• Video

McCulloch v. Maryland: The Debate About Enumerated Federal Powers

What does it mean for Congress to have all “necessary and proper” powers? Did the Founders agree on what this meant? Professor Kurt Lash illustrates how this issue was manifested in McCulloch v. Maryland. Despite a decision during the Constitutional Convention to not charter a national bank, the first Congress did establish such an institution. The fight over a national bank ended up at the Supreme Court, where Chief Justice John Marshall wrote the opinion that confirmed Congress had this power under the “necessary and proper” clause. How much power “necessary and proper” grants to Congress is still a matter of debate today. https://youtube.com/watch?v=PXG-NmpSBz0


McCulloch is a Federalism case. The case itself involved the Bank of the United States. This was the second bank; the first bank having been assigned into law and allowed to lapse over time. The Second Bank of the United States is created and it becomes, under challenged, as perhaps exceeding the enumerated powers of the Federal government. When the court decided this issue, it was deciding an issue that had been debated all the way back to the original Philadelphia convention. In the convention, they debated whether or not to grant the national government power to charter corporations like a national bank. That discussion ended with the framers deciding not to give Congress that power. Nevertheless, after the original Constitution was ratified, the first Congress decided to charter a national bank and it was met with resistance by men like James Madison, who argued that in fact, no, the Federal government was not to have power to charter these independent organizations that could become the national bank. Madison, in his speech against the original Bank of the United States, insisted that amendments like the 9th Amendment and the 10th Amendment, guaranteed that there would be a narrow, or appropriate construction of Federal power. One that would continue to preserve the independent rights of the people in the states to decide whether or not to charter a state bank. And he also pointed to the 10th Amendment as guaranteeing that these rights would be reserved to the people in the states. He lost the argument. The First Bank of the United States was signed into being anyway. The Second Bank of the United States was actually signed into operation by Madison himself. Madison this time conceding that the political argument had gone against him. But he insisted that he had never changed his views of the proper construction of the American Constitution. This being such a debated controversy, it's not surprising that it ended up in the hands of the Supreme Court in the case McCulloch against Maryland. In that case, Chief Justice John Marshall gave a very broad interpretation of necessary and proper powers, to the point that it would allow Congress to do anything that was convenient. Anything that seemed to be in the goodwill of Congress to try and advance one of its enumerated powers. McCulloch against Maryland, in its construction of enumerated power, calls into question the very theory through its very broad interpretation of necessary and proper powers. Necessary and proper involve the implied powers of Congress. Yes, you have the power to raise and support armies, but in doing so, does that imply, for example, the power to create a flag that those armies would follow? Or to create uniforms or uniforms of a particular color? Well, of course it does. Those additional matters, of course, are implied in the original grant of enumerated responsibilities. But implied powers can be kind of a game by which you continually construct your powers and extend them and extend them, to the point that you actually eradicate the idea of limited constraining power in the first place. For example, you could say that Congress has power to regulate interstate commerce. That could imply that Congress has power to ensure that commerce is properly conducted. That could imply that Congress has power to make sure that people are educated in the proper means and operations of commerce. That could imply that Congress has power to control the schools and the education of the young. On and on it can go. Does McCulloch against Maryland go that far? Does the decision of John Marshall imply that we no longer have a theory of narrow, specifically enumerated powers? And that the necessary and proper clause does nothing to constrain the authority of the Federal government? It was a debated issue. Some people, in fact, during the antebellum period, argued that it did obliterate the idea of narrowly enumerated Federal power. Others took a more narrow interpretation of McCulloch against Maryland and they read it through the lens of the Federalist papers. They actually reconciled McCulloch against Maryland's reading of the necessary and proper clause with the Madisonian theory of Federalism. And maintaining the line between the national government and the states. There are ways that McCulloch against Maryland can be read in a narrow way, preserving the theory of narrowly enumerated Federal power. But it's also possible to read it through a Nationalist lens. And that's a debate we're still having.

Related Content