McCulloch arose out of the decades-old dispute concerning the extent of congressional power under Article I, Section 8 of the federal Constitution. As early as 1791, Alexander Hamilton and Thomas Jefferson had debated the question whether Congress might charter a banking corporation in President George Washington’s cabinet, and the denial of that power was one of the chief planks on which the platform of the Jeffersonian Republicans was built. Although President Washington signed the first bank bill into law in1791, Republicans then in control of Congress killed the bill to recharter the bank in 1811. However, difficulties in financing the War of 1812 led some Republicans, including President James Madison, to change their minds, and the Second Bank of the United States received a charter from a Republican Congress in 1816.
In McCulloch, the Supreme Court faced the questions whether Congress might constitutionally charter a bank and, if so, whether a state could tax it. Adopting reasoning very similar to Hamilton’s, Chief Justice John Marshall ruled that yes, the bank bill was constitutional, and no, a state (in this case, Maryland), could not tax the bank.
Justice Marshall’s opinion relied upon purported intentions of the framers of the Constitution. Ironically, Luther Martin, the counsel for Maryland, was one of the Constitution’s framers, and his understanding of Congress’s powers tracked the Republican argument Jefferson had made in1791. According to Martin, Congress could exercise only those powers that it was expressly granted by the Constitution, and neither the power to charter a bank nor the power to charter any other kind of corporation was among them.
Justice Marshall said, however, that the bank bill’s end was clearly contemplated by the Constitution and that the means—chartering a bank—were not prohibited. Under his broad reading of the necessary and proper clause, it might be justified as related to some of the economic powers in Article I, Section 8. One could not expect, he lectured, for a constitution to enumerate every single act a legislature might have to take; ‘‘it is a constitution we are expounding,’’ as he put it. Thus, he concluded, the bill was constitutional. Like many of the justice’s other opinions, this one infuriated the reigning Jeffersonian Republicans, for whom the limitation of congressional powers to those expressly delegated was an article of faith. Yet, their vehement protests against McCulloch came to naught, and congressional power has been interpreted thus broadly ever since.
KEVIN R. C. GUTZMAN
References and Further Reading