Nothing in Article I mentions a bank or a corporation. Yet Congress chartered the First Bank of the United States in 1791, after a famous debate in which Hamilton argued it was constitutional and Jefferson and Madison argued it was not. Congress chartered the Second Bank in 1816. In 1818 Maryland taxed every bank in the state not chartered by Maryland, a tax aimed at the Baltimore branch of the national bank. Its cashier, James McCulloch, refused to pay. The case put the enumerated powers to their first great test.
Why it works
Key idea
Worked example: Applying the McCulloch test
- End: running a postal system is an enumerated power (Article I, Section 8, Clause 7). Legitimate.
- Means: protecting mail from theft is plainly adapted to running the post.
- Not prohibited: no other clause forbids it.
Answer: Yes. This is the kind of implied means McCulloch approves.
Worked example: Where McCulloch stops
- McCulloch's first condition is that the END be legitimate, within the scope of the Constitution.
- Marshall also warned that if Congress, "under the pretext of executing its powers," pursued objects "not intrusted to the Government," the Court would have to say the act "was not the law of the land."
- Usefulness to the country is not an enumerated end.
Answer: McCulloch is about means. The end must still come from a granted power.
Common mistake
Marshall's reading tracks Madison's argument in Federalist No. 44: "wherever the end is required, the means are authorized." Hamilton made a similar point about the "sweeping clause" in Federalist No. 33. Brutus had feared exactly this reading, arguing that "necessary and proper" would let Congress do almost anything. The debate continues in Necessary and Proper Today.