David S. Schwartz (University of Wisconsin Law School) has posted Coin, Currency, and Constitution: Reconsidering the National Bank Precedent, 117 Mich. L. Rev. (2019, forthcoming) (24 pages) on SSRN. Here is the 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.
With all respect to the author, the last sentence of the abstract seems a non sequitur.
Here is the Amazon page for Eric Lomazoff's book Reconstructing the National Bank Controversy: Politics and Law in the Early American Republic (University of Chicago Press 2018). And here is the book description:
The Bank of the United States sparked several rounds of intense debate over the meaning of the Constitution’s Necessary and Proper Clause, which authorizes the federal government to make laws that are “necessary” for exercising its other powers. Our standard account of the national bank controversy, however, is incomplete. The controversy was much more dynamic than a two-sided debate over a single constitutional provision and was shaped as much by politics as by law.
With Reconstructing the National Bank Controversy, Eric Lomazoff offers a far more robust account of the constitutional politics of national banking between 1791 and 1832. During that time, three forces—changes within the Bank itself, growing tension over federal power within the Republican coalition, and the endurance of monetary turmoil beyond the War of 1812 —drove the development of our first major debate over the scope of federal power at least as much as the formal dimensions of the Constitution or the absence of a shared legal definition for the word “necessary.” These three forces—sometimes alone, sometimes in combination—repeatedly reshaped the terms on which the Bank’s constitutionality was contested. Lomazoff documents how these three dimensions of the polity changed over time and traces the manner in which they periodically led federal officials to adjust their claims about the Bank’s constitutionality. This includes the emergence of the Coinage Clause—which gives Congress power to “coin money, regulate the value thereof”—as a novel justification for the institution. He concludes the book by explaining why a more robust account of the national bank controversy can help us understand the constitutional basis for modern American monetary politics.
Posted at 6:07 AM