An introduction to Constitutional Law 100 Supreme Court cases everyone should know

Randy E. Barnett & Josh Blackman

Following the ratification of the Constitution, our young Republic faced serious financial problems. Alexander Hamilton, the Secretary of the Treasury, proposed a solution to address these problems: The federal government should Charter a national bank. This institution would have branches throughout the United States that could establish credit, accept deposits, and lend money to the new national government.

Article I, Section 1 of the Constitution explains that “All legislative Powers herein granted shall be vested in a Congress of the United States.” In other words, if a legislative power is not enumerated somewhere in the Constitution, then Congress does not have that power.

Most of Congress’s enumerated powers can be found in Article I, Section 8, which lists eighteen separate clauses. The power to incorporate a bank cannot be found in the first seventeen clauses of Article I, Section 8. Hamilton’s proposal does not require the collection of direct taxes. So that power is out. Nor does the bill borrow money or regulate commerce. All of the other express powers are likewise out. Only Clause 18, the Necessary and Proper Clause, could possibly empower Congress to incorporate the bank.

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