milestone documents - albany law schoolmcculloch v. maryland 467 ceedings to date. on behalf of...

Milestone Documentsin American History

Exploring the Primary Sources

That Shaped America

Volume 1: 1763 – 1823

Paul FinkelmanEditor in Chief

Bruce A. LeshConsulting Editor

Schlager Group

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464 Milestone Documents in American History

McCulloch v. Maryland (National Archives and Records Administration)

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MCCULLOCH V. MARYLAND 465

18

19MCCULLOCH V. MARYLAND

“We must never forget that it is a constitution we are expounding.”

In this clash over federalism, the national government’sincorporation of a bank became an early flashpoint. Hamil-ton, as Washington’s secretary of the treasury, proposed anational bank in 1790 as a way to spur economic invest-ment, support national debt management, facilitate feder-al tax collection, and, less officially, give monied interests astake in the success of the national government. Congressapproved the bank bill and sent it to Washington for his sig-nature. Jefferson, then Washington’s secretary of state, vig-orously opposed the incorporation of a bank as exceedingthe constitutional powers of the national government.Washington, however, agreed with Hamilton’s defense ofthe bank’s constitutionality and signed the bill, creating theFirst Bank of the United States.

After the electoral revolution of 1800, when Jeffersonand his Republicans ousted Federalists from Congress andthe presidency, political polarization over federalism dimin-ished. As president, Jefferson exercised broader powersthan he previously would have conceded to the nationalgovernment, such as with his conclusion of the LouisianaPurchase, while Federalists, no longer in control, becameless vigorous advocates for broad national power once itwas wielded by their opponents. When the expiration of theFirst Bank in 1811 contributed to financial woes, whichthe War of 1812 only exacerbated, Madison, having suc-ceeded Jefferson as president, signed a bill to incorporatethe Second Bank of the United States on April 10, 1816.Even though as a House member Madison had strenuous-ly opposed Hamilton’s original bill as unconstitutional, hewaived those earlier objections based on the generalacceptance of the First Bank’s constitutionality during theensuing years. By then, nationalism was ascendant in theUnited States, as it coincidentally was in Europe as well.

Within three years, however, the Second Bank was pub-licly reviled, though not principally because of objectionsrelated to federalism. The bank’s loose lending practicesduring an economic boom gave way in the depression thatfollowed to policies of strict recapture. Maryland and otherstates then moved against the bank by taxing its operation;two states even banned its operation altogether. At the sametime, word was emerging that James McCulloch, the chiefagent of the Baltimore branch, and some unscrupulous con-spirators had bilked the bank out of $1 million. Opposition

Overview

Federalism, the division of sovereign powerbetween national and state governments,creates perpetual tension over the degree ofpower possessed by each level of govern-ment. Innovating such a division in 1787,the framers of the U.S. Constitution couldoffer only an impressionistic blueprint.

Granting the new national government power with regard toseveral broadly worded subjects, the framers left thedetails—and thus the precise division of power—to futuredevelopment. How much power did those grants actuallybestow on the national government of the United States?Chief Justice John Marshall’s 1819 opinion in McCulloch v.Maryland was the foundational Supreme Court decision thatinitiated the process of answering that question, which verymuch remains relevant in modern times.

Context

The scope of the national government’s power becameone of the most controversial political issues in the yearsfollowing the ratification of the Constitution. On one side,such members of the founding generation as Thomas Jef-ferson and James Madison pressed for constitutional inter-pretations that would seriously constrain the power of thenational government and, as a result, enhance the power ofthe states. Against them, arguing for interpretations thatwould enhance national power at the expense of the states,were such figures as Alexander Hamilton, John Adams,and, though trying to remain above the fray, George Wash-ington himself. Although slavery and race would laterdefine debates about “states’ rights” and have too oftenbeen ignored as a subtext of this early controversy, the dis-agreement was about far more. Broader matters of individ-ual liberty, self-government, unity, and even national secu-rity were thought to be at stake. The competing concep-tions of federalism became a major impetus behind the riseof political parties in this era, with Jeffersonian Republi-cans favoring a weaker national government and Hamilton-ian Federalists a stronger one.

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to national power had diminished, but opposition to theSecond Bank itself was great, and Congress seriously debat-ed abolishing it. It was in this atmosphere that the SupremeCourt decided the McCulloch case, in which the Courtaffirmed Congress’s power to incorporate a national bankand struck down Maryland’s attempt to tax it.

About the Author

Despite cultural similarities to Jefferson and Madison,John Marshall was a consummate Federalist and a strongsupporter of national power. Born in 1755 in Virginia to asuccessful and locally prominent family, Marshall became alawyer and served as state politician, diplomat, and secre-tary of state before becoming chief justice of the UnitedStates on February 4, 1801. Appointed by President Adams,a Federalist, in the waning days of his administration, Mar-shall and other judicial appointees would remain the onlysource of Federalist power after the imminent Jeffersoniantakeover of the presidency and Congress. Marshall did notdisappoint. By the time he died in 1835 after serving as theSupreme Court’s chief justice for nearly thirty-five years,Marshall had greatly expanded the reputation and influenceof the Court and had penned landmark legal opinions thatlaid the foundations for dramatic expansions in the scope ofthe national government that would occur over the ensuingtwo centuries. Jeffersonians may have won the elections of1800, but owing to Marshall’s commanding Federalist pres-ence on the Court, they ultimately lost the struggle to givefederalism a strongly decentralized bent.

At least two factors that distinguished Marshall from hisVirginia contemporaries may help to explain his regionallydissident opinion in favor of national power. First, Marshallsaw extensive action as a first lieutenant during the Revo-lutionary War, including enduring the harsh winter at Val-ley Forge. He witnessed the problems of supply and sup-port that plagued the Continental army owing to the weaknational government and selfish recalcitrance among thestates in the era before the Constitution. Second, neitherMarshall nor his family ever engaged in large-scale agricul-tural production, although they held significant land. As aresult, Marshall, who never owned more than a handful ofslaves, was less invested in the slavery-dependent planta-tion economy of the South. Indeed, his writings, particular-ly in later years, disclose a disdain for slavery. From hisposition on the Court, he ruled that slaves were people, notproperty, and his will bestowed freedom upon his longtimepersonal servant.

Explanation and Analysis of the Document

Paragraphs 1–10 are background materials that precedeMarshall’s actual opinion, which begins at paragraph 11.Paragraph 1 indicates that the Supreme Court took thecase by issuing a writ of error to Maryland’s highest court.Paragraph 2 is a “statement of the case,” a summary of pro-

1790 ■ DecemberHamilton recommends theincorporation of a nationalbank.

1791 ■ February 8Congress approves the bill forthe first national bank.

■ February 25Washington signs the firstbank bill into law.

■ December 12The First Bank of the UnitedStates begins operations.

1800 ■ NovemberJefferson is elected president,and the Federalists losecontrol of Congress.

1801 ■ February 4Marshall takes the oath asChief Justice of the UnitedStates at the end of theadministration of John Adams.

1811 ■ March 3The First Bank’s charterexpires.

1812 ■ June 18War of 1812 begins when theUnited States declares war onGreat Britain.

1815 ■ February 17War of 1812 ends with theU.S. ratification of the Treatyof Ghent.

1816 ■ April 10Madison signs the secondnational bank bill into law.

1817 ■ January 7The Second Bank of theUnited States beginsoperations.

Time Line



ceedings to date. On behalf of Maryland, John James, astate treasurer, sued James McCulloch, the chief agent ofthe Second Bank’s Baltimore branch, to recover unpaidtaxes that the bank allegedly owed the state. A county courtruled for Maryland based on an agreed-upon “statement offacts,” a procedure that avoided a trial. On appeal, Mary-land’s highest court upheld the county court’s judgment.

Paragraphs 3–5 reproduce the statement of facts, asconfirmed by both parties to the case. Paragraph 3 cites thefederal statute that established the Second Bank and theMaryland statute that taxed the bank. The Second Bankwas organized in Philadelphia and, without Maryland’sauthorization, established a Baltimore branch. The branchengaged in certain transactions with George Williams, ashady business partner of McCulloch. The bank did notpay the Maryland tax even though the state did nothing toobstruct payment. Paragraph 4 identifies the case’s primaryquestion—whether Maryland’s tax is constitutional—andspecifies the remedies sought by each side. Paragraph 5notes that the parties preserve their appeals and agree to bebound by the statement of facts.

Paragraphs 6–10 reproduce the Maryland tax statute. Asparagraph 8 discloses, the statute taxed the transactions ofany bank lacking a state charter. As paragraph 9 discloses,the statute imposed penalties on bank employees.

◆ Chief Justice John Marshall’s Opinion for the CourtParagraph 11 marks the start of Marshall’s opinion,

which was unanimously joined by the associate justices. Inparagraph 12 Marshall explains that Maryland (“the defen-dant”) challenges the constitutionality of the federal lawincorporating the Second Bank and that McCulloch (“theplaintiff”) challenges the constitutionality of Maryland’stax. The Supreme Court, Marshall observes, bears the“awful responsibility” of adjudicating this dispute, whichmay have significant ramifications for federalism.

◆ Power of Congress to Charter a BankIn paragraph 13 Marshall turns to the first main issue:

the power of Congress to charter a bank. In paragraphs14–17 Marshall explains why judicial review should berestrained. In paragraph 14 he cites long-standing congres-sional and judicial acquiescence as a reason to presume theSecond Bank constitutional. He concedes in paragraph 15that the Court could halt an obvious constitutional viola-tion (“a bold and daring usurpation”) but also that the his-torical acquiescence cautions against it. The acquiescenceis held to particularly matter when only federalism, notcivil liberties, is at stake.

In paragraph 16 Marshall adverts to the extensive polit-ical debate over the bank’s constitutionality. He makes tacitreference to James Madison’s opposition to the original billin Congress, Thomas Jefferson’s opposition to it insideGeorge Washington’s cabinet, Washington’s decision toapprove the original bill, and Madison’s subsequent changeof opinion after the original act lapsed. Given this back-ground, a court would be hard pressed to view the bank asobviously unconstitutional, although Marshall adds in

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1818 ■ May 18Maryland sues the SecondBank agent James McCullochover the bank’s failure to paythe state tax.

■ MayBaltimore county court rulesfor Maryland in the SecondBank case.

■ JuneMaryland’s highest courtupholds the county court’sjudgment.

■ September 18The U.S. Supreme Court takesthe case McCulloch v.Maryland.

1819 ■ February 22Oral arguments in McCullochv. Maryland begin.

■ March 3Oral arguments in the caseend.

■ March 6Marshall announces thejudgment of the SupremeCourt in favor of McCulloch.

1832 ■ July 10President Andrew Jacksonvetoes a bill to extend theSecond Bank’s charter.

1833 ■ September 18Jackson announces theremoval of federal funds fromthe bank.

1835 ■ July 6Chief Justice Marshall dies.

1836 ■ March 4The Second Bank’s charterexpires.

Time Line

paragraph 17 that the constitutionality of the Second Bankdoes not necessarily depend on this background.

In paragraphs 18–22 Marshall rejects a compact theoryof federalism, which would view the Constitution as emanat-ing from the states, not the people. He acknowledges inparagraph 19 that state legislatures chose the delegates tothe Constitutional Convention of 1787 and that the Consti-tution was ratified on a state-by-state basis. He reasons,



however, that the document was ratified not by state legisla-tures but by the people in representative conventions, thecloset mechanism to statewide direct democracy in the eigh-teenth century. In paragraph 20 Marshall quotes from theConstitution’s preamble and identifies the people, not thestates, as the foundational source of the Constitution’sauthority. Implicitly referencing the Declaration of Indepen-dence, Marshall reasons in paragraph 21 that even thoughthe people had already delegated their sovereign power tostate governments, they could reclaim it and re-delegate it toa new system of government. In paragraph 22 Marshallemphasizes the federal government’s popular basis, antici-pating Abraham Lincoln’s Gettysburg Address.

In paragraph 23 Marshall acknowledges that Congresspossesses only limited powers as enumerated in the Consti-tution (principally in Article I, Section 8). He calls thepoint so obvious that the Constitution’s “enlightenedfriends”—the authors of the Federalist Papers—devotedmore time than necessary to establishing the proposition.But the difficult question, Marshall says, is identifying thescope of those powers.

In paragraphs 24–26 Marshall establishes that federallaws take precedence over state laws. In paragraph 25 heoffers a functional justification: In a collective, the wholemust bind the parts. In paragraphs 25 and 26 he adds a tex-tual justification—the “supremacy” clause of the Constitu-tion (Article VI, Clause 2), which expressly declares feder-al law supreme.

In paragraph 27—a critical passage—Marshall intro-duces the doctrine of “implied powers.” Even though thechartering of a bank or other corporation is not an enumer-ated power, this doctrine establishes how Congress mightnevertheless have that power as adjunct to its enumeratedpowers. Marshall offers a comparative textual justificationfor this doctrine. While the Articles of Confederation, theforerunner of the Constitution, reserved to the states allpowers that were not “expressly delegated” to the Confed-eration Congress (Article II), the parallel provision of theConstitution itself (Amendment X) omits the word“expressly,” thus allowing the inference that Congress pos-sesses some powers that are not specifically enumerated.Marshall then reinforces his view by considering the verynature of a constitution, which he characterizes as a con-cise document that contains only “great outlines,” notimplementation details. Marshall alludes to this concep-tion when he famously announces here that “it is a consti-tution we are expounding.”

In paragraph 28 Marshall introduces a critical distinc-tion between means and ends. He holds that Congress doesnot have the power to charter a bank merely because thatpower is lesser than the great enumerated powers. Rather,Congress has power to charter a bank because, in Mar-shall’s view, that power is not an end in itself but merely ameans to an end. The enumerated powers, he reasons,address ends, not means, so one would not expect to findthe power to charter a bank—a mere means—among theenumerated powers. Further, the framers of the Constitu-tion could not have intended to grant Congress “ample

powers” without “ample means” for executing them. Sure-ly, Marshall says, the power of Congress to raise and spendrevenue (Article I, Section 8, Clause 1) includes as animplied power the means of transporting revenue from theplace it was raised to the place it will be spent.

In paragraphs 29–31 Marshall requires Maryland toexplain how the power to charter a bank is different fromany other means that Congress might use in executing itsenumerated powers. Although Maryland holds that thepower is a sovereign one, Marshall states that the same istrue of other means, such as physically transporting feder-al revenue. In paragraph 32 Marshall notes that the ques-tion is not whether chartering a bank is a sovereign powerbut, rather, which sovereign possesses the power in a sys-tem where sovereignty is split. Marshall then rejects Mary-land’s argument that the chartering of banks is a statepower because states had that power first. The argument isuntenable because it would not apply to any state admittedto the Union after the ratification of the Constitution.Marshall then reiterates that the chartering of a bank is anapt means to a legitimate federal end and is thus an implic-it adjunct to Congress’s enumerated powers.

In paragraph 33 Marshall turns from implied powers tothe Constitution’s “necessary and proper” clause (Article I,Section 8, Clause 18), which explicitly empowers Congressto enact all laws that are “necessary and proper” for execut-ing its enumerated powers. In paragraph 34 Marshallaccuses Maryland of arguing that the clause is not, as writ-ten, a grant of power but a restriction on Congress’s choiceof means. In paragraphs 35–36 Marshall digresses to rejectMaryland’s argument that the clause merely ensures thatCongress can enact laws. Marshall notes that that power isalready obvious from other provisions.

In paragraph 37 Marshall introduces Maryland’s princi-pal argument: that the word necessary means “indispensablynecessary,” such that the clause in question empowers Con-gress to make only those laws that are indispensable to theexecution of its enumerated powers, limiting Congress toonly those means that are the “most direct and simple.” Inparagraph 38 Marshall reasons that necessary need not beinterpreted as “indispensable,” as it can have less strongsenses. The Constitution itself elsewhere uses a relatedphrase with a qualifying word, “absolutely necessary” (Arti-cle I, Section 10), to convey the sense of “indispensable.”Marshall reasons that such ambiguous words as necessaryshould thus be interpreted in light of “the subject, the con-text, [and] the intention of the person using them.” Mar-shall then considers each of those three matters in turn.

In paragraph 39 Marshall first discusses the “necessaryand proper” clause’s subject, which he describes as facilita-tion of the execution of Congress’s “great powers.” Inter-preting the word necessary to limit Congress’s choice ofmeans would contradict that function. Marshall againinvokes the nature of a constitution, which is “to endurefor ages to come” and be “adapted to the various crises ofhuman affairs.” Limiting Congress’s choice of means inachieving its designated ends would unduly tie the hands offuture generations. This limitation would make the Consti-



tution function more like a legal code, as if the framers hadintended to preemptively micromanage “exigencies which,if foreseen at all, must have been seen dimly, and whichcan be best provided for as they occur.” Marshall then citesstatutory oaths of office as being not indispensably neces-sary to the execution of Congress’s powers while still beingsomething that Congress surely can require.

In paragraphs 40–43 Marshall analogizes the incorpora-tion of a bank to the enactment of criminal restrictions. Heobserves in paragraph 40 that the power to punish people isnot an enumerated power and that Congress could executeits enumerated powers without creating any criminalrestrictions. Although Congress could set up a postal systemand federal courts without criminalizing interference withtheir operations, Marshall states in paragraph 41 that suchcriminal restrictions are nevertheless useful. The power topunish, Marshall reasons in paragraph 42, is a means forexecuting Congress’s enumerated powers and is withinCongress’s power even if merely conducive, but not actual-ly indispensable, to its execution of enumerated powers. Ifnecessary should not be interpreted to mean “indispensable”with respect to the creation of criminal restrictions, Mar-shall asks in paragraph 43, why should it be read that waywith respect to the incorporation of a bank?

In paragraph 44 Marshall considers the specific contextin which the word necessary appears in the clause in ques-tion. He explains that qualifying the word by pairing it withthe phrase and proper would not make sense if necessaryalready meant “indispensable.”

In paragraphs 45–47 Marshall further considers theintentions of the framers. He rejects Maryland’s restrictiveinterpretation of “necessary” in paragraph 45 because itwould effectively function as a limitation on Congress’spower, given that broader power could be inferred evenwithout the “necessary and proper” clause. The restrictionof Congress’s power could not have been the intentbecause, as Marshall observes in paragraph 46, the clause isplaced among the grants of power to Congress (Article I,Section 8), not among the restrictions on the power of Con-gress (Article I, Section 9). Moreover, he argues in para-graph 47 that the clause indeed reads like a grant of power,yet if the framers had had any incentive to conceal a provi-sion’s true purpose, the incentive would have been to con-ceal grants of power, not to conceal restrictions on power.

In paragraph 48 Marshall concludes that the “necessaryand proper” clause does not restrict the discretion of Con-gress to choose the appropriate means for executing its enu-merated powers. If nothing else, he holds, the clauseremoves any doubt about the power of Congress to legislate.

In paragraph 49 Marshall articulates the enduring stan-dard for determining whether a law is within Congress’spower: “Let the end be legitimate, let it be within the scopeof the constitution, and all means which are appropriate,which are plainly adapted to that end, which are not pro-hibited, but consist with the letter and spirit of the consti-tution, are constitutional.”

In paragraphs 50–52 Marshall reasons that chartering abank is an appropriate means for achieving congressional

ends. In paragraph 50 he reiterates that the creation of acorporation is not an end in itself but is merely a means forachieving other ends. As such, there is no reason to sup-pose that it would be enumerated in the Constitution as adistinct power of Congress. In paragraph 51 Marshallanalogizes a corporation to a territorial government, whichhe says is universally regarded as an appropriate, corporatemeans for exercising Congress’s power to regulate federalterritory. In paragraph 52 Marshall reasons that if Congressmay create one kind of corporate entity, a territorial legis-lature, it may create other kinds, including banks, wheredoing so is an appropriate adjunct to the execution of itsenumerated powers. Experts agree, he adds, that a bank isa useful took. Even James Madison (among the era’s“statesmen of the first class”), who initially opposed thebank, eventually approved of it. Marshall points out thatthe erstwhile Confederation Congress also felt a need tocreate a bank, even though doing so might well haveexceeded its powers under the Articles of Confederation.

In paragraph 53 Marshall explains that the extent towhich a federal law is necessary is a matter for Congress,not the judiciary, to determine. In paragraph 54 he rejectsthe argument that the existence of banks chartered by thestates deprives Congress of the power to charter banks. Inparagraphs 55–57, Marshall at last concludes that the Sec-ond Bank of the United States is constitutional.

◆ Maryland’s Power to Tax the BankIn paragraph 58 Marshall turns to the second main

issue: the power of the state of Maryland to tax the SecondBank. In paragraphs 59–65 Marshall explains that thesupremacy of federal law implicitly restricts the power ofstates to tax whenever an exercise of that power is incom-patible with federal law, echoing his opinion in Marbury v.Madison (1803) at the end of paragraph 59. In paragraphs60–61 he alludes to the Constitution’s “supremacy” clause(Article VI, Clause 2), reasoning that the power to destroysomething is incompatible with the power to create andpreserve it. After complimenting the attorneys in paragraph62, Marshall turns Maryland’s key argument back onto thestate in paragraphs 63–64. Referring to the Constitution’sexplicit restriction on state import and export taxes (ArticleI, Section 10), he rejects the negative inference that allother state taxes must be permissible. Instead, Marshallviews the provision as textual confirmation that the powerof states to tax must sometimes yield to the supremacy offederal law. The question, then, is whether a particularstate tax would “defeat the legitimate operations” of thefederal government.

Before addressing that issue, Marshall digresses in para-graphs 66–72 in order to offer an alternative line of reason-ing based on democratic theory and state sovereignty. Hisoverall point here is that states might not have the powerto tax any federal entity at all. Reminiscent of the “no tax-ation without representation” credo of the American Revo-lution, Marshall observes in paragraphs 66–67 that a legis-lator’s interest in reelection is the “only security” against“erroneous and oppressive taxation.” But this security is

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lacking, he reasons, when a state taxes a federal entity. Thepeople of other states, who have an equal financial interestin the federal entity, have no democratic check on the leg-islators of the taxing state. Marshall concedes in paragraph68–69 that a state may tax foreign goods when present inthe state, despite the similar absence of a democraticcheck. That concession prompts him to refocus the inquiryon the scope of state sovereignty in paragraphs 70–71.Although a state may tax things over which it has sover-eignty, including foreign goods when present in the state, astate has no sovereignty over federal entities because thoseentities owe their existence to the people of the entirenation, not to the state. Marshall concludes in paragraph72 that, in this view, there is no need to ask whether theConstitution deprives states of any power to tax federalentities because that power was never part of their sover-eign powers anyway.

In paragraphs 73–75 Marshall rejects Maryland’s appealto self-restraint. Noting famously in paragraph 74 that “thepower to tax involves the power to destroy,” Marshallspecifically rejects Maryland’s argument that the securityof federal operations must rest solely on confidence thatstates will voluntarily refrain from using their taxing powerto destroy those operations. In paragraph 75 Marshallrelies again on democratic theory. Only Congress, he rea-sons, can be trusted to control federal operations becauseonly Congress represents all of the people. In contrast, thepeople of other states have no electoral check on the Mary-land legislature if it decides to tax federal operations.

In paragraphs 76–78 Marshall extrapolates from Mary-land’s argument to show that, taken to its logical conclu-sion, the argument would effectively subordinate the fed-eral government to the individual states. If states may tax

a federally chartered bank, Marshall reasons in paragraph77, they may also tax any other federal operation, such asfederal courts. In paragraph 78 Marshall dismisses asinconsequential Maryland’s disavowal of any presentintention to tax anything other than federal property with-in its borders. If states could tax federal operations, headds, they could even regulate federal operations usingstate powers other than taxation. At its core, Marshall con-cludes, Maryland’s view would subvert the principle offederal supremacy that is expressly established in thesupremacy clause.

In paragraphs 79–80 Marshall rejects Maryland’sappeal to the Federalist Papers. Maryland cited FederalistPaper no. 33, in which Alexander Hamilton argues thatthe “necessary and proper” clause does not empowerCongress to prohibit state taxes. Quoting Federalist no.31, Marshall responds by limiting Hamilton’s argument tothe context in which he made it: a discussion overwhether Congress could directly outlaw state taxes ingeneral. Marshall explains in paragraph 80 that Hamiltonwas not considering the possibility that states might try totax federal operations.

In paragraphs 81–83 Marshall returns to democratictheory to reject Maryland’s argument that if Congress cantax a state-chartered bank, then states must be able to taxa federally chartered bank. In paragraph 82 Marshalldenies this asserted reflexivity with another tacit appeal tothe Revolutionary-era credo of “no taxation without repre-sentation.” If Congress taxes state-chartered banks, peopleof the states are represented in Congress and are taxingthemselves. On the other hand, if one state taxes a federal-ly chartered bank, affecting the interests of everyone in thenation, people in other states have no representation in the

Essential Quotes

“”

“We must never forget that it is a constitution we are expounding.”(Paragraph 27)

“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 theconstitution, are constitutional.”

(Paragraph 49)

“The power to tax involves the power to destroy.”(Paragraph 74)



taxing state’s legislature and thus no electoral check on itstaxing decision. In paragraph 83 Marshall suggests, in thealternative, that even if Maryland’s equation of the two sit-uations were accurate, he would deny either governmentthe power to tax the other; he still would not grant Mary-land the power to tax a federal operation.

Marshall finally announces in paragraphs 84–86 the con-clusion that Maryland’s tax is an unconstitutional interfer-ence with a federal operation. Significantly, however, he qual-ifies the Court’s opinion in paragraph 86. He leaves open thepossibility that Maryland might be able to tax the bank’s realestate and shareholders, as long as such taxes apply on anondiscriminatory basis to all real estate and shareholders,not just to the Second Bank of the United States.

In paragraph 87 Marshall renders judgment. Holdingthe Maryland courts to have erred, Marshall orders thecounty court to rule for McCulloch.

Audience

Marshall’s opinion in McCulloch was written for a vari-ety of audiences. As a judicial decision, it was obviouslywritten most immediately for the litigants and their attor-neys. The opinion was also written for attorneys and judgesmore generally, those in Marshall’s time as well as subse-quent generations. The famous sentence beginning withthe phrase “Let the end be legitimate,” for example, articu-lates a legal “standard” that lawyers and judges can borrowfor evaluating the constitutionality of other congressionalenactments in other cases. The public in general was alsoan audience. Although the inclusion of some legal jargonwas unavoidable and some of the reasoning is quite intri-cate, the opinion includes examples and analogies designedto illustrate its points as well as a few compelling phrasesthat have the accessibility of a modern bumper sticker,such as Marshall’s characterization of the taxing power asinvolving the power to destroy.

The legal reasoning itself is classic Marshall rhetoric.Where other judges might base conclusions on simple ref-erences to textual provisions of the Constitution, Marshallrepeatedly uses the constitutional text merely to confirmconclusions that he has already reached through what hehimself calls “general reasoning” in paragraph 33. He ini-tially endeavors to convince the reader of a point throughreasoning based on the structure or function of the Ameri-can system of government, only later invoking a textual pro-vision that arguably articulates the same point. Arguably,Marshall’s rhetorical tactics are ingenius, as here, he fullyaffirms his conclusions despite the fact that the literal textof the Constitution neither authorizes Congress to incorpo-rate a bank nor prohibits states from taxing one.

Impact

In the present as in the past, Supreme Court decisionsare apt to be immediately judged by the public based not on

the legal principles established but on the specific out-comes in the cases at hand. The particular issue of statetaxation of the Second Bank was in fact short lived, becom-ing wholly moot when the bank’s charter expired in 1836.

Despite the diminished polarization concerning federal-ism and the prevailing acceptance that the bank was consti-tutional, Marshall’s opinion nevertheless generated someintense reactions on federalism grounds. Spencer Roane, ajudge of the Virginia Court of Appeals, published a series ofpopular essays attacking the decision for adopting a broad-ly nationalistic conception of federalism that, in his view,threatened the continued viability of the states. Criticism ofMcCulloch on that basis was sufficiently serious, in fact, toinduce Marshall himself to take the highly unusual step ofdefending his own opinion in his own series of popularessays, which he published under a pseudonym. Still, polar-ization over federalism had diminished enough by 1819 thatMcCulloch survived the contemporaneous attacks.

In the modern era, no one reads McCulloch in order tofigure out whether Congress has the power to incorporate abank. Rather, McCulloch remains one of the most signifi-cant Supreme Court decisions of all time because of itsembrace of a broad view of national power. While relativelyunexploited during the remainder of the nineteenth centu-ry, that view allowed for a breathtaking expansion of the fed-eral government in the twentieth century, particularly dur-ing and after the Great Depression of the 1930s. McCul-loch underlay famous Court decisions upholding the powerof Congress to tell a lone farmer in Ohio how much wheathe could grow for his own personal use, to prohibit a localrestaurant from maintaining a “whites only” policy, and tocriminalize one person’s simple possession of marijuana.

Some two centuries of experience have largely confirmedthe fears of McCulloch’s critics. Indeed, national power hasexpanded beyond anything Marshall himself could haveimagined. At the same time, however, into the twenty-firstcentury the United States not only remained intact andresisted tyranny but also developed into one of the world’swealthiest, most advanced, and most powerful countries. Adifferent McCulloch, one adopting a stingier view of nation-al power, would have produced a United States that wouldbe unrecognizable today, if still united at all.

Related Documents

“Articles of Confederation (1777).” National Archives “Our Docu-ments” Web site. http://www.ourdocuments.gov/doc.php?doc=3.Accessed on December 20, 2007. Before the Constitution, thenational government of the United States was a loose confedera-tion of states established by the Articles of Confederation, whichwere adopted through ratification in 1781.

“Constitution of the United States (1787).” National Archives “OurDocuments” Web site. http://www.ourdocuments.gov/doc.php?doc=9. Accessed on December 20, 2007. Marshall’s opinion in Mc-Culloch draws upon numerous provisions of the U.S. Constitutionas well as on its overall structure.

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Cooke, Jacob E., ed. The Federalist. Middletown, Conn.: WesleyanUniversity Press, 1961. James Madison, Alexander Hamilton, andJohn Jay published a series of essays explaining and defending theU.S. Constitution while New Yorkers were considering whether toratify it. Their essays, known collectively as the Federalist Papers,are collected in this volume.

Gunther, Gerald, ed. John Marshall’s Defense of McCulloch v.Maryland. Stanford, Calif.: Stanford University Press, 1969. Mar-shall engaged in an anonymous public debate over the McCullochdecision with the states’ rights defender Spencer Roane, judge ofthe Virginia Court of Appeals, after the decision was rendered.Their competing essays are collected in this volume.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Marshalldelivered the opinion of the Supreme Court in this earlier deci-sion, which affirmed the Court’s power to strike down unconstitu-tional legislation.

Bibliography

■ ArticlesAmar, Akhil Reed. “Intratextualism.” Harvard Law Review 112, no.4 (February 1999): 747–827.

Barnett, Randy E. “The Original Meaning of the Necessary andProper Clause.” University of Pennsylvania Journal of Constitution-al Law 6 (2003): 183–221.

Beck, J. Randy. “The New Jurisprudence of the Necessary andProper Clause.” University of Illinois Law Review 2002 (2002):581–649.

Clark, Stephen. “Progressive Federalism? A Gay Liberationist Per-spective.” Albany Law Review 66 (2003): 719–757.

Currie, David P. “The Constitution in the Supreme Court: Stateand Congressional Powers, 1801–1835.” University of ChicagoLaw Review 49, no. 4 (1982): 887–975.

Finkelman, Paul. “The Constitution and the Intentions of theFramers: The Limits of Historical Analysis.” University of Pitts-burgh Law Review 50 (1989): 349–398.

Frankfurter, Felix. “John Marshall and the Judicial Function.” Har-vard Law Review 69, no. 2 (December 1955): 217–238.

Kurland, Philip B. “Curia Regis: Some Comments on the DivineRight of Kings and Courts ‘To Say What the Law Is.’” Arizona LawReview 23 (1981): 581–597.

Lawson, Gary, and Patricia B. Granger. “The ‘Proper’ Scope of Fed-eral Power: A Jurisdictional Interpretation of the SweepingClause.” Duke Law Journal 43, no. 2 (November 1993): 267–336.

Rubin, Edward, and Malcolm Feeley. “Federalism: Some Notes on aNational Neurosis.” UCLA Law Review 41 (April 1994): 903–952.

Wechsler, Herbert. “The Political Safeguards of Federalism: TheRole of the States in the Composition and Selection of the Nation-al Government.” Columbia Law Review 54 (1954): 543–560.

■ BooksBlack, Charles L., Jr. Structure and Relationship in ConstitutionalLaw. Woodbridge, Conn.: Ox Bow Press, 1985.

Dangerfield, George. The Awakening of American Nationalism,1815–1828. New York: Harper & Row, 1965.

Ellis, Richard E. Aggressive Nationalism: McCulloch v. Marylandand the Foundation of Federal Authority in the Young Republic.Oxford, U.K.: Oxford University Press, 2007.

Ely, John Hart. Democracy and Distrust: A Theory of JudicialReview. Cambridge, Mass.: Harvard University Press, 1980.

Killenbeck, Mark R. M’Culloch v. Maryland: Securing a Nation.Lawrence: University Press of Kansas, 2006.

Shapiro, David L. Federalism: A Dialogue. Evanston, Ill.: North-western University Press, 1995.

Simon, James F. What Kind of Nation: Thomas Jefferson, John Mar-shall, and the Epic Struggle to Create a United States. New York:Simon & Schuster, 2002.

Smith, Jean Edward. John Marshall: Definer of a Nation. New York:H. Holt, 1996.

White, G. Edward. The Marshall Court and Cultural Change,1815–35. New York: Macmillan, 1988.

■ Web Sites“McCulloch v. Maryland (1819).” Landmark Supreme Court CasesWeb site.

http://www.landmarkcases.org/mcculloch/home.html. Accessedon November 26, 2007.

“McCulloch v. Maryland (1819).” National Archives “Our Docu-ments” Web site.

http://www.ourdocuments.gov/doc.php?flash=true&doc=21.Accessed on November 26, 2007.

“McCulloch v. Maryland (1977).” Internet Archive Web site.http://www.archive.org/details/gov.ntis.AVA02154VNB1.Accessed on November 26, 2007.

—By Stephen Clark



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Questions for Further Study

1. A traditional ideal holds that judges should set aside their own political preferences and interpret the Consti-

tution as neutrally as humanly possible. Is Marshall’s opinion in McCulloch persuasive as a neutral interpretation

of the Constitution, or does it seem driven by his own Federalist preferences for a strong national government?

2. Marshall reasons in paragraph 28 that a government given “ample powers” must also have “ample means”

for executing those powers, and he repeatedly stresses that the choice of means should be left to the discretion of

Congress. A fundamental principle in the law of the European Union, however, is “subsidiarity.” This principle pos-

tulates that a governmental function should be performed by the lowest level of government that can effectively

and efficiently perform it. Compare and contrast the rationale under subsidiarity for transferring a power to a high-

er level of government and Marshall’s rationale for recognizing an implied power in the national government. Would

subsidiarity accord with Marshall’s rejection of the argument, in paragraph 54, that Congress lacks the power to

incorporate a bank because state-incorporated banks are more than adequate to serve Congress’s needs? If not,

which rationale is superior? Why?

3. The framers of the Constitution were influenced by the eighteenth-century French philosopher Montesquieu,

who advocated a form of federalism in Volume 1, Book IX of his work The Spirit of Laws. What would Montesquieu

have thought of the result in McCulloch and of Marshall’s justifications for his conclusions?

4. Unlike the U.S. Constitution, the Constitution Act of Canada grants enumerated powers not only to the Par-

liament of Canada (section 91) but also to the provincial legislatures (section 92). If, as in McCulloch, it was unclear

whether a particular power could be exercised by Parliament or by a provincial legislature, how would the Supreme

Court of Canada resolve the dispute under the Constitution Act? Compare and contrast its probable approach with

Marshall’s approach in McCulloch.

5. In paragraph 86 of the McCulloch opinion, Marshall leaves open the question of whether Maryland could sub-

ject the Second Bank of the United States to the same property taxes that it imposes on all other property in Mary-

land. In light of the rationales that Marshall offers in striking down the tax at issue in McCulloch, how should this

open question have been answered if Maryland had subsequently tried to subject the bank to its ordinary proper-

ty tax laws? How would you resolve any contradictions that might arise among the rationales that Marshall offers

if applied to such a situation?



Glossary

action of debt a type of lawsuit seeking to obtain something owed

defendant in error a litigant who has won in the lower court and is opposing an appeal

enumerated powers governmental powers that are explicitly listed in the text of the Constitution as havingbeen bestowed upon Congress

implied powers governmental powers that are not explicitly listed in the text of the Constitution as havingbeen bestowed upon Congress but that can be inferred as adjuncts to Congress’senumerated powers

judgment of non pros short for “judgment of non prosequitur,” a judgment rendered against a plaintiff who hasfailed to litigate his or her case

legal code a systematic consolidation of all the enacted laws of a jurisdiction

plaintiff in error a litigant who has lost in the lower court and has appealed

prolixity state of being excessively detailed or tedious

writ of error a written court order requiring a lower court to send a case up to an appellate court for areview of the lower court’s ruling



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MCCULLOCH v. STATE OF MARYLAND ET AL.

This was an action of debt,brought by the defendant in error,John James, who sued as well forhimself as for the State of Mary-land, in the County Court of Bal-timore County, in the said State,against the plaintiff in error,McCulloch, to recover certainpenalties, under the act of thelegislature of Maryland, hereaftermentioned. Judgment being ren-dered against the plaintiff inerror, upon the following state-ment of facts, agreed and submit-ted to the Court by the parties,was affirmed by the Court ofAppeals of the State of Maryland,the highest Court of law of saidState, and the cause was brought,by writ of error, to this Court.

It is admitted by the parties in this cause, bytheir counsel, that there was passed, on the 10thday of April 1816, by the Congress of the UnitedStates, an act, entitled, “an act to incorporate thesubscribers to the Bank of the United States;” andthat there was passed on the 11th day of February1818, by the general assembly of Maryland, an act,entitled, “an act to impose a tax on all Banks, orbranches thereof, in the State of Maryland, notchartered by the legislature,” which said acts aremade part of this statement, and it is agreed, maybe read from the statute books in which they arerespectively printed. It is further admitted, that thePresident, Directors and Company of the Bank ofthe United States, incorporated by the act of Con-gress aforesaid, did organize themselves, and gointo full operation, in the city of Philadelphia, inthe State of Pennsylvania, in pursuance of the saidact, and that they did on the ___ day of _____ 1817,establish a branch of the said Bank, or an office ofdiscount and deposit, in the city of Baltimore, inthe State of Maryland, which has, from that time,until the first day of May 1818, ever since transact-ed and carried on business as a Bank, or office ofdiscount and deposit, and as a branch of the saidBank of the United States, by issuing Bank notes

and discounting promissorynotes, and performing otheroperations usual and customaryfor Banks to do and perform,under the authority and by thedirection of the said President,Directors and Company of theBank of the United States,established at Philadelphia asaforesaid. It is further admitted,that the said President, Direc-tors and Company of the saidBank, had no authority to estab-lish the said branch, or office ofdiscount and deposit, at the cityof Baltimore, from the State ofMaryland, otherwise than thesaid State having adopted theconstitution of the United States

and composing one of the States of the Union. It isfurther admitted, that James William McCulloch,the defendant below, being the cashier of the saidbranch, or office of discount and deposit, did, onthe several days set forth in the declaration in thiscause, issue the said respective Bank notes thereindescribed, from the said branch or office, to a cer-tain George Williams, in the city of Baltimore, inpart payment of a promissory note of the saidWilliams, discounted by the said branch or office,which said respective Bank notes were not, nor waseither of them, so issued, on stamped paper, in themanner prescribed by the act of assembly aforesaid.It is further admitted, that the said President,Directors and Company of the Bank of the UnitedStates, and the said branch, or office of discountand deposit, have not, nor has either of them, paidin advance, or otherwise, the sum of fifteen thou-sand dollars, to the treasurer of the Western Shore,for the use of the State of Maryland, before theissuing of the said notes, or any of them, nor sincethose periods. And it is further admitted, that thetreasurer of the Western Shore of Maryland, underthe direction of the governor and council of the saidState, was ready, and offered to deliver to the saidPresident, Directors and Company of the saidBank, and to the said branch, or office of discount



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and deposit, stamped paper of the kind and denom-ination required and described in the said act ofassembly.

The question submitted to the Court for theirdecision in this case, is, as to the validity of the saidact of the general assembly of Maryland, on theground of its being repugnant to the constitution ofthe United States, and the act of Congress aforesaid,or to one of them. Upon the foregoing statement offacts, and the pleadings in this cause (all errors inwhich are hereby agreed to be mutually released), ifthe Court should be of opinion, that the plaintiffs areentitled to recover, then judgment, it is agreed, shallbe entered for the plaintiffs for twenty-five hundreddollars, and costs of suit. But if the Court should beof opinion, that the plaintiffs are not entitled torecover upon the statement and pleadings aforesaid,then judgment of non pros shall be entered, withcosts to the defendant.

It is agreed, that either party may appeal from thedecision of the County Court, to the Court of Appeals,and from the decision of the Court of Appeals to theSupreme Court of the United States, according to themodes and usages of law, and have the same benefit ofthis statement of facts, in the same manner as couldbe had, if a jury had been sworn and empanelled inthis cause, and a special verdict had been found, orthese facts had appeared and been stated in an excep-tion taken to the opinion of the Court, and the Court’sdirection to the jury thereon.

Copy of the act of the Legislature of the State ofMaryland, referred to in the preceding statement.

An Act to impose a Tax on all Banks or Branchesthereof, in the State of Maryland, not chartered by theLegislature.

Be it enacted by the General Assembly of Maryland,that if any Bank has established, or shall, withoutauthority from the State first had and obtained, estab-lish any branch, office of discount and deposit, oroffice of pay and receipt in any part of this State, itshall not be lawful for the said branch, office of dis-count and deposit, or office of pay and receipt, toissue notes, in any manner, of any other denomina-tion than five, ten, twenty, fifty, one hundred, fivehundred and one thousand dollars, and no note shallbe issued, except upon stamped paper of the follow-ing denominations; that is to say, every five dollarnote shall be upon a stamp of ten cents; every ten dol-lar note, upon a stamp of twenty cents; every twentydollar note, upon a stamp of thirty cents; every fiftydollar note, upon a stamp of fifty cents; every onehundred dollar note, upon a stamp of one dollar;

every five hundred dollar note, upon a stamp of tendollars; and every thousand dollar note, upon a stampof twenty dollars; which paper shall be furnished bythe treasurer of the Western Shore, under the direc-tion of the governor and council, to be paid for upondelivery; Provided always, that any institution of theabove description may relieve itself from the opera-tion of the provisions aforesaid, by paying annually, inadvance, to the treasurer of the Western Shore, forthe use of State, the sum of fifteen thousand dollars.

And be it enacted, that the President, Cashier,each of the Directors and Officers of every institu-tion established, or to be established as aforesaid,offending against the provisions aforesaid, shall for-feit a sum of five hundred dollars for each and everyoffence, and every person having any agency in cir-culating any note aforesaid, not stamped as aforesaiddirected, shall forfeit a sum not exceeding one hun-dred dollars every penalty aforesaid, to be recoveredby indictment, or action of debt, in the County Courtof the county where the offence shall be committed,one-half to the informer, and the other half to theuse of the State.

And be it enacted, that this act shall be in fullforce and effect from and after the first day of Maynext.

Mr. Chief Justice MARSHALL delivered theopinion of the Court.

In the case now to be determined, the defendant,a sovereign State, denies the obligation of a lawenacted by the legislature of the Union, and theplaintiff, on his part, contests the validity of an actwhich has been passed by the legislature of thatState. The constitution of our country, in its mostinteresting and vital parts, is to be considered; theconflicting powers of the government of the Unionand of its members, as marked in that constitution,are to be discussed; and an opinion given, which mayessentially influence the great operations of the gov-ernment. No tribunal can approach such a questionwithout a deep sense of its importance, and of theawful responsibility involved in its decision. But itmust be decided peacefully, or remain a source ofhostile legislation, perhaps, of hostility of a still moreserious nature; and if it is to be so decided, by thistribunal alone can the decision be made. On theSupreme Court of the United States has the consti-tution of our country devolved this important duty.

The first question made in the cause is, has Con-gress power to incorporate a bank?

It has been truly said, that this can scarcely beconsidered as an open question, entirely unpreju-



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diced by the former proceedings of the nationrespecting it. The principle now contested was intro-duced at a very early period of our history, has beenrecognised by many successive legislatures, and hasbeen acted upon by the judicial department, in casesof peculiar delicacy, as a law of undoubted obligation.

It will not be denied, that a bold and daringusurpation might be resisted, after an acquiescencestill longer and more complete than this. But it isconceived, that a doubtful question, one on whichhuman reason may pause, and the human judgmentbe suspended, in the decision of which the greatprinciples of liberty are not concerned, but therespective powers of those who are equally the repre-sentatives of the people, are to be adjusted; if not putat rest by the practice of the government, ought toreceive a considerable impression from that practice.An exposition of the constitution, deliberately estab-lished by legislative acts, on the faith of which animmense property has been advanced, ought not tobe lightly disregarded.

The power now contested was exercised by thefirst Congress elected under the present constitu-tion. The bill for incorporating the Bank of theUnited States did not steal upon an unsuspectinglegislature, and pass unobserved. Its principle wascompletely understood, and was opposed withequal zeal and ability. After being resisted, first, inthe fair and open field of debate, and afterwards, inthe executive cabinet, with as much persevering tal-ent as any measure has ever experienced, and beingsupported by arguments which convinced minds aspure and as intelligent as this country can boast, itbecame a law. The original act was permitted toexpire; but a short experience of the embarrass-ments to which the refusal to revive it exposed thegovernment, convinced those who were most preju-diced against the measure of its necessity, andinduced the passage of the present law. It wouldrequire no ordinary share of intrepidity, to assertthat a measure adopted under these circumstances,was a bold and plain usurpation, to which the con-stitution gave no countenance.

These observations belong to the cause; but theyare not made under the impression, that, were thequestion entirely new, the law would be found irrec-oncilable with the constitution.

In discussing this question, the counsel for theState of Maryland have deemed it of some impor-tance, in the construction of the constitution, toconsider that instrument, not as emanating fromthe people, but as the act of sovereign and inde-

pendent States. The powers of the general govern-ment, it has been said, are delegated by the States,who alone are truly sovereign; and must be exer-cised in subordination to the States, who alone pos-sess supreme dominion.

It would be difficult to sustain this proposition.The convention which framed the constitution wasindeed elected by the State legislatures. But theinstrument, when it came from their hands, was amere proposal, without obligation, or pretensions toit. It was reported to the then existing Congress ofthe United States, with a request that it might “besubmitted to a convention of delegates, chosen ineach State by the people thereof, under the recom-mendation of its legislature, for their assent and rat-ification.” This mode of proceeding was adopted; andby the convention, by Congress, and by the State leg-islatures, the instrument was submitted to the peo-ple. They acted upon it in the only manner in whichthey can act safely, effectively and wisely, on such asubject, by assembling in convention. It is true, theyassembled in their several States—and where elseshould they have assembled? No political dreamerwas ever wild enough to think of breaking down thelines which separate the States, and of compoundingthe American people into one common mass. Ofconsequence, when they act, they act in their States.But the measures they adopt do not, on that account,cease to be the measures of the people themselves,or become the measures of the State governments.

From these conventions, the constitution derivesits whole authority. The government proceeds directlyfrom the people; is “ordained and established,” in thename of the people; and is declared to be ordained, “inorder to form a more perfect union, establish justice,insure domestic tranquillity, and secure the blessingsof liberty to themselves and to their posterity.” Theassent of the States, in their sovereign capacity, isimplied, in calling a convention, and thus submittingthat instrument to the people. But the people were atperfect liberty to accept or reject it; and their act wasfinal. It required not the affirmance, and could not benegatived, by the State governments. The constitu-tion, when thus adopted, was of complete obligation,and bound the State sovereignties.

It has been said, that the people had already sur-rendered all their powers to the State sovereignties,and had nothing more to give. But, surely, the ques-tion whether they may resume and modify the pow-ers granted to government, does not remain to be set-tled in this country. Much more might the legitima-cy of the general government be doubted, had it been



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created by the States. The powers delegated to theState sovereignties were to be exercised by them-selves, not by a distinct and independent sovereign-ty, created by themselves. To the formation of aleague, such as was the confederation, the State sov-ereignties were certainly competent. But when, “inorder to form a more perfect union,” it was deemednecessary to change this alliance into an effectivegovernment, possessing great and sovereign powers,and acting directly on the people, the necessity ofreferring it to the people, and of deriving its powersdirectly from them, was felt and acknowledged by all.

The government of the Union, then (whatevermay be the influence of this fact on the case), 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 exer-cised directly on them, and for their benefit.

This government is acknowledged by all, to beone of enumerated powers. The principle, that it canexercise only the powers granted to it, would seemtoo apparent, to have required to be enforced by allthose arguments, which its enlightened friends,while it was depending before the people, found itnecessary to urge; that principle is now universallyadmitted. But the question respecting the extent ofthe powers actually granted, is perpetually arising,and will probably continue to arise, so long as oursystem shall exist.

In discussing these questions, the conflicting pow-ers of the general and State governments must bebrought into view, and the supremacy of their respec-tive laws, when they are in opposition, must be settled.

If any one proposition could command the uni-versal assent of mankind, we might expect it wouldbe this—that the government of the Union, thoughlimited in its powers, is supreme within its sphere ofaction. This would seem to result, necessarily, fromits nature. It is the government of all; its powers aredelegated by all; it represents all, and acts for all.Though any one State may be willing to control itsoperations, no State is willing to allow others to con-trol them. The nation, on those subjects on which itcan act, must necessarily bind its component parts.But this question is not left to mere reason: the peo-ple have, in express terms, decided it, by saying, “thisconstitution, and the laws of the United States,which shall be made in pursuance thereof,” “shall bethe supreme law of the land,” and by requiring thatthe members of the State legislatures, and the offi-cers of the executive and judicial departments of theStates, shall take the oath of fidelity to it.

The government of the United States, then,though limited in its powers, is supreme; and itslaws, when made in pursuance of the constitution,form the supreme law of the land, “anything in theconstitution or laws of any State to the contrarynotwithstanding.”

Among the enumerated powers, we do not findthat of establishing a bank or creating a corporation.But there is no phrase in the instrument which, likethe articles of confederation, excludes incidental orimplied powers; and which requires that everythinggranted shall be expressly and minutely described.Even the 10th amendment, which was framed forthe purpose of quieting the excessive jealousieswhich had been excited, omits the word “expressly,”and declares only, that the powers “not delegated tothe United States, nor prohibited to the States, arereserved to the States or to the people;” thus leavingthe question, whether the particular power whichmay become the subject of contest, has been delegat-ed to the one government, or prohibited to the other,to depend on a fair construction of the whole instru-ment. The men who drew and adopted this amend-ment had experienced the embarrassments resultingfrom the insertion of this word in the articles of con-federation, and probably omitted it, to avoid thoseembarrassments. A constitution, to contain an accu-rate detail of all the subdivisions of which its greatpowers will admit, and of all the means by whichthey may be carried into execution, would partake ofthe prolixity of a legal code, and could scarcely beembraced by the human mind. It would, probably,never be understood by the public. Its nature, there-fore, requires, that only its great outlines should bemarked, its important objects designated, and theminor ingredients which compose those objects, bededuced from the nature of the objects themselves.That this idea was entertained by the framers of theAmerican constitution, is not only to be inferredfrom the nature of the instrument, but from the lan-guage. Why else were some of the limitations, foundin the 9th section of the 1st article, introduced? It isalso, in some degree, warranted, by their havingomitted to use any restrictive term which might pre-vent its receiving a fair and just interpretation. Inconsidering this question, then, we must never forgetthat it is a constitution we are expounding.

Although, among the enumerated powers of gov-ernment, we do not find the word “bank” or “incor-poration,” we find the great powers, to lay and collecttaxes; to borrow money; to regulate commerce; todeclare and conduct a war; and to raise and support



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armies and navies. The sword and the purse, all theexternal relations, and no inconsiderable portion ofthe industry of the nation, are entrusted to its gov-ernment. It can never be pretended, that these vastpowers draw after them others of inferior impor-tance, merely because they are inferior. Such an ideacan never be advanced. But it may with great reasonbe contended, that a government, entrusted withsuch ample powers, on the due execution of whichthe happiness and prosperity of the nation so vitallydepends, must also be entrusted with ample meansfor their execution. The power being given, it is theinterest of the nation to facilitate its execution. It cannever be their interest, and cannot be presumed tohave been their intention, to clog and embarrass itsexecution, by withholding the most appropriatemeans. Throughout this vast republic, from the St.Croix to the Gulph of Mexico, from the Atlantic tothe Pacific, revenue is to be collected and expended,armies are to be marched and supported. The exigen-cies of the nation may require, that the treasureraised in the north should be transported to thesouth, that raised in the east, conveyed to the west,or that this order should be reversed. Is that con-struction of the constitution to be preferred, whichwould render these operations difficult, hazardousand expensive? Can we adopt that construction(unless the words imperiously require it), whichwould impute to the framers of that instrument,when granting these powers for the public good, theintention of impeding their exercise, by withholdinga choice of means? If, indeed, such be the mandateof the constitution, we have only to obey; but thatinstrument does not profess to enumerate the meansby which the powers it confers may be executed; nordoes it prohibit the creation of a corporation, if theexistence of such a being be essential, to the benefi-cial exercise of those powers. It is, then, the subjectof fair inquiry, how far such means may be employed.

It is not denied, that the powers given to the gov-ernment imply the ordinary means of execution.That, for example, of raising revenue, and applying itto national purposes, is admitted to imply the powerof conveying money from place to place, as the exi-gencies of the nation may require, and of employingthe usual means of conveyance. But it is denied, thatthe government has its choice of means; or, that itmay employ the most convenient means, if, toemploy them, it be necessary to erect a corporation.

On what foundation does this argument rest? Onthis alone: the power of creating a corporation, is oneappertaining to sovereignty, and is not expressly con-

ferred on Congress. This is true. But all legislativepowers appertain to sovereignty. The original powerof giving the law on any subject whatever, is a sover-eign power; and if the government of the Union isrestrained from creating a corporation, as a meansfor performing its functions, on the single reasonthat the creation of a corporation is an act of sover-eignty; if the sufficiency of this reason be acknowl-edged, there would be some difficulty in sustainingthe authority of Congress to pass other laws for theaccomplishment of the same objects.

The government which has a right to do an act,and has imposed on it, the duty of performing thatact, must, according to the dictates of reason, beallowed to select the means; and those who contendthat it may not select any appropriate means, thatone particular mode of effecting the object is except-ed, take upon themselves the burden of establishingthat exception.

The creation of a corporation, it is said, appertainsto sovereignty. This is admitted. But to what portionof sovereignty does it appertain? Does it belong to onemore than to another? In America, the powers of sov-ereignty are divided between the government of theUnion, and those of the States. They are each sover-eign, with respect to the objects committed to it, andneither sovereign, with respect to the objects commit-ted to the other. We cannot comprehend that train ofreasoning, which would maintain, that the extent ofpower granted by the people is to be ascertained, notby the nature and terms of the grant, but by its date.Some State constitutions were formed before, somesince that of the United States. We cannot believe,that their relation to each other is in any degreedependent upon this circumstance. Their respectivepowers must, we think, be precisely the same, as ifthey had been formed at the same time. Had theybeen formed at the same time, and had the peopleconferred on the general government the power con-tained in the constitution, and on the States thewhole residuum of power, would it have been assert-ed, that the government of the Union was not sover-eign, with respect to those objects which wereentrusted to it, in relation to which its laws weredeclared to be supreme? If this could not have beenasserted, we cannot well comprehend the process ofreasoning which maintains, that a power appertainingto sovereignty cannot be connected with that vastportion of it which is granted to the general govern-ment, so far as it is calculated to subserve the legiti-mate objects of that government. The power of creat-ing a corporation, though appertaining to sovereignty,



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is not, like the power of making war, or levying taxes,or of regulating commerce, a great substantive andindependent power, which cannot be implied as inci-dental to other powers, or used as a means of execut-ing them. It is never the end for which other powersare exercised, but a means by which other objects areaccomplished. No contributions are made to charity,for the sake of an incorporation, but a corporation iscreated to administer the charity; no seminary oflearning is instituted, in order to be incorporated, butthe corporate character is conferred to subserve thepurposes of education. No city was ever built, withthe sole object of being incorporated, but is incorpo-rated as affording the best means of being well gov-erned. The power of creating a corporation is neverused for its own sake, but for the purpose of effectingsomething else. No sufficient reason is, therefore,perceived, why it may not pass as incidental to thosepowers which are expressly given, if it be a directmode of executing them.

But the constitution of the United States has notleft the right of Congress to employ the necessarymeans, for the execution of the powers conferred onthe government, to general reasoning. To its enumer-ation of powers is added, that of making “all lawswhich shall be necessary and proper, for carrying intoexecution the foregoing powers, and all other powersvested by this constitution, in the government of theUnited States, or in any department thereof.”

The counsel for the State of Maryland have urgedvarious arguments, to prove that this clause, though,in terms, a grant of power, is not so, in effect; but isreally restrictive of the general right, which mightotherwise be implied, of selecting means for execut-ing the enumerated powers.

In support of this proposition, they have found itnecessary to contend, that this clause was insertedfor the purpose of conferring on Congress the powerof making laws. That, without it, doubts might beentertained, whether Congress could exercise itspowers in the form of legislation.

But could this be the object for which it wasinserted? A government is created by the people, hav-ing legislative, executive and judicial powers. Its leg-islative powers are vested in a Congress, which is toconsist of a Senate and House of Representatives.Each house may determine the rule of its proceed-ings; and it is declared, that every bill which shallhave passed both houses, shall, before it becomes alaw, be presented to the President of the UnitedStates. The 7th section describes the course of pro-ceedings, by which a bill shall become a law; and,

then, the 8th section enumerates the powers of Con-gress. Could it be necessary to say, that a legislatureshould exercise legislative powers, in the shape oflegislation? After allowing each house to prescribe itsown course of proceeding, after describing the man-ner in which a bill should become a law, would ithave entered into the mind of a single member of theconvention, that an express power to make laws wasnecessary, to enable the legislature to make them?That a legislature, endowed with legislative powers,can legislate, is a proposition too self-evident to havebeen questioned.

But the argument on which most reliance isplaced, is drawn from that peculiar language of thisclause. Congress is not empowered by it to make alllaws, which may have relation to the powers con-ferred on the government, but such only as may be“necessary and proper” for carrying them into execu-tion. The word “necessary” is considered as control-ling the whole sentence, and as limiting the right topass laws for the execution of the granted powers, tosuch as are indispensable, and without which thepower would be nugatory. That it excludes the choiceof means, and leaves to Congress, in each case, thatonly which is most direct and simple.

Is it true, that this is the sense in which the word“necessary” is always used? Does it always import anabsolute physical necessity, so strong, that one thingto which another may be termed necessary, cannotexist without that other? We think it does not. If ref-erence be had to its use, in the common affairs of theworld, or in approved authors, we find that it fre-quently imports no more than that one thing is con-venient, or useful, or essential to another. To employthe means necessary to an end, is generally under-stood as employing any means calculated to producethe end, and not as being confined to those singlemeans, without which the end would be entirelyunattainable. Such is the character of human lan-guage, that no word conveys to the mind, in all situ-ations, one single definite idea; and nothing is morecommon than to use words in a figurative sense.Almost all compositions contain words, which, takenin a their rigorous sense, would convey a meaningdifferent from that which is obviously intended. It isessential to just construction, that many wordswhich import something excessive, should be under-stood in a more mitigated sense—in that sense whichcommon usage justifies. The word “necessary” is ofthis description. It has not a fixed character, peculiarto itself. It admits of all degrees of comparison; andis often connected with other words, which increase



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or diminish the impression the mind receives of theurgency it imports. A thing may be necessary, verynecessary, absolutely or indispensably necessary. Tono mind would the same idea be conveyed by theseseveral phrases. The comment on the word is wellillustrated by the passage cited at the bar, from the10th section of the 1st article of the constitution. Itis, we think, impossible to compare the sentencewhich prohibits a State from laying “imposts, orduties on imports or exports, except what may beabsolutely necessary for executing its inspectionlaws,” with that which authorizes Congress “to makeall laws which shall be necessary and proper for car-rying into execution” the powers of the general gov-ernment, without feeling a conviction, that the con-vention understood itself to change materially themeaning of the word “necessary,” by prefixing theword “absolutely.” This word, then, like others, isused in various senses; and, in its construction, thesubject, the context, the intention of the personusing them, are all to be taken into view.

Let this be done in the case under consideration.The subject is the execution of those great powerson which the welfare of a nation essentiallydepends. It must have been the intention of thosewho gave these powers, to insure, so far as humanprudence could insure, their beneficial execution.This could not be done, by confiding the choice ofmeans to such narrow limits as not to leave it in thepower of Congress to adopt any which might beappropriate, and which were conducive to the end.This provision is made in a constitution, intended toendure for ages to come, and consequently, to beadapted to the various crises of human affairs. Tohave prescribed the means by which governmentshould, in all future time, execute its powers, wouldhave been to change, entirely, the character of theinstrument, and give it the properties of a legalcode. It would have been an unwise attempt to pro-vide, by immutable rules, for exigencies which, ifforeseen at all, must have been seen dimly, andwhich can be best provided for as they occur. Tohave declared, that the best means shall not beused, but those alone, without which the powergiven would be nugatory, would have been to deprivethe legislature of the capacity to avail itself of expe-rience, to exercise its reason, and to accommodateits legislation to circumstances. If we apply thisprinciple of construction to any of the powers of thegovernment, we shall find it so pernicious in itsoperation that we shall be compelled to discard it.The powers vested in Congress may certainly be car-

ried into execution, without prescribing an oath ofoffice. The power to exact this security for the faith-ful performance of duty, is not given, nor is it indis-pensably necessary. The different departments maybe established; taxes may be imposed and collected;armies and navies may be raised and maintained;and money may be borrowed, without requiring anoath of office. It might be argued, with as muchplausibility as other incidental powers have beenassailed, that the convention was not unmindful ofthis subject. The oath which might be exacted—thatof fidelity to the constitution—is prescribed, and noother can be required. Yet, he would be charged withinsanity, who should contend, that the legislaturemight not superadd, to the oath directed by the con-stitution, such other oath of office as its wisdommight suggest.

So, with respect to the whole penal code of theUnited States: whence arises the power to punish, incases not prescribed by the constitution? All admit,that the government may, legitimately, punish any vio-lation of its laws; and yet, this is not among the enu-merated powers of Congress. The right to enforce theobservance of law, by punishing its infraction, mightbe denied, with the more plausibility, because it isexpressly given in some cases. Congress is empow-ered “to provide for the punishment of counterfeitingthe securities and current coin of the United States,”and “to define and punish piracies and felonies com-mitted on the high seas, and offences against the lawof nations.” The several powers of Congress mayexist, in a very imperfect State, to be sure, but theymay exist and be carried into execution, although nopunishment should be inflicted, in cases where theright to punish is not expressly given.

Take, for example, the power “to establish post-offices and post-roads.” This power is executed, bythe single act of making the establishment. But, fromthis has been inferred the power and duty of carryingthe mail along the post-road, from one post-office toanother. And from this implied power, has again beeninferred the right to punish those who steal lettersfrom the post-office, or rob the mail. It may be said,with some plausibility, that the right to carry the mail,and to punish those who rob it, is not indispensablynecessary to the establishment of a post-office andpost-road. This right is indeed essential to the benefi-cial exercise of the power, but not indispensably nec-essary to its existence. So, of the punishment of thecrimes of stealing or falsifying a record or process ofa Court of the United States, or of perjury in suchCourt. To punish these offences, is certainly con-



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ducive to the due administration of justice. Butcourts may exist, and may decide the causes broughtbefore them, though such crimes escape punishment.

The baneful influence of this narrow constructionon all the operations of the government, and theabsolute impracticability of maintaining it, withoutrendering the government incompetent to its greatobjects, might be illustrated by numerous examplesdrawn from the constitution, and from our laws. Thegood sense of the public has pronounced, without hes-itation, that the power of punishment appertains tosovereignty, and may be exercised, whenever the sov-ereign has a right to act, as incidental to his constitu-tional powers. It is a means for carrying into executionall sovereign powers, and may be used, although notindispensably necessary. It is a right incidental to thepower, and conducive to its beneficial exercise.

If this limited construction of the word “neces-sary” must be abandoned, in order to punish, whenceis derived the rule which would reinstate it, when thegovernment would carry its powers into execution, bymeans not vindictive in their nature? If the word“necessary” means “needful,” “requisite,” “essential,”“conducive to,” in order to let in the power of punish-ment for the infraction of law; why is it not equallycomprehensive, when required to authorize the use ofmeans which facilitate the execution of the powers ofgovernment, without the infliction of punishment?

In ascertaining the sense in which the word “neces-sary” is used in this clause of the constitution, we mayderive some aid from that with which it is associated.Congress shall have power “to make all laws whichshall be necessary and proper to carry into execution”the powers of the government. If the word “necessary”was used in that strict and rigorous sense for which thecounsel for the State of Maryland contend, it would bean extraordinary departure from the usual course ofthe human mind, as exhibited in composition, to add aword, the only possible effect of which is, to qualifythat strict and rigorous meaning; to present to themind the idea of some choice of means of legislation,not strained and compressed within the narrow limitsfor which gentlemen contend.

But the argument which most conclusivelydemonstrates the error of the construction contend-ed for by the counsel for the State of Maryland, isfounded on the intention of the convention, as man-ifested in the whole clause. To waste time and argu-ment in proving that, without it, Congress mightcarry its powers into execution, would be not muchless idle, than to hold a lighted taper to the sun. Aslittle can it be required to prove, that in the absence

of this clause, Congress would have some choice ofmeans. That it might employ those which, in its judg-ment, would most advantageously effect the object tobe accomplished. That any means adapted to theend, any means which tended directly to the execu-tion of the constitutional powers of the government,were in themselves constitutional. This clause, asconstrued by the State of Maryland, would abridge,and almost annihilate, this useful and necessaryright of the legislature to select its means. That thiscould not be intended, is, we should think, had it notbeen already controverted, too apparent for contro-versy. We think so for the following reasons:

1st. The clause is placed among the powers ofCongress, not among the limitations on those powers.

2nd. Its terms purport to enlarge, not to diminishthe powers vested in the government. It purports tobe an additional power, not a restriction on thosealready granted. No reason has been, or can beassigned, for thus concealing an intention to narrowthe discretion of the national legislature, underwords which purport to enlarge it. The framers of theconstitution wished its adoption, and well knew thatit would be endangered by its strength, not by itsweakness. Had they been capable of using languagewhich would convey to the eye one idea, and, afterdeep reflection, impress on the mind, another, theywould rather have disguised the grant of power, thanits limitation. If, then, their intention had been, bythis clause, to restrain the free use of means whichmight otherwise have been implied, that intentionwould have been inserted in another place, andwould have been expressed in terms resemblingthese. “In carrying into execution the foregoing pow-ers, and all others,” &c., “no laws shall be passed butsuch as are necessary and proper.” Had the intentionbeen to make this clause restrictive, it would unques-tionably have been so in form as well as in effect.

The result of the most careful and attentive con-sideration bestowed upon this clause is, that if itdoes not enlarge, it cannot be construed to restrainthe powers of Congress, or to impair the right of thelegislature to exercise its best judgment in the selec-tion of measures to carry into execution the constitu-tional powers of the government. If no other motivefor its insertion can be suggested, a sufficient one isfound in the desire to remove all doubts respectingthe right to legislate on that vast mass of incidentalpowers which must be involved in the constitution, ifthat instrument be not a splendid bauble.

We admit, as all must admit, that the powers ofthe government are limited, and that its limits are



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not to be transcended. But we think the sound con-struction of the constitution must allow to thenational legislature that discretion, with respect tothe means by which the powers it confers are to becarried into execution, which will enable that body toperform the high duties assigned to it, in the mannermost beneficial to the people. Let the end be legiti-mate, let it be within the scope of the constitution,and all means which are appropriate, which areplainly adapted to that end, which are not prohibit-ed, but consist with the letter and spirit of the con-stitution, are constitutional.

That a corporation must be considered as ameans not less usual, not of higher dignity, not morerequiring a particular specification than othermeans, has been sufficiently proved. If we look to theorigin of corporations, to the manner in which theyhave been framed in that government from which wehave derived most of our legal principles and ideas,or to the uses to which they have been applied, wefind no reason to suppose, that a constitution, omit-ting, and wisely omitting, to enumerate all the meansfor carrying into execution the great powers vested ingovernment, ought to have specified this. Had itbeen intended to grant this power, as one whichshould be distinct and independent, to be exercisedin any case whatever, it would have found a placeamong the enumerated powers of the government.But being considered merely as a means, to beemployed only for the purpose of carrying into exe-cution the given powers, there could be no motivefor particularly mentioning it.

The propriety of this remark would seem to begenerally acknowledged, by the universal acquies-cence in the construction which has been uniformlyput on the 3rd section of the 4th article of the con-stitution. The power to “make all needful rules andregulations respecting the territory or other propertybelonging to the United States,” is not more compre-hensive, than the power “to make all laws whichshall be necessary and proper for carrying into execu-tion” the powers of the government. Yet all admit theconstitutionality of a territorial government, which isa corporate body.

If a corporation may be employed, indiscriminate-ly with other means, to carry into execution the pow-ers of the government, no particular reason can beassigned for excluding the use of a bank, if requiredfor its fiscal operations. To use one, must be withinthe discretion of Congress, if it be an appropriatemode of executing the powers of government. That itis a convenient, a useful, and essential instrument in

the prosecution of its fiscal operations, is not now asubject of controversy. All those who have been con-cerned in the administration of our finances, haveconcurred in representing its importance and neces-sity; and so strongly have they been felt, that states-men of the first class, whose previous opinionsagainst it had been confirmed by every circumstancewhich can fix the human judgment, have yieldedthose opinions to the exigencies of the nation. Underthe confederation, Congress, justifying the measureby its necessity, transcended, perhaps, its powers, toobtain the advantage of a bank; and our own legisla-tion attests the universal conviction of the utility ofthis measure. The time has passed away, when it canbe necessary to enter into any discussion, in order toprove the importance of this instrument, as a meansto effect the legitimate objects of the government.

But, were its necessity less apparent, none candeny its being an appropriate measure; and if it is,the decree of its necessity, as has been very justlyobserved, is to be discussed in another place. ShouldCongress, in the execution of its powers, adopt meas-ures which are prohibited by the constitution; orshould Congress, under the pretext of executing itspowers, pass laws for the accomplishment of objectsnot entrusted to the government; it would becomethe painful duty of this tribunal, should a caserequiring such a decision come before it, to say, thatsuch an act was not the law of the land. But wherethe law is not prohibited, and is really calculated toeffect any of the objects entrusted to the govern-ment, to undertake here to inquire into the decree ofits necessity, would be to pass the line which circum-scribes the judicial department, and to tread on leg-islative ground. This Court disclaims all pretensionsto such a power.

After this declaration, it can scarcely be necessaryto say, that the existence of State banks can have nopossible influence on the question. No trace is to befound in the constitution, of an intention to create adependence of the government of the Union onthose of the States, for the execution of the greatpowers assigned to it. Its means are adequate to itsends; and on those means alone was it expected torely for the accomplishment of its ends. To imposeon it the necessity of resorting to means which itcannot control, which another government may fur-nish or withhold, would render its course precarious,the result of its measures uncertain, and create adependence on other governments, which might dis-appoint its most important designs, and is incompat-ible with the language of the constitution. But were



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it otherwise, the choice of means implies a right tochoose a national bank in preference to State banks,and Congress alone can make the election.

After the most deliberate consideration, it is theunanimous and decided opinion of this Court, thatthe act to incorporate the Bank of the United Statesis a law made in pursuance of the constitution, andis a part of the supreme law of the land.

The branches, proceeding from the same stock,and being conducive to the complete accomplish-ment of the object, are equally constitutional. Itwould have been unwise, to locate them in the char-ter, and it would be unnecessarily inconvenient, toemploy the legislative power in making those subor-dinate arrangements. The great duties of the bankare prescribed; those duties require branches; andthe bank itself may, we think, be safely trusted withthe selection of places where those branches shall befixed; reserving always to the government the right torequire that a branch shall be located where it maybe deemed necessary.

It being the opinion of the Court, that the actincorporating the bank is constitutional; and that thepower of establishing a branch in the State of Mary-land might be properly exercised by the bank itself,we proceed to inquire—

2. Whether the State of Maryland may, withoutviolating the constitution, tax that branch?

That the power of taxation is one of vital impor-tance; that it is retained by the States; that it is notabridged by the grant of a similar power to the gov-ernment of the Union; that it is to be concurrentlyexercised by the two governments—are truths whichhave never been denied. But such is the paramountcharacter of the constitution, that its capacity towithdraw any subject from the action of even thispower, is admitted. The States are expressly forbid-den to lay any duties on imports or exports, exceptwhat may be absolutely necessary for executing theirinspection laws. If the obligation of this prohibitionmust be conceded—if it may restrain a State fromthe exercise of its taxing power on imports andexports—the same paramount character would seemto restrain, as it certainly may restrain, a State fromsuch other exercise of this power, as is in its natureincompatible with, and repugnant to, the constitu-tional laws of the Union. A law, absolutely repugnantto another, as entirely repeals that other as if expressterms of repeal were used.

On this ground, the counsel for the bank place itsclaim to be exempted from the power of a State to taxits operations. There is no express provision for the

case, but the claim has been sustained on a principlewhich so entirely pervades the constitution, is sointermixed with the materials which compose it, sointerwoven with its web, so blended with its texture,as to be incapable of being separated from it, withoutrending it into shreds.

This great principle is, that the constitution andthe laws made in pursuance thereof are supreme;that they control the constitution and laws of therespective States, and cannot be controlled by them.From this, which may be almost termed an axiom,other propositions are deduced as corollaries, on thetruth or error of which, and on their application tothis case, the cause has been supposed to depend.These are, 1st. That a power to create implies apower to preserve: 2nd. That a power to destroy, ifwielded by a different hand, is hostile to, and incom-patible with these powers to create and to preserve:3d. That where this repugnancy exists, that authori-ty which is supreme must control, not yield to thatover which it is supreme.

These propositions, as abstract truths, would, per-haps, never be controverted. Their application to thiscase, however, has been denied; and both in main-taining the affirmative and the negative, a splendorof eloquence, and strength of argument, seldom, ifever, surpassed, have been displayed.

The power of Congress to create, and of course,to continue, the bank, was the subject of the preced-ing part of this opinion; and is no longer to be con-sidered as questionable.

That the power of taxing it by the States may beexercised so as to destroy it, is too obvious to bedenied. But taxation is said to be an absolute power,which acknowledges no other limits than thoseexpressly prescribed in the constitution, and like sov-ereign power of every other description, is entrustedto the discretion of those who use it. But the veryterms of this argument admit, that the sovereignty ofthe State, in the article of taxation itself, is subordi-nate to, and may be controlled by the constitution ofthe United States. How far it has been controlled bythat instrument, must be a question of construction.In making this construction, no principle, notdeclared, can be admissible, which would defeat thelegitimate operations of a supreme government. It isof the very essence of supremacy, to remove all obsta-cles to its action within its own sphere, and so tomodify every power vested in subordinate govern-ments, as to exempt its own operations from theirown influence. This effect need not be stated interms. It is so involved in the declaration of suprema-



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cy, so necessarily implied in it, that the expression ofit could not make it more certain. We must, therefore,keep it in view, while construing the constitution.

The argument on the part of the State of Mary-land, is, not that the States may directly resist a lawof Congress, but that they may exercise theiracknowledged powers upon it, and that the constitu-tion leaves them this right, in the confidence thatthey will not abuse it.

Before we proceed to examine this argument, andto subject it to test of the constitution, we must bepermitted to bestow a few considerations on thenature and extent of this original right of taxation,which is acknowledged to remain with the States. Itis admitted, that the power of taxing the people andtheir property, is essential to the very existence ofgovernment, and may be legitimately exercised onthe objects to which it is applicable, to the utmostextent to which the government may choose to carryit. The only security against the abuse of this power,is found in the structure of the government itself. Inimposing a tax, the legislature acts upon its con-stituents. This is, in general, a sufficient securityagainst erroneous and oppressive taxation.

The people of a State, therefore, give to their gov-ernment a right of taxing themselves and their prop-erty, and as the exigencies of government cannot belimited, they prescribe no limits to the exercise ofthis right, resting confidently on the interest of thelegislator, and on the influence of the constituentover their representative, to guard them against itsabuse. But the means employed by the governmentof the Union have no such security, nor is the rightof a State to tax them sustained by the same theory.Those means are not given by the people of a partic-ular State, not given by the constituents of the legis-lature, which claim the right to tax them, but by thepeople of all the States. They are given by all, for thebenefit of all—and upon theory, should be subjectedto that government only which belongs to all.

It may be objected to this definition, that thepower of taxation is not confined to the people andproperty of a State. It may be exercised upon everyobject brought within its jurisdiction.

This is true. But to what source do we trace thisright? It is obvious, that it is an incident of sovereign-ty, and is co-extensive with that to which it is an inci-dent. All subjects over which the sovereign power ofa State extends, are objects of taxation; but thoseover which it does not extend, are, upon the sound-est principles, exempt from taxation. This proposi-tion may almost be pronounced self-evident.

The sovereignty of a State extends to everythingwhich exists by its own authority, or is introduced by itspermission; but does it extend to those means whichare employed by Congress to carry into execution pow-ers conferred on that body by the people of the UnitedStates? We think it demonstrable, that it does not.Those powers are not given by the people of a singleState. They are given by the people of the UnitedStates, to a government whose laws, made in pur-suance of the constitution, are declared to be supreme.Consequently, the people of a single State cannot con-fer a sovereignty which will extend over them.

If we measure the power of taxation residing in aState, by the extent of sovereignty which the people ofa single State possess, and can confer on its govern-ment, we have an intelligible standard, applicable toevery case to which the power may be applied. Wehave a principle which leaves the power of taxing thepeople and property of a State unimpaired; whichleaves to a State the command of all its resources, andwhich places beyond its reach, all those powers whichare conferred by the people of the United States onthe government of the Union, and all those meanswhich are given for the purpose of carrying those pow-ers into execution. We have a principle which is safefor the States, and safe for the Union. We are relieved,as we ought to be, from clashing sovereignty; frominterfering powers; from a repugnancy between a rightin one government to pull down, what there is anacknowledged right in another to build up; from theincompatibility of a right in one government todestroy, what there is a right in another to preserve.We are not driven to the perplexing inquiry, so unfitfor the judicial department, what degree of taxation isthe legitimate use, and what degree may amount tothe abuse of the power. The attempt to use it on themeans employed by the government of the Union, inpursuance of the constitution, is itself an abuse,because it is the usurpation of a power which the peo-ple of a single State cannot give.

We find, then, on just theory, a total failure of thisoriginal right to tax the means employed by the gov-ernment of the Union, for the execution of its pow-ers. The right never existed, and the questionwhether it has been surrendered, cannot arise.

But, waiving this theory for the present, let usresume the inquiry, whether this power can be exer-cised by the respective States, consistently with a fairconstruction of the constitution?

That the power to tax involves the power todestroy; that the power to destroy may defeat andrender useless the power to create; that there is a



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plain repugnance in conferring on one government apower to control the constitutional measures ofanother, which other, with respect to those verymeasures, is declared to be supreme over that whichexerts the control, are propositions not to be denied.But all inconsistencies are to be reconciled by themagic of the word CONFIDENCE. Taxation, it issaid, does not necessarily and unavoidably destroy.To carry it to the excess of destruction, would be anabuse, to presume which, would banish that confi-dence which is essential to all government.

But is this a case of confidence? Would the peo-ple of any one State trust those of another with apower to control the most insignificant operations oftheir State government? We know they would not.Why, then, should we suppose, that the people of anyone State should be willing to trust those of anotherwith a power to control the operations of a govern-ment to which they have confided their most impor-tant and most valuable interests? In the legislature ofthe Union alone, are all represented. The legislatureof the Union alone, therefore, can be trusted by thepeople with the power of controlling measures whichconcern all, in the confidence that it will not beabused. This, then, is not a case of confidence, andwe must consider it is as it really is.

If we apply the principle for which the State ofMaryland contends, to the constitution, generally, weshall find it capable of changing totally the character ofthat instrument. We shall find it capable of arresting allthe measures of the government, and of prostrating itat the foot of the States. The American people havedeclared their constitution and the laws made in pur-suance thereof, to be supreme; but this principle wouldtransfer the supremacy, in fact, to the States.

If the States may tax one instrument, employedby the government in the execution of its powers,they may tax any and every other instrument. Theymay tax the mail; they may tax the mint; they maytax patent-rights; they may tax the papers of the cus-tom-house; they may tax judicial process; they maytax all the means employed by the government, to anexcess which would defeat all the ends of govern-ment. This was not intended by the American peo-ple. They did not design to make their governmentdependent on the States.

Gentlemen say, they do not claim the right toextend State taxation to these objects. They limittheir pretensions to property. But on what principle,is this distinction made? Those who make it have fur-nished no reason for it, and the principle for whichthey contend denies it. They contend, that the power

of taxation has no other limit than is found in the10th section of the 1st article of the constitution;that, with respect to everything else, the power of theStates is supreme, and admits of no control. If thisbe true, the distinction between property and othersubjects to which the power of taxation is applicable,is merely arbitrary, and can never be sustained. Thisis not all. If the controlling power of the States beestablished; if their supremacy as to taxation beacknowledged; what is to restrain their exercisingcontrol in any shape they may please to give it? Theirsovereignty is not confined to taxation; that is not theonly mode in which it might be displayed. The ques-tion is, in truth, a question of supremacy; and if theright of the States to tax the means employed by thegeneral government be conceded, the declarationthat the constitution, and the laws made in pur-suance thereof, shall be the supreme law of the land,is empty and unmeaning declamation.

In the course of the argument, the Federalist hasbeen quoted; and the opinions expressed by theauthors of that work have been justly supposed to beentitled to great respect in expounding the constitu-tion. No tribute can be paid to them which exceedstheir merit; but in applying their opinions to the caseswhich may arise in the progress of our government, aright to judge of their correctness must be retained;and to understand the argument, we must examinethe proposition it maintains, and the objectionsagainst which it is directed. The subject of thosenumbers, from which passages have been cited, is theunlimited power of taxation which is vested in thegeneral government. The objection to this unlimitedpower, which the argument seeks to remove, is statedwith fullness and clearness. It is, “that an indefinitepower of taxation in the latter (the government of theUnion) might, and probably would, in time, deprivethe former (the government of the States) of themeans of providing for their own necessities; andwould subject them entirely to the mercy of thenational legislature. As the laws of the Union are tobecome the supreme law of the land; as it is to havepower to pass all laws that may be necessary for car-rying into execution the authorities with which it isproposed to vest it; the national government might, atany time, abolish the taxes imposed for State objects,upon the pretence of an interference with its own. Itmight allege a necessity for doing this, in order to giveefficacy to the national revenues; and thus, all theresources of taxation might, by degrees, become thesubjects of federal monopoly, to the entire exclusionand destruction of the State governments.”



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The objections to the constitution which arenoticed in these numbers, were to the undefinedpower of the government to tax, not to the incidentalprivilege of exempting its own measures from Statetaxation. The consequences apprehended from thisundefined power were, that it would absorb all theobjects of taxation, “to the exclusion and destructionof the State governments.” The arguments of the Fed-eralist are intended to prove the fallacy of these appre-hensions; not to prove that the government was inca-pable of executing any of its powers, without exposingthe means it employed to the embarrassments of Statetaxation. Arguments urged against these objections,and these apprehensions, are to be understood asrelating to the points they mean to prove. Had theauthors of those excellent essays been asked, whetherthey contended for that construction of the constitu-tion, which would place within the reach of the Statesthose measures which the government might adopt forthe execution of its powers; no man, who has readtheir instructive pages, will hesitate to admit, thattheir answer must have been in the negative.

It has also been insisted, that, as the power of tax-ation in the general and State governments isacknowledged to be concurrent, every argumentwhich would sustain the right of the general govern-ment to tax banks chartered by the States, will equal-ly sustain the right of the States to tax banks char-tered by the general government.

But the two cases are not on the same reason.The people of all the States have created the generalgovernment, and have conferred upon it the generalpower of taxation. The people of all the States, andthe States themselves, are represented in Congress,and, by their representatives, exercise this power.When they tax the chartered institutions of theStates, they tax their constituents; and these taxesmust be uniform. But when a State taxes the opera-tions of the government of the United States, it actsupon institutions created, not by their own con-stituents, but by people over whom they claim nocontrol. It acts upon the measures of a governmentcreated by others as well as themselves, for the ben-efit of others in common with themselves. The dif-ference is that which always exists, and always mustexist, between the action of the whole on a part, andthe action of a part on the whole—between the lawsof a government declared to be supreme, and thoseof a government which, when in opposition to thoselaws, is not supreme.

But if the full application of this argument couldbe admitted, it might bring into question the right of

Congress to tax the State banks, and could not provethe rights of the States to tax the Bank of the UnitedStates.

The Court has bestowed on this subject its mostdeliberate consideration. The result is a convictionthat the States have no power, by taxation or other-wise, to retard, impede, burden, or in any mannercontrol, the operations of the constitutional lawsenacted by Congress to carry into execution the pow-ers vested in the general government. This is, wethink, the unavoidable consequence of that suprema-cy which the constitution has declared.

We are unanimously of opinion, that the lawpassed by the legislature of Maryland, imposing a taxon the Bank of the United States, is unconstitution-al and void.

This opinion does not deprive the States of anyresources which they originally possessed. It doesnot extend to a tax paid by the real property of thebank, in common with the other real property withinthe State, nor to a tax imposed on the interest whichthe citizens of Maryland may hold in this institution,in common with other property of the same descrip-tion throughout the State. But this is a tax on theoperations of the bank, and is, consequently, a tax onthe operation of an instrument employed by the gov-ernment of the Union to carry its powers into execu-tion. Such a tax must be unconstitutional.

JUDGMENT. This cause came on to be heard, onthe transcript of the record of the Court of Appealsof the State of Maryland, and was argued by counsel:on consideration whereof, it is the opinion of thisCourt, that the act of the legislature of Maryland iscontrary to the constitution of the United States, andvoid; and therefore, that the said Court of Appeals ofthe State of Maryland erred, in affirming the judg-ment of the Baltimore County Court, in which judg-ment was rendered against James W. McCulloch; butthat the said Court of Appeals of Maryland ought tohave reversed the said judgment of the said Balti-more County Court, and ought to have given judg-ment for the said appellant, McCulloch: It is, there-fore, adjudged and ordered, that the said judgment ofthe said Court of Appeals of the State of Maryland inthis case, be, and the same hereby is, reversed andannulled. And this Court, proceeding to render suchjudgment as the said Court of Appeals should haverendered; it is further adjudged and ordered, that thejudgment of the said Baltimore County Court bereversed and annulled, and that judgment be enteredin the said Baltimore County Court for the saidJames W. McCulloch.
