of the very first iterations of the Tentherist argument.
The new/old stuff starts here
In 1790, during President Washington’s first term, Treasury Secretary Alexander Hamilton devised a plan for a privately owned, publicly chartered Bank of the United States to help with his plan to put the young country and the new national government on a sound financial footing. A bill to grant a federal charter to that bank moved through the Congress.
Various arguments for and against the idea arose, but one of the key arguments against was that the Constitution did not include an enumerated power to charter a national bank and that, under the 10th Amendment (which says that all powers not granted to the national government are reserved to the states and the people) an act to charter a bank would be unconstitutional.
Among those holding that view were James Madison (who was then serving in the House of Representatives), Thomas Jefferson (who was Washington’s secretary of state) and Edmund Randolph, the attorney general. All three men urged Washington to veto the bank bill, at least partly on 10th Amendment grounds.
According to Gordon Wood, one of the top historians of the founding generation, in “Empire of Liberty,” his 2009 summary of the early years of the Republic, President Washington was impressed with their arguments. If Washington had vetoed the bill on tentherist grounds, it would have been a powerful, lasting blow for the tentherist position.
Wood says that Washington had great respect for the three men who urged a veto, and adds that Washington was “deeply perplexed by the issue of constitutionality,” and even went so far as to ask Madison to prepare a veto message. (That’s odd, to modern thinking, since Madison wasn’t working for the administration.)
But before making up his mind whether to sign or veto, Washington gave Hamilton, the proponent of the bank, a chance to reply to the tentherist arguments. Hamilton was a very important framer of the Constitution himself (he was was a delegate to the Constitutional Convention and, subsequently, along with Madison, chief author of the Federalist Papers, which have often been used as an important source for those seeking the “original understanding” of the Constitution). But Hamilton was also a strong Federalist.
“Hamilton, with Randolph’s and Jefferson’s opinions before him, spent a week working out what became one of his masterful state papers. He carefully refuted the arguments of Randolph and Jefferson and made a powerful case for a broad construction of the Constitution that resounded through subsequent decades of American history. He argued that Congress’s authority to charter a bank was implied by the clause in Article I, Section 8 of the Constitution that gave Congress the right to make all laws ‘necessary and proper’ to carry out its delegated powers. Without the such implied powers, Hamilton wrote ‘the United States would furnish the singular spectacle of a political society without sovereignty, or of a people governed without government.’ That may have been Jefferson’s ideal, but it was not Washington’s. On Feb. 25, 1791, the president signed the bank bill into law.”
With that signature, Washington lent the incalculable weight of his reputation to the side of the argument that, in the modern context, most liberals take. By the way, for historical “original understanding” purposes, Washington, in addition being the legendary father of his country, was the presiding officer of the Constitutional Convention.
The “necessary and proper” clause, which also came to be known as the “elastic clause” of the Constitution, became one of the key tools, along with the “general welfare” clause and most especially the “interstate commerce” clause, by which succeeding generations, especially during and after the New Deal, expanded the scope of federal programs.