University of Virginia Library

TO SPENCER ROANE.

Dear Sir I have recd. your favor of the 22d
Ult[154] 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 &c &c.