MCCULLOCH v. MARYLAND 4 Wheat. 316 (1819)

Speaking for a unanimous Supreme Court, Chief justice john marshall delivered an opinion upon which posterity has heaped lavish encomiums. james bradley thayer thought "there is nothing so fine as the opinion in McCulloch v. Maryland. " albert beveridge placed it "among the very first of the greatest judicial utterances of all time," while William Draper Lewis described it as "perhaps the most celebrated judicial utterance in the annals of the English speaking world." Such estimates spring from the fact that Marshall's vision of nationalism in time became a reality, to some extent because of his vision. Beveridge was not quite wrong in saying that the McCulloch opinion "so decisively influenced the growth of the Nation that, by many, it is considered as only second in importance to the Constitution itself." On the other hand, Marshall the judicial statesman engaged in a judicial coup, as his panegyrical biographer understood. To appreciate Marshall's achievement in McCulloch and the intense opposition that his opinion engendered in its time, one must also bear in mind that however orthodox his assumptions and doctrines are in the twentieth century, they were in their time unorthodox. With good reason Beveridge spoke of Marshall's "sublime audacity," the "extreme radicalism" of his constitutional theories, and the fact that he "rewrote the fundamental law of the Nation," a proposition to which Beveridge added that it would be more accurate to state that he made of the written instrument "a living thing, capable of growth, capable of keeping pace with the advancement of the American people and ministering to their changing necessities."

The hysterical denunciations of the McCulloch opinion by the aged and crabbed thomas jefferson, by the frenetically embittered spencer roane, and by that caustic apostle of localism, john taylor, may justly be discounted, but not the judgment of the cool and prudent "Father of the Constitution," james madison. On receiving Roane's "Hampden" essays assaulting McCulloch, Madison ignored the threat of state nullification and the repudiation of judicial review, but he agreed with Roane that the Court's opinion tended, in Madison's words, "to convert a limited into an unlimited Government." Madison deplored Marshall's "latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned." Few if any of the friends of the Constitution, declared Madison, anticipated "a rule of construction … as broad as pliant as what has occurred," and he added that the Constitution would probably not have been ratified if the powers that Marshall claimed for the national government had been known in 1788–1789. Madison's opinion suggests how far Marshall and the Court had departed from the intentions of the Framers and makes understandable the onslaught that McCulloch provoked. Although much of that onslaught was a genuine concern for the prostration of states ' rights before a consolidating nationalism, Taylor hit the nail on the head for the older generation of Jeffersonians when he wrote that McCulloch reared "a monied interest."

The case, after all, was decided in the midst of a depression popularly thought to have been caused by the Bank of the United States, a private corporation chartered by Congress; and McCulloch was a decision in favor of the hated bank and against the power of a state to tax its branch operations. The constitutionality of the power of Congress to charter a bank had been ably debated in Congress and in Washington's cabinet in 1791, when alexander hamilton proposed the bank bill. Constitutional debate mirrored party politics, and the Federalists had the votes. The Court never passed judgment on the constitutionality of the original bank of the united states act, though it had a belated opportunity. In 1809 a case came before the Court that was remarkably similar to McCulloch: state officials, acting under a state statute taxing the branches of the bank, forcibly carried away from its vaults money to pay the state tax. In Bank of the United States v. Deveaux (1809), Marshall for the Court, deftly avoiding the questions that he confronted in McCulloch, found that the parties lacked the diversity of citizenship that would authorize jurisdiction. With the bank's twenty-year charter nearing expiration, a decision in favor of the bank's constitutionality might look like pro-Federalistpolitics by the Court, embroiling it in a dispute with President Madison, who was on record as opposing the bank's constitutionality, and with Congress, which supported Madison's policies.

The United States fought the War of 1812 without the bank to help manage its finances, and the results were disastrous. The war generated a new wave of nationalism and a change of opinion in Madison's party. In 1816 President Madison signed into law a bill chartering a second Bank of the United States, passed by Congress with the support of young nationalists like henry clay and john c. calhoun and opposed by a Federalist remnant led by young daniel webster. The political world was turned upside down. The bank's tight credit policies contributed to a depression, provoking many states to retaliate against "the monster monopoly." Two states prohibited the bank from operating within their jurisdictions; six others taxed the operations of the bank's branches within their jurisdictions. The constitutionality of Maryland's tax was the issue in McCulloch, as well as the constitutionality of the act of Congress incorporating the bank.

Six of the greatest lawyers of the nation, including Webster, william pinkney, and luther martin, argued the case over a period of nine days, and only three days later Marshall delivered his thirty-six-page opinion for a unanimous Court. He had written much of it in advance, thus prejudging the case, but in a sense his career was a preparation for the case. As Roane conceded, Marshall was "a man of profound legal attainments" writing "upon a subject which has employed his thoughts, his tongue, and his pen, as a politican, and an historian for more than thirty years." And he had behind him all five Jeffersonian-Republican members of the Court.

Arguing that Congress had no authority to incorporate a bank, counsel for Maryland claimed that the Constitution had originated with the states, which alone were truly sovereign, and that the national government's powers must be exercised in subordination to the states. Marshall grandiloquently turned these propositions around. When Beveridge said that Marshall the solider wrote McCulloch and that his opinion echoed "the blast of the bugle of Valley Forge" (where Marshall served), he had a point. Figuratively, Old Glory and the bald eagle rise up from the opinion—to anyone stirred by a nationalist sentiment. The Constitution, declared Marshall, had been submitted to conventions of the people, from whom it derives its authority. The government formed by the Constitution proceeded "directly from the people" and in the words of the preamble was "ordained and established" in their name, and it binds the states. Marshall drove home that theme repeatedly. "The government of the Union … is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." A bit later Marshall declared that the government of the Union though limited in its powers "is supreme within its sphere of action.… It is the government of all; its powers are delegated by all; it represents all, and acts for all." And it necessarily restricts its subordinate members, because the Constitution and federal laws constitute the supreme law of the land. Reading this later, abraham lincoln transmuted it into "a government of the people, by the people, for the people."

Marshall's opinion is a state paper, like the declaration of independence, the Constitution itself, or the Gettysburg Address, the sort of document that puts itself beyond analysis or criticism. But there were constitutional issues to be resolved, and Marshall had not yet touched them. Madison agreed with Roane that "the occasion did not call for the general and abstract doctrine interwoven with the decision of the particular case," but McCulloch has survived and moved generations of Americans precisely because Marshall saw that the "general and abstract" were embedded in the issues, and he made it seem that the life of the nation was at stake on their resolution in the grandest way.

Disposing affirmatively of the question whether Congress could charter a bank was a foregone conclusion, flowing naturally from unquestioned premises. Though the power of establishing corporations is not among the enumerated powers, seeing the Constitution "whole," as Marshall saw it, led him to the doctrine of implied powers. The Constitution ought not have the "prolixity of a legal code"; rather, it marked only "great outlines," with the result that implied powers could be "deduced." Levying and collecting taxes, borrowing money, regulating commerce, supporting armies, and conducting war are among the major enumerated powers; in addition, the Constitution vests in Congress the power to pass all laws "necessary and proper" to carry into execution the powers enumerated. These powers implied the means necessary to execute them. A banking corporation was a means of effectuating designated ends. The word "necessary" did not mean indispensably necessary; it did not refer to a means without which the power granted would be nugatory, its object unattainable. "Necessary" means "useful," "needful," "conducive to," thus allowing Congress a latitude of choice in attaining its legitimate ends. The Constitution's Framers knew the difference between "necessary" and "absolutely necessary," a phrase they used in Article I, section 10, clause 2. They inserted the necessary and proper clause in a Constitution "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." They intended Congress to have "ample means" for carrying its express powers into effect. The "narrow construction" advocated by Maryland would abridge, even "annihilate," Congress's discretion in selecting its means. Thus, the test for determining the constitutionality of an act of Congress was: "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." That formula yielded the conclusion that the act incorporating the bank was valid.

Such was the broad construction that "deduced" implied powers, shocking even Madison. The Court, he thought, had relinquished control over Congress. He might have added, as John Taylor did, that Marshall neglected to explain how and why a private bank chartered by Congress was necessary, even in a loose sense, to execute the enumerated powers. In Construction Construed (1820) Taylor gave five chapters to McCulloch, exhibiting the consequences of Marshall's reasoning. Congress might legislate on local agriculture and manufactures, because they were necessary to war. Roads were still more necessary than banks for collecting taxes. And:

Taverns are very necessary or convenient for the offices of the army.… But horses are undoubtedly more necessary for the conveyance of the mail and for war, than roads, which may be as convenient to assailants as defenders; and therefore the principle of implied power of legislation will certainly invest Congress with a legislative power over horses. In short, this mode of construction completely establishes the position, that Congress may pass any internal law whatsoever in relation to things, because there is nothing with which war, commerce and taxation may not be closely or remotely connected.

All of which supported Taylor's contention that Marshall's doctrine of implied powers would destroy the states and lead to a government of unlimited powers, because "as ends may be made to beget means, so means may be made to beget ends, until the co-habitation shall rear a progeny of unconstitutional bastards, which were not begotten by the people."

Marshall's reasoning with respect to the second question in the case incited less hostility, though not by much. Assuming Congress could charter the bank, could a state tax its branch? Marshall treated the bank as a branch or "instrument" of the United States itself, and relying on the supremacy clause (Article VI), he concluded that if the states could tax one instrument to any degree, they could tax every other instrument as well—the mails, the mint, even the judicial process. The result would cripple the government, "prostrating it at the foot of the States." Again, he was deducing from general principles in order to defeat the argument that nothing in the Constitution prohibits state taxes on congressionally chartered instruments. Congress's power to create, Marshall reasoned, implied a power to preserve. A state power to tax was a power to destroy, incompatible with the national power to create and preserve. Where such repugnancy exists, the national power, which is supreme, must control. "The question is, in truth, a question of supremacy," with the result that the Court necessarily found the state act unconstitutional.

That was Marshall's McCulloch opinion. Roane and Taylor publicly excoriated it, and Jefferson spurred them on, telling Roane, who rejected even federal judicial review, "I go further than you do." The Virginia legislature repudiated implied powers and recommended an amendment to the Constitution "creating a tribunal for the decision of all questions, in which the powers and authorities of the general government and those of the States, where they are in conflict, shall be decided." Marshall was so upset by the public criticism that he was driven for the first and only time to reply in a series of newspaper articles. Still, Ohio allied itself with Virginia and literally defied, even nullified, the decision in McCulloch. (See osborn v. bank of the united states; cohens v. virginia.) Pennsylvania, Indiana, Illinois, and Tennessee also conducted a guerrilla war against the Court, and Congress seriously debated measures to curb its powers. Fortunately the common enemies of the Court shared no common policies. McCulloch prevailed in the long run, providing, together with gibbons v. ogden (1824), the constitutional wherewithal to meet unpredictable crises even to our time. McCulloch had unforeseen life-giving powers. Marshall, Beveridge's "supreme conservative," laid the constitutional foundations for the New Deal and the Welfare State.

Leonard W. Levy
(1986)

Bibliography

Beveridge, Albert J. 1916–1919 The Life of John Marshall, 4 vols. Vol. IV: 283–339. Boston: Houghton Mifflin.

Haines, Charles Grove 1944 The Role of the Supreme Court in American Government and Politics, 1789–1835 Pages 351–368. Berkeley: University of California Press.

Warren, Charles 1923 The Supreme Court in United States History, 3 vols. Vol. I:499–540. Boston: Little, Brown.