On September 14, 1787, James Madison proposed to the Philadelphia Convention that Congress be authorized to grant corporate charters. His motion was defeated. He later opposed a Bank of the United States on the grounds that his idea of Congressionally granted corporate charters had been voted down in Philadelphia.
Then, as President, he supported the Second Bank of the United States, nominally on the basis of the “precedent” of the first Bank of the United States — but really because it was convenient to use the Second Bank to repay debts from his hapless conduct of the War of 1812. Even the Founding Fathers became part of the Washington cartel!
John Marshall also displayed hypocrisy on the issue of the Bank of the United States, arguing at the Virginia Ratifying Convention in June 1788 that laws not flowing from the enumerated powers would be struck down by judges:
Has the government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.
But this very same fellow, acting as Chief Justice of the United States Supreme Court, penned a decision in McCulloch v. Maryland in 1819 which upheld the establishment of the Second Bank of the United States. Marshall admitted on the one hand that the power to create the bank was not enumerated . . .
Among the enumerated powers, we do not find that of establishing a bank or creating a corporation.
. . . and yet (surprise!) concluded that, hey, you can’t enumerate everything, man!
Among the multitude of means to carry into execution the powers expressly given to the national government, congress is to select, from time to time, such as are most fit for the purpose. It would have been impossible to enumerate them all in the constitution; and a specification of some, omitting others, would have been wholly useless.
So, there was a lot of hand-waving in the course of adopting a Hamiltonian reading of “implied” grants of power — the sort of arguments which, if made at the Virginia Ratifying Convention, would have caused Virginia and many other states to reject the Constitution outright.
All this occurred to me again recently upon seeing that the House of Representatives voted to reauthorize the Export-Import Bank, a corporation with a charter from the national government, illegally created by executive order by FDR, and continually reauthorized to hand out corporate welfare to a handful of large companies with powerful lobbyists.
It all spits in the face of the Constitution. But that has been going on a long, long time.