Coin, Currency, and Constitution: Reconsidering the National Bank Precedent

Univ. of Wisconsin Legal Studies Research Paper No. 1471

117 Mich. L. Rev. (2019, Forthcoming)

24 Pages Posted: 25 Apr 2019

See all articles by David S. Schwartz

David S. Schwartz

University of Wisconsin Law School

Date Written: April 24, 2019

Abstract

The constitutional debates surrounding the First and Second Banks of the United States generated the first major precedents regarding the scope of federal legislative powers, and their importance continues to resonate today. Eric Lomazoff's important new book, Reconstructing the National Bank Controversy, is the first scholarly study that views the National Bank controversy as a continuous 55-year sequence of events, whose highlights include the adoption of Alexander Hamilton's proposed Bank of the United States in 1791, John Marshall's decision in McCulloch v. Maryland in 1819, and Andrew Jackson's veto of the Second Bank recharter in 1832. Lomazoff persuasively establishes that a Madisonian consensus supporting the creation of the Second Bank in 1816 " largely overlooked by constitutional scholars " was framed in a way that tried, albeit unsuccessfully, to downplay the Necessary and Proper Clause and the idea of implied powers by emphasizing the existence of a federal power to regulate the national currency, linked to the Coinage Clause. The book review goes on to argue that the National Bank controversy demonstrates that many antebellum partisans of limited enumerated powers -- mainstream Jeffersonian Republicans, Jacksonian Democrats, and even James Madison himself -- were quite happy to work around enumerated powers in order to meet the political demands and objectives of the moment. This lends support to the suggestion that enumerationism (the ideology of limited enumerated powers) was never, in practice, the "true" original meaning of the Constitution.

Keywords: First Bank of the United States, Second Bank of the United States, Coinage Clause, Necessary and Proper Clause, national currency, McCulloch v. Maryland, originalism, enumerationism, enumerated powers

Suggested Citation

Schwartz, David S., Coin, Currency, and Constitution: Reconsidering the National Bank Precedent (April 24, 2019). Univ. of Wisconsin Legal Studies Research Paper No. 1471. Available at SSRN: https://ssrn.com/abstract=3377572

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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