Con Law IEnumerated Powers and McCulloch

McCulloch v. Maryland

In McCulloch v. Maryland (1819) the Court unanimously upheld the Second Bank of the United States as a means "plainly adapted" to Congress's enumerated ends and held that Maryland could not tax it, since "the power to tax involves the power to destroy."

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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

Marshall used several modalities. Text: where the framers wanted strict necessity they said "absolutely necessary" (Article I, Section 10, on state import duties); in the Necessary and Proper Clause they did not. The clause is also placed among Congress's powers, not its limits. Structure: a constitution must mark only "great outlines," and "we must never forget that it is a Constitution we are expounding." History: the First Congress had chartered a bank after full debate. Supremacy: a part cannot control the whole, and Maryland's voters elect no one in Congress, so their tax would burden the people of every other state.
Tap each phrase: the end, the fit, and the limits.

Key idea

McCulloch v. Maryland (1819), unanimous: Congress may charter a national bank as a means "plainly adapted" to its enumerated ends under the Necessary and Proper Clause; a state may not tax the bank, because "the power to tax involves the power to destroy."

Worked example: Applying the McCulloch test

Congress, using its power to establish post offices and post roads, makes it a federal crime to steal mail. Nothing in Article I mentions crimes about mail. Is the law valid?
  1. End: running a postal system is an enumerated power (Article I, Section 8, Clause 7). Legitimate.
  2. Means: protecting mail from theft is plainly adapted to running the post.
  3. Not prohibited: no other clause forbids it.

Answer: Yes. This is the kind of implied means McCulloch approves.

Worked example: Where McCulloch stops

A senator says, "Under McCulloch, Congress may pass any law that is useful to the country." What is wrong with that?
  1. McCulloch's first condition is that the END be legitimate, within the scope of the Constitution.
  2. 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."
  3. 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

Thinking McCulloch says Congress can do whatever is useful. The clause gives broad choice of means to carry out enumerated ends. Check: name the enumerated power first, then ask whether the law is a reasonable means to it.

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.

This is an educational course, not legal advice.

Practice

Pass with 3 right answers, the last 2 in a row. Each right answer earns 3 XP.

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Sources and further reading

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