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David Adler: McCulloch v. Maryland: Why we have implied powers

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By virtually every measurement, McCulloch v. Maryland (1819) ranks as Chief Justice John Marshall’s greatest opinion, and, in the view of many legal scholars, the most important decision ever rendered by the Supreme Court. McCulloch is a landmark case among landmark cases.

Chief Justice Marshall, a member of the Virginia Ratifying Convention, wrote the court’s unanimous opinion. He set forth the classic statement of national authority, affirmed the sovereignty of the people, explained the “Necessary and Proper Clause” and the doctrine of implied powers, defended judicial restraint and charted a reasonable and enduring method of constitutional interpretation. Little wonder, then, that the enduring significance of McCulloch has led to its citation in more than 6,000 documents.

In McCulloch v. Maryland, the court established the doctrine of implied powers. In the process, it resolved an historical debate between those who advocated a strict, and those who advocated a broad, interpretation of the Necessary and Proper Clause, found in Article 1, section 8, paragraph 18, of the Constitution.

The first 17 paragraphs of Article 1, section 8, enumerate specific powers vested in Congress, ranging from authority to regulate interstate and foreign commerce to declaring war. After enumerating specific powers, paragraph 18 declares that Congress shall have authority “to make all laws which shall be necessary and proper for carrying into the execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States.”

Historical figures central to the establishment and development of the early republic, including Thomas Jefferson and Alexander Hamilton, had taken conflicting positions on the meaning of the clause. Jefferson favored a strict, or narrow, view that laid emphasis on the word, “necessary,” which meant that Congress could exercise only those powers that were indispensable, or absolutely necessary, to the exercise of its enumerated powers.

Hamilton thought Jefferson’s approach was too rigid, and would deprive Congress of authority to determine what laws should be passed to carry out the powers granted to it by the Constitution.

In McCulloch, Chief Justice Marshall embraced Hamilton’s approach. The case featured the same issue on which Jefferson and Hamilton were divided — the constitutionality of the United States Bank, first established by Congress in 1791 to print bank notes and serve as a depository for federal funds. The state of Maryland imposed a tax on the branch of the U.S. Bank located in Baltimore, and then filed a suit in a state court against James McCulloch, the branch’s cashier, when he refused to pay the tax. Maryland prevailed in state court, but the federal government, anticipating similar acts and lawsuits in other states, appealed to the Supreme Court.

For the court, Chief Justice Marshall first addressed the constitutionality of the bank. Marshall, drawing upon Hamilton’s reasoning, upheld the creation of the bank as a legal exercise of congressional authority. According to Marshall, since Congress determined that the bank would facilitate the exercise of it powers and responsibilities, then Congress possessed the implied power to create the bank. The court would not interfere with the law-making function of Congress, so long as the power was contained within the four corners of Article 1 of the Constitution.

In an exercise of judicial deference to congressional authority to write laws and policies, Marshall wrote, in famous words: “Let the end be legitimate, let it be within the scope of the constitution; and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

In rejecting the narrow interpretation of the word, “necessary,” the Marshall Court was practicing self-restraint, refusing to substitute its own policy sense or judgment of whether the bank was necessary since Congress is the branch of government vested with authority to write the laws of the United States. This act of deference to the legislature reflected Marshall’s long and lasting legacy, and framed the court’s doctrinal approach to reviewing congressional legislation.

Beyond cementing the place of implied powers in our constitutional scheme, the court also affirmed the principle of popular sovereignty in its rejection of Maryland’s assertion of state sovereignty. As in previous cases, the Marshall Court denounced Maryland’s theory that the Constitution was the result of a state compact. Marshall, invoking the first words of the Preamble to the Constitution — “We the People” — declared that the people, not the states, “ordain and establish” the Constitution.

The court also rejected the assertion by Maryland that as a sovereign entity, a state could tax the federal bank doing business within its jurisdiction. In addition to rejecting the claim of state sovereignty, Marshall also denied that Maryland might not tax the bank by invoking the Supremacy clause of Article VI. In words quoted thousands of times, Marshall observed that the “power to tax is the power to destroy.” Since the federal government was, by virtue of the Supremacy Clause, “superior” to the states, the states could not possess the power to tax the federal government, that is, destroy its superior.

Chief Justice Marshall’s opinion for the court in McCulloch represented yet another judicial decision that increased the power of the federal government in the 19th century. Marshall well understood the implications of the Jeffersonian reading of the Necessary and Proper Clause for the future of the United States, and he resented it. In a letter to his colleague, Justice Bushrod Washington, Marshall confided: “I find myself more stimulated on this subject than on any other because I believe the design to be to injure the Judges and impair the Constitution.”

David Adler is president of The Alturas Institute. This "We the People" series is provided by the North Dakota Newspaper Association and Humanities North Dakota.

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