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McCulloch vs. Maryland [1819]


Marshall, C J. . . . The first question made in this cause , is has congress power to incorporate a bank?

It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by rnany successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation....

In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion.

It would be difficult to sustain this proposition. The convention which framed the constitution was, indeed, elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might "be submitted to a convention of Delegates chosen in each State, by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account cease to be the measures of the people themselves, or become the measures of the state governments.

From these Conventions the constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established" in the name of the people; and is declared to be ordained, "in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and lo their posterity." The assent of the States, in their sovereign capacity, is implied in calling a Convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties....

. . . The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly a government of the people. In form and in substance it emanates from them, its powers are granted by them, and are to be exercised directly on them, and for their benefit.

This government is acknowledged by all to be one of enumerated powers. The principle, that it exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments, which its enlightened friends, while it we; depending before the people, found it necessary to urge That principle is now univesally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. In discussing these questions, the conflicting powers of the State and general governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

If any one proposition could command the universal assent of mankind, we might expect| it would be this: that the government of the Union, though limited in its powers, is su- | preme within its sphere of action. This would seem to result necessarily from its nature . It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, "this constitution, and the laws of the United States, which shall be made in pursuance thereof," "shall be the supreme law of the land," and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it.

The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, "anything in the Constitution or laws of any State, to the contrary, notwithstanding.'

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the exsessive jealousies which had been excited, its the word "expressly," and declares fly that the powers "not delegated to the sited States, nor prohibited to the States, reserved to the States or to the people;" us leaving the question, whether the parular power which may become the subject contest, has been delegated to the one goverment or prohibited to the other, to pend on a fair construction of the whole strument. The men who drew and adopted is amendment had experienced the emmbarassments resulting from the insertion of is word in the articles of confederation, and probably omitted it to avoid those emrrassments. A constitution, to contain an curate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into cution, would partake of the prolixity of legal code, and could scarcely be embraced the human mind. It would probably never understood by the public. Its nature,therefore, requires that only its great outdesignated and the minor ingredents which should be marked, its important objects designated, to be deduced from the natureof the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but onl the language. Why else were some of the limitations, found in the 9th section of e first article, introduced? It is also, in pme degree, warranted by their having omitted to use any restrictive term which 6th prevent its receiving a fair and just erpretation. In considering this question, , we must never forget, that it is a conison we are expounding. Although, among the enumerated powers of goverment, we do not find the word "bank," "incorporation," we find the great powers to lay and collect taxes; to borrow money; to date commerce; to declare and conduct or; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are inted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merley because they are inferior . Such an idea can never be advanced . But it may, with great reason, be contended , that a government , intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulph of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrumcnt, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed.

It is not denied that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied that the government has its choice of means, or that it may employ the most convienient means, if to employ them it be necessary to correct a corporation. . . . . The government which has a right to do a act , and has imposed on it the duty of preforming that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.

The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of soverelgnty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. We cannot comprehend that train of reasoning which would maintain, that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some State constitutions were formed before, some since that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same, as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government the power contained in the constitution, and on the States the whole residuum of power, would it have been asserted that the government of the Union was not sovereign, with respect to those objects which were entrusted to it, in relation to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning which maintains, that a power appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the general government, so far as it is calculated to subserve the legitimate objects of that government. The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted in order to be| incorporated, but the corporate character is conferred to subserve the purposes of education. No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived why it may not pass as incidental to those powers which are expressly given, if it be a direct mode executing them.

But the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making "all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof."

The counsel for the State of Maryland have urged various arguments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means of executing the enumerated powers....

But the argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the government, but such only as may be "necessary and proper" for carrying them into execution. The word "necessary" is considered as controlling the whole sentence, and as limiting , the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress, in each case, that only which is most direct and simple.

Is it true, that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary cannot exist without that other? We think it does not.
If refrences be had to its use, in the common affairs of the world, or in approved authors, fond that it frequently imports no more than that one thing is convenient, or useful,essential to another. To employ the means necessary to an end, is generally understood employing any means calculated to prove the end, and not as being confined to se single means, without which the end and be entirley unattainable. Such is the character of human language, that no word convays to the mind, in all situations one single definite idea; and nothing is more comman than to use words in a figurative sense. nost all compositions contain words which, taken in their rigorous sense, would convey a meaning different from that which obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in more mitigated sense~in that sense which common usage justifies. The word "necesry" is of this description. It has not a fixed charater peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of a urgency it imports. A thing may be necessary, very necessary, absolutely or indispensaly necessary. To no mind would the same idea e conveyed, by these several phrases.... His word, then, like others, is used in various Loses; and, in its construction, the subject, he context, the intention of the person using them, are all to be taken into view.

Let this be done in the case under concedaration. The subject is the execution of base great powers on which the welfare of a Nation essentially depends. It must have in the intention of those who gave these Powers, to insure as far as human prudence Old insure, their beneficial execution. This could not be done by confining the choice of Wins to such narrow limits as not to leave it in the power of Congress to adopt any Which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which governient should, in all future time, execute its liowers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code.

It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be negatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances....

This clause, as construed by the State of Maryland, would abridge and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended is, we should think had it not been already controverted, too apparent for controversy . .

The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble.

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional....

If a corporation may be employed indiscriminately with other means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of Congress, if it be an appropriate mode of executing the powers of government That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy....

But were its necessity less apparent, none can deny its being an appropriate measure and if it is, the degree of its necessity as has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power....

After the most deliberate consideration, it is the unanimous and decided opinion of this court, that the act to incorporate the Bank of the United States is a law made in pursusance of the constitution, and is a part of the supreme law of the land. . . .

It being the opinion of the Court, that act and that the power of establishing a branch in the State of Maryland might be properly exercised by the bank itself, we proceed to inquire.

Whether the State of Maryland may without violating the constitution, tax that ranch?

That the power of taxation is one of vital importance; that it is retained by the States; at it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exersed by the two governments: are truths which have never been denied. But, such is the paramount character of the constitution,that its capacity to withdraw any subie from the action of even this power, is admitted. The States are expressly forbidden lay any duties on imports or exports, excel what may be absolutely necessary for ex cuting their inspection laws. If the obligations of this prohibition must be concededóif may restrain a state from the exercise of i taxing power on imports and exports, the same paramount character would seem to restrain, as it certainly may restrain, a state from such other exercise of this power, as in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, a entirely repeals that other as if express tern of repeal were used.

On this ground the counsel for the ban place its claim to be exempted from the powe of a State to tax its operations. There is no express provision for the case, but the clain has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blende with its texture, as to be incapable of being separated from it, without rending it into shreds.

This great principle is, that the constitution and the laws maple in pursuance thereon are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. Frorn this which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend.

These are,
1. That a power to create implies a power to preserve.
2. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with, these powers to create and preserve.
3. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme. . .
The power of Congress to create, and of course to continue, the bank, was the subject of the preceding part of this opinion; and is no longer to be considered as questionable.

That the power of taxing it by the States may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it....

The argument on the part of the State of Maryland. is, not that the states may directls- resist a law of Congress, but that they may exercise their acknowledged powers upon it! and that the Constitution leaves them this right in the confidence that they will not abuse it....

. . . That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government.

But is this a case of confidence? Would the people of any one State trust those of another with a power in control the most insignifficant operations of their State government? We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations |of a government to which they have confidedtheir most important and most valuable interests? In the legislature of the Union alone are all represented. The legislature of
the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidencen that it will not be abused. This, then, is not a case of confidence, and we must consider it ;as it really is.

If we apply the principle for which theStates of Maryland contends, to the constitution generally. WE shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States.

If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the States....
The question is, in truth, a question of supremacy; and if the right of the States to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, is empty and unmeaning declamation....

It has also been insisted, that, as the power of taxation in the general and State govenments is acknowledged to be concurrent, every argument which would sustain the right of the general government to tax banks chartered by the States, will equally sustain the right of the States to tax banks chartered by the general government.

But the two cases are not on the same reason The people of all the States have created the general government, and have conferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constitutents; and these taxes must be uniform. But when a State taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the wholeóbetween the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme....

The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared. We arc unanimously of opinion, that the law passed by thc legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.... Judgment Reserved.