Guest Essayist: Professor Robert Lowry Clinton


McCulloch v. Maryland, 4 Wheaton (17 U.S.) 316 (1819), is widely regarded as the landmark case defining the boundaries of power between national and state government in the American federal system. In McCulloch, the United States Supreme Court, in a unanimous opinion written by Chief Justice John Marshall, explored the extent of implied congressional power under the Necessary and Proper Clause of Article I, Section 8 of the Constitution. The Court also determined the effect of the National Supremacy Clause in Article VI when an exercise of state authority conflicts with a national law.

The case arose when McCulloch, cashier of the Baltimore branch of the Second Bank of the United States, refused to pay a stamp tax which had been levied on the assets of banks not chartered by the Maryland legislature. McCulloch claimed that it was not within the power of a state to tax a congressionally-chartered instrument of the national government. Maryland sued and won in its own courts, and McCulloch appealed to the U. S. Supreme Court.

Counsel for Maryland presented the Supreme Court with two major arguments. First, the state contended that Congress had no power to charter a national bank in the first place, since no such power is specified in Article I, Section 8 or anywhere else in the Constitution. Second, the state contended that even if Congress had such power, the state was acting within its legitimate taxing authority when it taxed a bank doing business in its territory.

After enumerating the powers of Congress in the first 17 clauses of  Article I, Section 8, the Constitution adds an “implied” power to enact laws that are deemed “necessary and proper” for making the other powers of the government effective. Maryland argued that this amounted to a restriction of the implied power to laws that are “absolutely necessary” for accomplishing the objects of the assigned powers. The Court rejected this restrictive interpretation, holding instead that the words “necessary” and “proper” must be read together to mean “appropriate” or “conducive to” the accomplishment of those objects. Read this way, the bank could be viewed as an appropriate extension of the fiscal, monetary, and other powers of the national government. Marshall also strongly suggested in his opinion that the Court’s decision was compelled by considerations of judicial self-restraint, since the choice of appropriate “means” to accomplish legitimate constitutional objectives should be left within the discretion of Congress, not that of the courts.

As to the state’s power to tax the bank, the Court ruled that such a tax would amount to taxation without representation, in effect allowing the citizens of Maryland to levy a tax upon citizens of the United States that were not represented in Maryland’s legislature. Again, the Court strongly suggested that considerations of judicial self-restraint were important, since allowing states to tax instruments of national government would inevitably require courts to draw the line between “allowable” and “destructive” taxation with great precision. Involving the courts in such inquiries about the degrees of permissible taxation by states would have placed them squarely in one of the most dangerous political thickets of the time.

Despite Marshall’s plea of judicial restraint, the political thicket was not avoided. On the contrary, McCulloch proved to be one of the most controversial decisions in Supreme Court history. The Court’s opinion inspired a set of published critiques by two prominent Virginia judges, William Brockenbrough (“Amphyction”) and Spencer Roane (“Hampden”). These critiques began to appear within weeks of the decision, and were so vigorous that Marshall himself felt compelled, pseudonymously, to reply to the Court’s critics in print. The critics were apparently less offended by the decision itself (Roane himself had bought shares of the bank’s stock) than by the reasoning that Marshall had employed in its’ defense. According to one commentator, the critics “required an obsequious, silent opinion without reason” (Baker, p. 606). Chief among their concerns was Marshall’s insistence that adoption of the Constitution was an act of the whole people of the United States, not an act of the states as such (as the Articles of Confederation had been). This primary concern reveals the “states’ rights” perspective of the critics, and harks back to the original opposition of Roane particularly to adoption of the Constitution in the first place.

The attacks on the Court continued throughout 1819 and 1820, and would undoubtedly have been a major campaign issue in the election of 1820, had there been a real campaign. Additionally, the fact that the bank was highly unpopular in some sections of the country and had been blamed by many for causing the Panic of 1819, would have greatly intensified the issue. However, fortunately for the Court–and perhaps for the country at the time, the Federalist party had breathed its‘ last and was unable to nominate a candidate to challenge incumbent James Monroe, so the 1820 election turned out to be the last in which a presidential candidate would run unopposed (Washington being the only other).

On the horizon, the issue of the bank, and of the Court’s interpretation of the Constitution in McCulloch, would linger for years. The congressional rechartering of the bank would be vetoed once-and-for-all by Andrew Jackson in the 1830s, and the issue of federalism versus confederalism would require the Civil War for its’ settlement. Even beyond the 1860s, the McCulloch opinion would serve as the foundation of innumerable controversies over the balance of power between the national government and the states. And this issue would find expression in many subsequent presidential campaigns.

Robert Lowry Clinton holds B.A. and M.A. degrees from Texas Tech University and a Ph.D. in Government from the University of Texas at Austin. He is the author of Marbury v. Madison and Judicial Review and God and Man in the Law: The Foundations of Anglo-American Constitutionalism (both published by the University Press of Kansas), as well as numerous journal articles and book chapters. He is a Fellow of the Center of Science and Culture at the Discovery Institute in Seattle, Washington, and was a Fellow of the James Madison Program in American Ideals and Institutions at Princeton University in 2007-08. Dr. Clinton’s main fields of study are in Supreme Court history, constitutional jurisprudence, social and political philosophy, and political theology.


Leonard Baker, John Marshall: A Life in Law. New York: Macmillan, 1974.

Robert Lowry Clinton, “McCulloch v. Maryland.” Oxford Companion to American Law (ed. Kermit Hall). Oxford University Press, 2004.

Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law. Lawrence: University Press of Kansas, 1996.

2 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The problem with the national bank debate was that, albeit in secret, the Philadelphia Convention of 1787, according to Madison’s Notes release after his death in 1837, voiced the view on Sept 14 that several states were against establishing a national bank. Yet, by sophistry the federal government goes about justifying activities that were explicitly denied in the formulation of just what powers the new federal government will have. Anything otherwise meant that the constitution likely would not have been ratified. What was talk early on as being necessary for an amendment for the federal government to do gives way for the federal government to do it anyway.

    And just what is “necessary and proper” on the Marshal court concerning the “fiscal, monetary, and other powers of the national government?” “Fiscal” means to borrow money. “Monetary” means to coin money and collect taxes. And “other powers” means to spend money (on legitimate objects of the federal government) and to approve of state compacts. In borrowing money, the federal government can issue bonds where citizens then become investors as creditors. But the federal government is not authorized to hold other people’s money as a depositor. A depositor is not a creditor in a fiscal sense. It makes sense that the federal government will of necessity erect needful building to act as a treasury, mint, and disbursement office that may appear to operate much like a bank but such is only acting as a national cash register; but not in anyway to hold other people’s money in that cash register.

    As for the taxing issue of out of state commerce per McCulloch v. Maryland, the court is right in that the union of the states is expressly a trade federation where there are no tariffs or quotas between states. An exclusive tax of an out of state commerce is effectively a form of a tariff. It would be different if a state levied a tax on an activity regardless of intrastate or interstate.

  2. Publius Senex Dassualt
    Publius Senex Dassualt says:

    Great essay and comments by RTH.

    The Virginia ratifying convention and the Federalist and Anti-Federalist papers debated the extend of Federal powers. The bank, as RTH was a major concern of anti-Federalist during the ratification period.

    Some of the proposed amendments addressed the extant reach of the Federal government into banking and taxation. Madison chose to only include only those that enjoyed universal support. This was consistent with 1) Madison’s view that politics should enact the agreeable middle ground items and leave fringe, left, right items to be debated, revised, resolved at a later time, and 2) as with the Constitution, getting a Bill of Rights passed was paramount and controversial amendments threatened that. As RTH notes, some of the states opposed a national bank, others supported it – hence Madison left those amendments out of the BoRs.

    Fast forward to today where the Federal Reserve is totally independent except for the appointment of Bank Presidents. The Federal Reserve chair is required to appear before Congress but routinely ignores Congressional subpoenas for information, evades answers to even direct yes/no questions. What would the Founders think? Hamilton ecstatic? Henry livid for sure. Washington disappointed? The others??



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