Thomas Jefferson and The National Bank Question Yet Again: 1813-1817

Now in retirement from the presidency and politics generally, Thomas Jefferson still retained strong views on the subject of the national power of incorporation. Consequently he wrote to his relation in Congress, John Wayles Eppes of Virginia, to express his concern about the nature of such a power. Eppes had taken a leading role in the initial debates against renewal of the old bank, and Jefferson knew that Eppes would yet again take an important part in the debates that would follow.

From Jefferson’s stand point, the power of incorporation remained a problematic constitutional issue. For the former president, each branch of government, whether executive, legislative, or judicial, had a coequal authority to pronounce on the constitutionality of any proposed law. That the Congress had eventually come around by 1811 to his point of view on the nature of the original charter was grounds enough to confirm, in his mind at least, that the practice was, and remained unconstitutional: “Here then we might stop, and consider the memorial as answered.” He then went on to consider various practical considerations to its structure and regulation.

Interestingly, his friend and successor to the presidency, James Madison, who had initially sided with Jefferson on the original question in 1791, now had a different view of the matter. Once the first Bank had been approved and continually recognized as legitimate by subsequent legislation and government policy, Madison came to the view that the people, through their representatives, had made the decision that the national government did in fact possess the power of incorporation; that is to say, that it was now, by years of continual recognition, to be considered, not as an unusual power requiring explicit enumeration, but an ordinary attribute of sovereign authority. Consequently, as President, he signed the act establishing the second Bank of the United States in 1817.

Explaining his decision years later in 1831, just as then President Andrew Jackson was making his war on the very Bank Madison had signed into law, the former president wrote,

“It was in conformity with the view here taken of the respect due to deliberate & reiterated precedents, that the Bank of the United States, tho’ on the original question held to be unconstitutional, received the Executive Signature in the year 1817. The Act originally establishing a Bank had undergone ample discussions in its passage thro’ the several branches of the Government: It had been carried into execution throughout a period of 20 years with annual legislative recognitions; in one instance indeed, with a positive ramification of it into a new State; and with the entire acquiescence of all the local authorities, as well as of the nation at large to all of which may be added, a decreasing prospect of any change in the public opinion adverse to the Constitutionality of such an Institution. A veto from the Executive under these circumstances, with an admission of the expediency & almost necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgement & intention.”

The difference between the two opinions can be seen as a difference in their understanding of the relationship between original intention and political processes. While Madison did not like the idea that government could change the constitution through the ordinary channels of political legislation, he did believe that long established practices had to be granted their due as a process wherein the meaning of the Constitution was, as he wrote in Federalist 37, “liquidated and ascertained by a series of particular discussions and adjudications.” For Jefferson, the Constitution remained a far more fixed set of limitations, and while each branch had an equal power to pronounce on the Constitution’s meaning, some pronouncements might in fact be wrong.