McCulloch vs. Maryland, 1819

Background

An act was passed on April 10, 1816 by the congress entitled “an act to incorporate the subscribers to the Bank of the United States.” On February 11, 1818 an act was passed by the general assembly of Maryland entitled “an act to impose a tax on all banks, or branches, thereof, in the state of Maryland, not chartered by the legislature.” The president, directors, and company of the Bank of the US went into full operation in Philadelphia in 1817 as organized by the congress and established a branch of the bank in the city of Baltimore by issuing bank notes and discounting promissory notes under the authority and direction of the president, directors and company established at Philadelphia. However, the president, directors, and company had no authority to establish that branch in Baltimore, and neither the president, directors, or company, branch, or office paid in advance $15k to the treasurer of the Western Shore of Maryland for the use of the state of Maryland before issuing of the said notes. Moreover, the treasurer of the Western Shore of Maryland under the direction of the governor and council of the state was ready and offered to deliver to the president, directors, and company the required stamped paper.

Marshall, Ch. J., delivered the opinion of the court.

1. The first question is does Congress have the power to incorporate a bank? This can’t be considered an open question. The question contested was introduced very early in human history, and has been recognized by successive legislatures, has been acted upon by the judicial department, and in cases of peculiar delicacy, as a law of undoubted obligation.

On Maryland’s argument

The counsel of the state of Maryland have brought up that in the construction of the constitution; its instrument is in the power is not emanating from the people but as the act of sovereign and independent states. The powers of the general government are delegated by the states and must be debriefed to the subordination tot he states who possess supreme dominion.

Chief Justice Marshall’s argument about the source of the Constitution

The instrument was a proposal without obligation or pretensions. It was reported to the existing congress with a request that it might ‘be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.’ This mode of proceeding was adopted, and by the convention, congress, and state legislatures, the instrument was submitted to the people. It was acted only in which they can act safely, effectively, and wisely by assembling in convention. Did they assemble in their several states; where else should they have assembled? The measures they adopted cease to become the measures of the people or the state governments.

The constitution derives its authority from the conventions held. The government proceeds directly frmo the people, it is ordained and established in the name of the people and declared to be ordained ‘in order to form a more perfect union, establish justice, insure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity.’

On the meaning of the doctrine of implied powers

Among the enumerated powers we can’t find the power of establishing a bank or creating a corporation. But there is no phrase that says that we can’t which means that every law should be expressly and minutely described. Even the 10th amendment (all powers not given to the federal government are reserved for the people) was framed because it is questionable whether particular powers has been delegated to one government or prohibited to the other. A constitution written down to the last detail would be impossible for humans to adapt and could never be understood by the public. Therefore, only the great outlines should be written, and important objects designated.

So although among the enumerated powers, we can’t find the word ‘bank’ or ‘incorporation,’ we find the powers to lay and collect taxes, to borrow money, regulate commerce, declare and conduct a war, and raise and support armies. But it could be contended that a government in charge of the happiness and prosperity of its nation should be entrusted with ample means for their execution. The constitution shouldn’t clog and embarrass execution by withholding the most appropriate means by being too detailed.

On the purpose of the Necessary and Proper Clause

But the Constitution didn’t leave the right of congress to employ the necessary means. The constitution didn’t leave the right for the execution of powers to be granted to the government. The enumeration of powers says that ‘all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this contitution, in the government of the United States, or in any department thereof.’

Congress isn’t empowered to make laws that helpp the government, only laws that are ‘necessary and proper'.’ The word necessary controls the whole sentence. It limits the right to pass laws for the execution of granted powers.

Does the word ‘necessary’ always mean an unavoidable dependency between two things? We don’t think so; we think that it means that it implies that there is one thing that is convenient, useful, or essential to another. The word necessary is vague and admits all degrees of comparison and is connected with other words which will change the meaning of it; it can be necessary, very necessary, or absolutely or indispensably necessary. Everyone will interpret how the word is used differently.

The constitution is supposed to last for ages and is supposed to be adapted to the various crises of human stuff. In the future the way the government should act will be different but that doesn’t mean we should change the constitution entirely.

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On Maryland’s power to tax the branch of the bank

Question 2: Can Maryland tax that branch without violating the constitution?

The sovereignty of a state includes everything that exists within its own authority or introduced by its permission but does it include congress carrying execution powers that were originally granted to the people? No. The powers belong to the people of the single state.

The power to tax involves the power to destroy which destroys the power to create.

On national supremacy, the bank, and Maryland’s argument

The result of this case is 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 (abuse the power) the powers inside the general government. The law passed by the legislature of Maryland, imposing a tax on the Bank of the US, is unconstitutional and void.