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McCULLOCH v. MARYLAND (1819)

In the case of McCulloch v. Maryland, Marshall answered a question that had arisen a generation earlier. President Washington had been an attentive listener at the Philadelphia Convention; he knew that giving Congress authority to establish a national bank had been proposed and rejected. Now, as president in 1790, he wondered if such a project would be constitutional. Washington turned to his secretary of state, Thomas Jefferson, who was something of a states rights man and feared an overweening centralizing authority. Jefferson told the president that this power was clearly outside the purview of Congress. Nothing could be round in the Constitution to support it and, most emphatically, the power to establish a bank could not possibly be implied by the so-called elastic necessary and proper clause. Surely there was nothing necessary about establishing a national bank.

Nonsense! said Alexander Hamilton, the energetic, brilliant, and aggressive secretary of the treasury. Hamilton had submitted a broad-scale fiscal program tor the new nation. A bank was essential. And, according to Hamilton, "necessary often means no more than needful." In the end, Washington was persuaded by Hamilton, and the bank was established. But the battle was not over.

Though the bank became a reality, it remained controversial for years, and when it began to establish branches in major cities in competition with local state-chartered banks, the controversy became hotly political and, ultimately, constitutional. It arrived at the US. Supreme Court in 1819 as McCulloch v. Maryland. A Bank of the United States branch in Baltimore was close to running the local state-chartered bank out of business. The Maryland legislature levied a tax on every bank note issued by the BUS. McCulloch, the branch treasurer, refused to pay it and was arrested. His case came to the Supreme Court.

Chief Justice Marshall found that the state of Maryland had no right to tax the BUS, an arm of the national government, based on the argument that the power to tax involved the power to destroy. Marshall said that Congress had the power to do anything that was useful, conducive to, or even just appropriate to carrying out its responsibilities. "Let the end be legitimate," Marshall wrote, ". . . all means which are appropriate . . . are constitutional." Thus emerged a broad constitutional interpretation establishing the supremacy of the federal government over the states.

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