To Spencer Roane
Montpellier Septr. 2. 1819
I have received your favor of the 22d Ult: inclosing a copy of your observations on the judgment of the Supreme Court of the U. S. against the State of Maryland; and I have found the latitudinary mode of expounding the Constitution adopted by the Court, combated in them with the ability & force which was to be expected.
It appears to me as it does to you, that the occasion did not call for the general & abstract doctrine interwoven with the decision on the particular case.1 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.2 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 individually taken by them. This might, either by the harmony of their reasoning, have produced greater conviction in the public mind; or by its discordance, have impaired the force of a precedent, now ostensibly supported by a unanimous and perfect concurrence in every argument & dictum contained 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.3 In the great system of political economy, having for its general object, the national welfare, every thing is related immediately or remotely to every other thing; and consequently, a power over any one thing, if not limited by some obvious & precise affinity, may amount to a power over every other. Ends & means may shift their character at the will, and 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.4
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 can not 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 agst. legislative encroachments. “Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Gover[n]ment, it would be the painful duty of this tribunal to say, that such an act was not the law of the land.”5 But suppose Congress should, as would doubtless happen, pass unconstitutional laws, not to accomplish objects not entrusted to them, that is, 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 Gover[n]ment 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 Gover[n]ment, the grant was unconstitutional. Should Congress however grant the monopoly, according to the French policy, as a means judged by them, to be 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 and the local Governments; and that it might require a regular course of practice to liquidate and 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 and as pliant as what has occurred. 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, can not 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 Governments have not been freely and deliberately established by themselves. It has been 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 granted 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 Government. 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 Government may be limited in its sovereignty, as well with respect to the means as to the objects of its 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 Government. There is certainly a reasonable medium between expounding the Constitution with the strictness of a penal or other ordinary Statute, and expounding it with a laxity, which may vary its essential character, and encroach on the local sovereignties with which it was meant to be reconciliable.
The very existence of these local sovereignties is a controul on pleas for a constructive amplification of the powers of the general Government. Within a single State, possessing the entire sovereignty, the powers given to the Government are understood to extend to all acts, whether as means or ends, required for the welfare of the Community, and falling within the range of just Government. To withold from such a Government 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 Government of the U. States, the case is obviously different. In establishing that Government; the people retained other Governments, capable of exercising such necessary & useful powers as were not to be exercised by the General Government. No necessary presumption therefore arises from the importance of any particular power in itself, that it has been vested in that Government; because altho’ not vested there it may be vested 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 witheld.
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 of my particular esteem and cordial respects.
RC (CStbK); FC (DLC). Minor differences between the copies have not been noted.
1. In striking down a Maryland law taxing the Second Bank of the United States and affirming that the federal government had the power to create such a bank, Chief Justice John Marshall wrote generally about the powers of the national government: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” (Gunther, John Marshall’s Defense of McCulloch v. Maryland, 38–39).
2. The Supreme Court’s vote was unanimous, and John Marshall wrote the sole opinion (Killenbeck, M’Culloch v. Maryland, 110).
3. In his opinion Marshall stated that “to employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable” (Gunther, John Marshall’s Defense of McCulloch v. Maryland, 33).
4. JM was referring to the fine distinctions made between revenue taxes and taxes imposed in the course of commercial regulation, for which see the discussion in the colonies over the Sugar Act in Edmund S. Morgan and Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution (Chapel Hill, N.C., 1953), 21–39.
5. Gunther, John Marshall’s Defense of McCulloch v. Maryland, 40.