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Abstract and Keywords
Congress chartered the Second National Bank of the United States in 1816 in order to regulate the nation’s currency supply. Critics of the move felt that Congress had no authority to create a national bank as it was not listed as one of the powers expressly granted to the federal government in the Constitution. As a challenge to the bank, the Maryland legislature passed a law imposing a tax on all out-of-state banks operating within its borders, including the Baltimore branch of the Bank of the United States. When Maryland officials attempted to collect the tax, the bank’s cashier, James McCulloch, refused to pay, leading to the Maryland suit. The McCulloch v. Maryland decision was constitutionally significant, testing the limits of the federal government’s power and challenging its authority vis-à-vis the states. The central questions of the case concerned the constitutionality of the federal government’s chartering of a bank and whether Maryland, or any state, could tax or have authority over an entity of the federal government. A major proponent of a strong central government, Chief Justice John Marshall sharply rebuked Maryland in his decision. Citing the supremacy clause in the Constitution, he declared that states had no power over the federal government. Further, Marshall expounded upon the meaning of the ‘necessary and proper’ clause, arguing that the federal government had various implied powers, not expressly listed in the Constitution, that were nonetheless essential for it to carry out its appointed functions—such as the creation of a central bank. Marshall’s decision vigorously asserted federal power and established an understanding of the Constitution which interpreted the powers of the federal government more broadly.
Source: M'CULLOCH v. STATE, 17 U.S. 316 (1819) 17 U.S. 316 (Wheat.), M'CULLOCH v. STATE OF MARYLAND et al., February Term, 1819.
. . . MARSHALL, Ch. J. delivered the opinion of the court.
In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that state. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, . . . [and] by this tribunal alone can the decision be made. On the supreme court of the United States has the constitution of our country devolved this important duty.
The first question made in the cause is-has congress power to incorporate a bank? . . .
In discussing this question, the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; . . . The convention which framed the constitution . . . assembled in their several states-and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. . . .
From these conventions, the constitution derives its whole authority. The government proceeds directly from the people; is 'ordained and established,' in the name of the people; and is declared to be ordained, 'in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.' . . . when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then . . . is, emphatically and truly, a government of the people . . .
This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, so long as our system shall exist. . . .
If any one proposition could command the universal assent of mankind, we might expect it would be this-that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result, necessarily, from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. . . . But this question is not left to mere reason: the people have, in express terms, decided it, by saying, 'this constitution, and the laws of the United States, which shall be made in pursuance thereof,' 'shall be the supreme law of the land,' and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme . . .
Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which . . . excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. . . . A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, . . .
Although, among the enumerated powers of government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. . . . But it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution . . . But the constitution of the United States has not left the right of congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added, that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.' . . .
If a corporation may be employed, indiscriminately with other means, to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of congress, if it be an appropriate mode of executing the powers of government. . . . All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose previous opinions against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. . . .
After the most deliberate consideration, it is the unanimous and decided opinion of this court, that the act to incorporate the Bank of the United States is a law made in pursuance of the constitution, and is a part of the supreme law of the land.
. . . That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied . . . The American people have declared their constitution and the laws made in pursuance thereof, to be supreme; . . . If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. . . .
The court has bestowed on this subject its most deliberate consideration. The result is a conviction that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.
Source: M'CULLOCH v. STATE, 17 U.S. 316 (1819) 17 U.S. 316 (Wheat.), M'CULLOCH v. STATE OF MARYLAND et al., February Term, 1819.
Full text at: https://supreme.justia.com/cases/federal/us/17/316/case.html
Review:
- 1.Where does Marshall locate the implied power of the federal government to establish a national bank? Which enumerated/explicit powers help imply this?
- 2.As the creation of the states, through their unification and with their agreement, how can the federal authority supersede that of the individual state, according to this decision?
- 3.How does Marshall use the preamble of the Constitution to set up and build his argument?