A Constitution with Room to Work
Article by Ayman Fouad Abdelgawad
McCulloch v. Maryland
The case
Congress had created the Second Bank of the United States. Maryland imposed a tax that applied to its Baltimore branch, and the branch's cashier, James McCulloch, refused to pay. Two questions followed: did Congress have constitutional authority to establish the bank, and could Maryland tax the federal instrument?
What the Court decided
Chief Justice Marshall upheld Congress's authority. The Constitution did not expressly enumerate a power to create a bank, but Congress could select appropriate means to carry out its enumerated responsibilities. The Necessary and Proper Clause did not confine it to measures that were absolutely indispensable.
That reasoning had boundaries. The end had to fall within the Constitution, and the means had to be appropriate, consistent with its letter and spirit, and not prohibited. The Court also held Maryland's tax on the bank unconstitutional: a state could not use taxation to obstruct a valid operation of the national government. This was not a declaration that every tax touching a federal connection was forbidden.
Why it is worth thinking about
A constitution has to endure circumstances its authors cannot describe in advance. If every permissible instrument had to be named in the original document, public authority could become unable to perform the duties the document assigns.
The opposite danger is equally evident. A government might call almost any expansion of power a useful means to a desirable end. The difficulty lies in explaining the connection rather than merely asserting usefulness.
McCulloch invites us to distinguish flexibility from absence of limits. It also illustrates why the division of authority matters as much as its quantity. Maryland's tax was a local decision with consequences for a national institution. Constitutional structure asks who is entitled to make such a decision, and whose interests that decision-maker represents.
Read the decision
McCulloch v. Maryland — archived U.S. Reports scan (PDF)
17 U.S. (4 Wheat.) 316 (1819). Reading reference: pp. 400–437 in the printed report. Archive: Library of Congress, United States Reports collection.