Credit: Courtesy of American Memory at the Library of Congress.
Even in its first 30 years of existence, the U.S. Constitution had to prove its durability and flexibility in a variety of disputes. More often than not, James Madison, the "Father of the Constitution," took part in the discussion. Madison had been present at the document's birth as the mastermind behind the so-called Virginia Plan. He had worked tirelessly for its ratification including authoring 29 Federalist Papers, and he continued to be a concerned guardian of the Constitution as it matured. However, it should be noted that Madison chose not to allow his notes from the Constitutional Convention to be published until after his death,
In the early years of the Republic, Madison held a variety of offices, both appointed and elected. At other times, he was part of the loyal opposition. Both in office and out, he played an important role in the continuing debate [stet]. Virtually every important event was precedent-setting, raising crucial questions about how the constitution should be interpreted and implemented. How should the Constitution be applied to situations not specified in the text? How can balance be achieved between the power of the states and that of the federal government? How can a balance of power be achieved among the three branches of the federal government? In this lesson, Madison's words will help students understand the constitutional issues involved in some controversies that arose during Madison's presidency.
Raising funds for national defense or for an army in time of war is much easier if a national bank exists . For example, a bank can facilitate the acquisition of loans. In 1811 Congress had allowed the charter of the First National Bank, which Madison considered unconstitutional, to elapse. The War of 1812 created a new need for the bank, but the question remained whether a national bank was constitutional.
Give your class background on the First and Second National Banks from the class text or another source, such as:
Among the domestic issues that did stand somewhat apart from the war itself was the struggle over the rechartering of the Bank of the United States, whose charter was scheduled to terminate in 1812. The move to recharter the Bank met stiff opposition from three sources: "old" Republicans who viewed the Bank as unconstitutional and a stronghold of Hamiltonian power, anti-British Republicans who objected to the substantial holdings of Bank stock by Britons, and state banking interests opposed to the U.S. Bank's power to control the nation's financial business. When the anti-Bank forces killed the recharter drive, the U.S. confronted the British without the means to support war loans or to easily obtain government credit. In 1816, with Madison's support, the Second Bank was chartered with a twenty-year term. Madison's critics claimed that his support for the Bank revealed his pro-Federalist sympathies.
Teachers who would like more background before leading this discussion about the Constitution can consult a reference such as Understanding the Constitution (Peltason, Davis, Peltason, and Corwin. Wadsworth Publishing, 15th edition. May 22, 2000. ISBN: 0155071920)
Does the Constitution say anything specific that would relate to the incorporation of a national bank? (No). Does the power to raise revenue (Article 1, Section 7, #1) imply the ability to incorporate a bank? Does the ability to borrow money (Article 1, Section 8, #2) imply the ability to incorporate a bank? Does a national bank promote the "general welfare" (Article 1, Section 8)? Would a national bank tend to benefit one state or region more than another, such as a state with many businesses dealing in finance as opposed to an agricultural state (Article 1, Section 9)? Should incorporating banks be the responsibility of the states (Article 6, Section 2, Tenth Amendment)? Some opponents argued that a national bank would infringe on state banks, making them ineffective. Students should think about this issue as they learn more.
Distribute the handout "Excerpts from the Debate in the House over the National Bank". In it, parts of the debate On the Establishment of a National Bank (from Elliot's Debates, available on the EDSITEment-reviewed website American Memory) have been extracted, simplified, and written in first-person in the form of a script. There are eight roles. Assign the parts to student volunteers who will read the script aloud.
Discuss the debate. To what parts of the Constitution do the speeches refer? What arguments are used to oppose the bank? What arguments are used in support of the bank? What is mentioned in the debate about the usefulness of a national bank? What do students think about the constitutionality of a national bank? Remind students that a law that produces a positive result is not necessarily constitutional.
Read with the class either "Madison's Edited Remarks on the Constitutionality of a National Bank" or "Madison's Complete Remarks on the Constitutionality of a National Bank". To what parts of the Constitution does Madison refer? What arguments does he use to oppose the bank? What does Madison say about the usefulness of a national bank? Does Madison offer any suggestions as to what could make the bank constitutional?
If students want to read a brief modern analysis, The James Madison Center, a link from the EDSITEment resource The American President, offers commentary on Madison's speech in the House on the national bank in the introduction to James Madison Debates the Constitutionality of a National Bank.
As President, James Madison signed the act establishing the Second National Bank. In 1831, he reflected on the debates over the Second National Bank. About 15 years later, he was still defending himself against the charge that he had been inconsistent in supporting the second bank when he had objected so strongly to the first. Here is the core of his remarks:
The charge of inconsistency between my objection to the constitutionality of such a bank in 1791, and my assent in 1817, turns on the question, how far legislative precedents, expounding the Constitution, ought to guide succeeding legislatures, and to overrule individual opinions.
… It was in conformity with the view here taken of the respect due to deliberate and reiterated precedent, that the Bank of the United States, though 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 through the several branches of the government. It had been carried into execution through a period of twenty years, with annual legislative recognition,--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 maybe 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, and 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 judgment and intention …
Madison asserted that legislation passed by Congress and carried out successfully with the approval of the people over a significant period of time sets a precedent of constitutional interpretation for future legislation. Once Congress had established a national bank that worked reasonably well for 20 years and was approved by the general public, all subsequent debates on creating related laws had to take that law's success into account.
Students having completed the lesson should be able to respond effectively to the following:
In 1819, the Second National Bank was at the center of one of the most important Supreme Court cases, McCulloch v. Maryland. Read with the class the following excerpt from Chief Justice James Marshall's decision, in which he addressed two questions: Whether the National Bank was constitutional and whether the State of Maryland had the authority to tax the branch of bank located within that state:
The power now contested was exercised by the first Congress elected under the present constitution. The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance.”
—From McCulloch v. Maryland (1819) on U.S. Info/Department of State, a link from the EDSITEment resource Internet Public Library
Ask students, working alone or in small groups, to set up a Venn Diagram with two intersecting circles. They can also use the interactive version of this diagram. One circle is for Marshall's arguments in the section of his opinion quoted above, the other for Madison's. In the intersection between the two circles put those arguments that are essentially the same for both men.
1-2 class periods