guarding against it. Such a forbearance and silence on such an occasion, and among so many members who belonged to the part of the nation which called for explanatory and restrictive amendments, and who had been elected as known advocates for them, cannot be accounted for without supposing that the terms "common defence and general welfare " were not, at that time, deemed susceptible of any such construction as has since been applied to them.
It may be thought, perhaps, due to the subject, to advert to a letter of October 5, 1787, to Samuel Adams, and another, of October 16, of the same year, to the governor of Virginia, from R. H. Lee, in both of which it is seen that the terms had attracted his notice, and were apprehended by him "to submit to Congress every object of human legislation." But it is particularly worthy of remark that, although a member of the Senate of the United States, when amendments to the Constitution were before that house, and sundry additions and alterations were there made to the list sent from the other, no notice was taken of those terms as pregnant with danger. It must be inferred that the opinion formed by the distinguished member, at the first view of the Constitution, and before it had been fully discussed and elucidated, had been changed into a conviction that the terms did not fairly admit the construction he had originally put on them, and therefore needed no explanatory precaution against it.
Note. Against the opinion of Mr. Madison, there are the opinions of men of great eminence; and among these may be enumerated Presidents Washington, Jefferson, and Monroe, and Mr. Hamilton.
MADISON'S LETTER
on the
CONSTITUTIONALITY OF THE BANK OF THE UNITED STATES,
Dear Sir: I have received your friendly letter of the 18th inst. The few lines which answered your former one, of the 21st of January last, were written in haste and in bad health; but they expressed, though without the attention in some respects due to the occasion, a dissent from the views of the President, as to a Bank of the United States, and a substitute for it; to which I cannot but adhere. The objections to the latter have appeared to me to preponderate greatly over the advantages expected from it, and the constitutionality of the former I still regard as sustained by the considerations to which I yielded, in giving ray assent to the existing bank.
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.
Some obscurity has been thrown over the question, by confounding it with the respect due from one legislature to laws passed by preceding legislatures. But the two cases are essentially different. A Constitution, being derived from a superior authority, is to be expounded and obeyed, not controlled or varied by the subordinate authority of a legislature. A law, on the other hand, resting on no higher authority than that possessed by every successive legislature, its expediency, as well as its meaning, is within the scope of the latter.
The case in question has its true analogy in the obligation arising from judicial expositions of the law on succeeding judges, the Constitution being a law to the legislator, as the law is a rule of decision to the judge.
And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered, 1. Because it is a reasonable and established
