Topic: McCulloch v.
Maryland and the Doctrine of Implied Powers
Introduction
National
supremacy over the states consisted of two parts: (1) positive authority for
the federal government to affirmatively act and (2) regulative authority for
the federal government to restrict the states from acting. The next three
topics investigate these different types of authority. McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) provided the federal government with
positive authority in the form of implied and express power to enact laws on
almost every imaginable subject. The case of Dartmouth College v. Woodward (1819) and its predecessor case Fletcher v. Peck (1810) provided the
Court with the regulative authority to review a huge array of state laws and
determine whether they were permitted under the Constitution—specifically,
under the clause that prohibits the states from impairing the “obligation of
contract.” But first, let’s look at McCulloch.
The
question of whether the United States should incorporate or create a national
bank, or “central bank,” as we might call it today, arose almost immediately in
George Washington’s administration. It was a key component of Alexander
Hamilton’s economic vision for the new country. Federalists generally favored
it; republicans generally opposed it. Washington asked the two bright stars of
his administration, Hamilton and Jefferson, for their opinions. Hamilton, of
course, argued strongly for it and much of the rationale for the bank that is
found in his report to Washington can be found in Marshall’s McCulloch opinion. Jefferson, Madison,
and many republicans argued against it on constitutional grounds: there was no
express or enumerated constitutional authority for Congress to charter a bank
or any other corporation. Additionally, such an institution would contribute to
a powerful centralized government and take away from the states and state banks
their important role in the economy. Washington accepted Hamilton’s argument
and signed the bank bill into law. The law chartered a national bank for a
period of twenty years (1791 to 1811). This constitutionality of the law was
never brought to the Supreme Court.
When
the first charter expired in 1811, James Madison was president, and by that
time he had come around to the opinion that a national bank was a useful and a
constitutional institution. He proposed chartering a second national bank,
which was enacted by Congress in 1816 and began operations in 1817. This bank
came immediately under intense opposition by several states, especially Maryland
and Ohio.
The
story about the bank in the Garraty text provides the fascinating background of
the McCulloch case and the Osborn case decided a few years later.
As you read the excerpt from Marshall’s long opinion, keep your eye on the
principal republican argument against the constitutionality of the second bank,
The argument was that the Constitution established a
national government with only the enumerated or expressed powers set forth in
the Constitution. The power to incorporate a bank, or any other institution, is
not among those powers. Therefore, Congress has no power to create a bank. How
did Marshall counter this argument? What are “implied powers”? What clause of
the Constitution does Marshall focus upon in his argument? Why is Marshall’s
definition of the word “necessary” so important for the argument? Look for a
statement of the three-part test or formula for determining whether Congress
may do something under its implied powers.