McCulloch: Shaping the future of American constitutional law

The constitutional issues that the Supreme Court addressed—and answered—in the landmark case of McCulloch v. Maryland (1819), have shaped our nation’s constitutional law for two centuries. McCulloch is of such surpassing importance that a prominent biographer of Chief Justice John Marshall, who wrote the Court’s unanimous opinion, said that if Marshall’s “fame rested solely on this one effort, it would be secure.”

The importance of the issues before the Court—the extent of federal power, the limits of state authority, the nature of the Union and the principles and methods by which the Constitution should be interpreted—were apparent to all. The Court, fully aware of the confrontation between national and state authority, permitted nine days of oral argument, three times longer than ordinarily scheduled for important cases. It also relaxed its rule that permitted just two attorneys for each party, and allowed each side to present three lawyers, each of which happened to be among the nation’s most distinguished members of the bar. Chief Justice Marshall observed that the attorneys’ performance reflected “a splendor of eloquence, and a strength of argument seldom, if ever, surpassed.”

Luther Martin, lead counsel for Maryland, and a delegate to the Constitutional Convention who fought against ratification of the Constitution, urged state sovereignty and narrow construction of the Constitution to persuade the Court that Congress had no authority to charter the National Bank. States, he asserted, possessed power to tax branches of the bank doing business within its jurisdiction. Congress lacked authority to create the national bank, Martin argued, since there was no enumeration in the Constitution of such a power.

Congress, Martin claimed, could not create the bank on the premise that the “Necessary and Proper Clause of the Constitution—Article I, section 8, paragraph 18—authorized it since creation of the bank was not “absolutely necessary” to managing the government’s monetary and financial problems. At issue was the scope and meaning of the Clause, which provided: “Congress shall have Power . . . To make 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 of Officer thereof.”

On the fundamental nature of the Union, Martin argued for Maryland, the Constitution was not created by the people, but rather by the states, “and all the powers which are not relinquished by it, are reserved to the states.”

William Pinkney for the federal government, countered with the argument of “popular sovereignty”: the Constitution “springs from the people,” rather than the states. William Wirt, U.S. Attorney General and the legendary Daniel Webster who, until the emergence in the 20th Century of Thurgood Marshall, had won more cases before the Supreme Court than any attorney in our nation’s history, argued for broad interpretation of congressional authority. Justice Joseph Story, perhaps the most scholarly of Justices, said of Pinkney’s closing arguments to the Court: “Never, in my whole life, have I ever heard a greater speech. All the cobwebs of sophistry and metaphysics about States’ rights and State sovereignty he brushed away with a mighty besom.”

Congress, Webster contended, enjoyed by virtue of the Necessary and Proper Clause, the authority to create the National Bank. He told the Court that the question of the constitutionality of the bank had been thoroughly explored during the debate surrounding its enactment and that the three branches of the government had been acting for more than three decades on the assumption that the bank was constitutional. In Webster’s view, this longstanding interpretation “must be considered as ratified by the voice of the people.” Pinkney added that this construction was especially weighty because the creation of the bank in 1791 was the handiwork of the First Congress, which contained many of the men who wrote the Constitution.

On the interpretation of the Necessary and Proper Clause, Webster argued for a broad or liberal interpretation of the language. “Necessary” and “proper,” he argued, should be understood as synonymous, which meant, simply, that “such powers as are suitable and fitted to the object; such as are best and most useful in relation to the end proposed.” Webster declared that whether Congress had chosen the best means, or the wisest policy, was for Congress and not the court to decide. Here, Webster and his colleagues were urging judicial modesty—judicial self-restraint—pleading for the Court to refrain from imposing its own view on the best means for executing the government’s powers.

The question of whether states might tax the bank, that is, the federal government, led Webster to ask the Court: “If the states may tax the bank, to what extent shall they tax it, and where shall they stop?” He added, “the power to tax is the power to destroy,” and warned that states might assert the power to tax “the proceedings in the courts of the United States, and nothing but their own discretion can impose a limit upon this exercise of their authority.” Surely, he declared, the framers of the Constitution had not intended that the exercise of national powers should depend on the discretion of state governments.

With that, we turn next week to Marshall’s landmark opinion.