But in the case relied upon the Supreme Court have not decided that all the features of this corporation are compatible with the Constitution.  It is true that the court have said that the law incorporating the bank is a constitutional exercise of power by Congress; but taking into view the whole opinion of the court and the reasoning by which they have come to that conclusion, I understand them to have decided that inasmuch as a bank is an appropriate means for carrying into effect the enumerated powers of the General Government, therefore the law incorporating it is in accordance with that provision of the Constitution which declares that Congress shall have power “to make all laws which shall be necessary and proper for carrying those powers into execution.”  Having satisfied themselves that the word “necessary” in the Constitution means “needful,” “requisite,” “essential,” “conducive to,” and that “a bank” is a convenient, a useful, and essential instrument in the prosecution of the Government’s “fiscal operations,” they conclude that to “use one must be within the discretion of Congress” and that “the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution;” “but,” say they, “where the law is not prohibited and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground.”

The principle here affirmed is that the “degree of its necessity,” involving all the details of a banking institution, is a question exclusively for legislative consideration.  A bank is constitutional, but it is the province of the Legislature to determine whether this or that particular power, privilege, or exemption is “necessary and proper” to enable the bank to discharge its duties to the Government, and from their decision there is no appeal to the courts of justice.  Under the decision of the Supreme Court, therefore, it is the exclusive province of Congress and the President to decide whether the particular features of this act are necessary and proper in order to enable the bank to perform conveniently and efficiently the public duties assigned to it as a fiscal agent, and therefore constitutional, or unnecessary and improper, and therefore unconstitutional.

Without commenting on the general principle affirmed by the Supreme Court, let us examine the details of this act in accordance with the rule of legislative action which they have laid down.  It will be found that many of the powers and privileges conferred on it can not be supposed necessary for the purpose for which it is proposed to be created, and are not, therefore, means necessary to attain the end in view, and consequently not justified by the Constitution.