"Critics of the decision also included James Madison, who as president of the United States (1809–1817) had signed the bill creating the Second Bank of the United States into law, and who generally supported most of the Supreme Court's nationalist rulings during the second decade of the nineteenth century. Despite this, he believed “that the occasion did not call for the general and abstract doctrine interwoven with the decision of the particular case.” The real danger of Marshall's decision, Madison believed, was “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.” Among other things, the decision seemed to sanction a federal program of internal improvements. Such a program would have involved not only the building of roads, canals, and bridges, but also an assortment of educational, scientific, and literary institutions throughout the country. Both Jefferson and Madison favored such a program on policy grounds, but believed the jurisdictional problems raised by it were so complex and controversial that they could only be clarified through an amendment to the Constitution"
-James Madison
""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 consiquently a Power of any one thing\, if not limited by some obvious andprecise affinity, may amountto a power over every other. Ends and meansmay shift their characgter 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 means at the Legislative option."
Madison had an extremely harsh opinion of the Supreme Court's decision for giving congress latitude as to means "to which no practical limit can be assigned" (thus, he might have added, effectively rejecting the teaching of Madisons's Bonus Bill Veto Message). The court was abandoning its task of policing the limits of congressional authority;"
-James Madison
Dear Sir
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 moment.
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.
