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Historical question (1791): Does the Constitution give Congress the power to charter a national bank?

In February 1791, President Washington asked his cabinet whether the bank bill Congress had passed was constitutional. Jefferson said no; Hamilton said yes. Their opinions still frame debates about federal power.

Background

Treasury Secretary Alexander Hamilton proposed a Bank of the United States to hold government funds, make loans, issue a sound currency and help manage the national debt. Congress passed the bill in early 1791. Before signing it, President George Washington asked members of his cabinet for written opinions on whether it was constitutional, since the Constitution doesn’t mention banks or corporations. [1][2]

Secretary of State Thomas Jefferson (February 15, 1791) argued that Congress has only the powers the Constitution lists, that a bank is not among them, and that the “necessary and proper” clause allows only means that are truly necessary, not merely convenient. Hamilton (February 23, 1791) argued that the government’s listed powers carry implied powers to use suitable means, and that “necessary” in the clause means “needful, requisite, incidental, useful, or conducive to.” Washington signed the bill. In McCulloch v. Maryland (1819), the Supreme Court upheld a later national bank, adopting reasoning close to Hamilton’s. [1][2]

Key terms

Enumerated powers
The powers the Constitution lists for Congress, mainly in Article I, Section 8.
Implied powers
Powers not listed but understood to follow from listed ones.
Necessary and Proper Clause
Article I, Section 8’s final clause, letting Congress make laws “necessary and proper” for carrying out its powers.
Strict and broad construction
Reading the Constitution’s grants of power narrowly (strict) or generously (broad).
Tenth Amendment
Powers not delegated to the federal government are reserved to the states or the people.

Both sides at their strongest

Each argument is written the way its best advocates would make it, followed by the strongest answer from the other side. Use them to build your case and to prepare for the other one.

Hamilton's position (constitutional)

A bank is a reasonable means to carry out Congress’s listed powers, so the Constitution allows it.

  1. A1 Every power granted includes the means to carry it out.

    Why A government given ends (taxing, borrowing, regulating commerce) must be able to choose suitable means, or the grants are empty.

    Evidence Hamilton’s opinion: “every power vested in a Government is in its nature sovereign” within its objects.

    Best answer Jefferson’s answer: if any convenient means is allowed, the list of powers no longer limits anything.

  2. A2 “Necessary” means useful or conducive, not indispensable.

    Why In ordinary speech, “necessary” often means needful or useful; a strict reading would leave Congress unable to act.

    Evidence Hamilton’s analysis of the word, and the clause’s purpose to give flexibility.

    Best answer Jefferson’s answer: the word means what it says, and treating it as “convenient” swallows the limits.

  3. A3 The bank relates directly to listed powers.

    Why A bank helps collect taxes, borrow money and manage the currency, all federal responsibilities.

    Evidence Hamilton’s link of the bank to taxation, borrowing and trade; the Treasury’s needs.

    Best answer Jefferson’s answer: these tasks could be done without a bank, through existing state banks and Treasury orders.

  4. A4 The test is relation to a legitimate end, not degree of need.

    Why Courts and Congress can ask whether a measure has a natural relation to a federal purpose; how badly it’s needed is a policy question.

    Evidence Hamilton: “the criterion of constitutionality” is not “the more or less of necessity or utility”; later echoed in McCulloch v. Maryland.

    Best answer Jefferson’s answer: such a test gives no real boundary, so federal power would grow without limit.

Jefferson's position (unconstitutional)

The Constitution gives Congress only listed powers, and chartering a bank isn’t one of them.

  1. N1 Federal powers are limited to those delegated.

    Why The Constitution’s foundation is that powers not given to the federal government stay with the states or the people.

    Evidence Jefferson’s opinion citing what became the Tenth Amendment.

    Best answer Hamilton’s answer: implied powers are delegated as fully as express ones, so the Tenth Amendment doesn’t bar them.

  2. N2 The bank fits none of Congress’s listed powers.

    Why Chartering a bank isn’t laying taxes, borrowing money or regulating commerce; creating something to be bought and sold isn’t regulating trade.

    Evidence Jefferson’s line-by-line review of the enumerated powers.

    Best answer Hamilton’s answer: the bank isn’t a new end but a means toward several listed ends.

  3. N3 “Necessary” must mean necessary.

    Why If merely convenient means are allowed, nearly anything can be justified, and the careful list of powers means nothing.

    Evidence Jefferson’s reading of the Necessary and Proper Clause.

    Best answer Hamilton’s answer: the strict reading would make the government unable to function.

  4. N4 The bank would override state laws.

    Why A federal corporation would displace long-standing state laws on property, inheritance and monopolies, a serious step that only true necessity could justify.

    Evidence Jefferson’s list of state laws the charter would affect.

    Best answer Hamilton’s answer: the bank abridges no existing state or individual right, which supports its constitutionality.

Strawman or steelman?

A strawman is a weak copy of the other side’s view, easy to knock down and unfair to the people who hold it. A steelman is that view at its strongest. Answer the steelman, and you’ve answered the real argument. (More on steelmanning.)

Hamilton's position (constitutional)

Strawman “Hamilton wanted the federal government to do anything it pleased.”

Why it’s unfair Hamilton tied the bank to specific listed powers and proposed a test of relation to legitimate ends.

Steelman A government given ends must have the means to reach them; a bank relates naturally to taxing, borrowing and managing currency, so the Constitution allows it.

Jefferson's position (unconstitutional)

Strawman “Jefferson was simply against banks and modern finance.”

Why it’s unfair His opinion was a constitutional argument about limited, listed powers.

Steelman Federal powers are limited to those delegated; a bank fits none, and reading “necessary” as “convenient” would erase the Constitution’s limits.

Weak arguments to avoid

Hamilton's position (constitutional)

  • “The Constitution says nothing against banks, so they’re allowed.” That ignores the principle of enumerated powers, which both sides accepted.

Jefferson's position (unconstitutional)

  • “The bank was a bad idea, so it was unconstitutional.” Whether a policy is wise and whether it’s constitutional are different questions; Jefferson himself separated them.

Questions for cross-examination

Ask the Hamilton's position (constitutional)

  1. Which listed power does the bank carry out?
  2. If “necessary” means useful, what wouldn’t be allowed?
  3. Could state banks do the job instead?

Ask the Jefferson's position (unconstitutional)

  1. Can Congress collect taxes without any means not listed in the Constitution?
  2. What does “necessary” mean in ordinary speech?
  3. If a measure helps carry out a listed power, why isn’t it allowed?

Reading on both sides

Read at least one source from each side before you debate. Look up each source’s author and publisher too: who wrote it is part of the evidence.

Background and overviews

Both sides in one place

Mostly Hamilton's position (constitutional)

Mostly Jefferson's position (unconstitutional)

Study this debate

Sources for the background

  1. Opinion on the Constitutionality of the Bill for Establishing a National Bank, Founders Online, National Archives (1791-02-15). Accessed 2026-10-25.
  2. Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank, Founders Online, National Archives (1791-02-23). Accessed 2026-10-25.

This page presents a historical debate for study. Updated 2026-10-25.

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