Author: James Madison
In a direct attack on the new national bank, Maryland actually imposed a tax on its bank notes. The bank sued in federal court and in 1819 the Supreme Court rendered its decision in the landmark case of McCullough v. Maryland, which established the constitutionality of the second bank of the United States and denied states the right to exert an independent check on federal authority.
In his decision, Chief Justice John Marshall dealt with two fundamental questions. The first was whether the federal government had the power to incorporate a bank. The justices said that the answer to this question was yes, because the Constitution granted Congress implied powers to do whatever was “necessary and proper” to carry out its constitutional powers–in this case the power to manage a currency. The second question was whether a state had the power to tax the notes issued by the bank. The court said no, ruling that the Constitution had created a new government with sovereign power over the states.
Here, the “father of the Constitution” criticizes the court’s decision, fearing that Marshall’s broad construction of “necessary and proper” means will open the way to unlimited kinds of legislative tyranny.
I have rec[eive]d your favor [letter]…enclosing a copy of your observations on the Judgment of the Supreme Court of the U.S. in the case of McCulloch agst. the State of Maryland, and I have found their latitudinary mode of expounding the Constitution combated in them with the ability and the force which were to be expected.
It appears to me as it does to you that the occasion did not call for the general and abstract doctrine interwoven with the decision of the particular case. I have always supposed that the meaning of a law, and for a like reason, of a Constitution so far as it depends on Judicial interpretation, was to result from a course of particular decisions, and not those from a previous and abstract comment on the subject. The example in this instance tends to reverse the rule and to forego the illustration to be derived from a series of cases actually occurring for adjudication….
But what is of most importance is the high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks extended by a specification of the powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned. In the great system of political economy having for its general object the national welfare, every thing is related immediately or remotely to every other thing; and consequently a power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other…. The British Parliament in collecting a revenue from the commerce of America found no difficulty in calling it either a tax for the regulation of trade, or a regulation of trade with a view to the tax as it suited the argument or the policy of the moment.
Is there a Legislative power in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified power!
Does not the Court also relinquish by their doctrine, all control on the Legislative exercise of unconstitutional powers?… Suppose Congress should, as would doubtless happen, pass unconstitutional laws not to accomplish objects not specified in the Constitution, but the same laws as means expedient, convenient or conducive to the accomplishment of objects entrusted to the Government; by what handle should the Court take hold of the cases?…
It was anticipated I believe by few if any of the friends of the Constitution, that a rule of construction would be introduced as broad & as pliant as what has occurred…. There is certainly a reasonable medium between expounding the Constitution with the strictness of a penal law, or other ordinary Statue, and expounding it with a laxity which may vary its essential character; and encroach on the local sovereignties with wch. it was meant to be reconcilable.
Source: Gilder Lehrman Institute