Reading Assignments for Third Topic: McCulloch v. Maryland and the Implied Powers
1. John Garraty, Quarrels that have Shaped the Constitution, chapter 3, “The Bank Cases.”
2. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 400-425 (Marshall's opinion), 4 L.Ed. 579 (1819). The Necessary and Proper Clause; implied powers.
3. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Excerpt. Constitutional Amendment’s enforcement clause.
4. City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Excerpt. Constitutional Amendment’s enforcement clause.
5. National Federation of Independent Business v. Sibelius, 567 U.S. ---, 132 S. Ct. 2566, 183 L. Ed. 2d 450 (2012). Excerpt. The “Obamacare” case. Extent of implied power.
1. In what ways do you think American life would be different today if the national government did not have implied constitutional powers?
2. Can you formulate a more moderate conception or test of implied powers that would still serve the needs of the national government for pragmatic flexibility but that would not grant it the power to do just about anything that does not violate a specific constitutional prohibition?
Related Cases and Recommended Reading
1. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L. Ed. 204 (1824). Ohio attacks the second national bank.
2. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 5 L. Ed. 242 (1821). Incidental powers: House of Representatives contempt power.
3. McGrain v. Daugherty, 273 U.S. 135, 150-54, 160-80, 47 S.Ct. 319, 71 L.Ed. 580 (1927). Excerpt. Incidental powers: Senate subpoena and contempt power.
4. In re Neagle, also styled Cunningham v. Neagle, 135 U.S. 1, 40-68, 80-84 (Lamar, dissenting), 10 S.Ct. 658, 34 L.Ed. 55 (1890). Incidental powers: presidential power to assign bodyguards to Supreme Court justices.
5. Jacobson v. Massachusetts, 197 U.S. 11, 12-18, 22-35, 37/38-39, 49 L.Ed. 643 (1905). The police power of states.
6. Young v. U.S. ex rel Vuitton et Fils, 481 U.S. 787, 789-802, 814-22, 825-28, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). Incidental powers: courts’ contempt power.
7. Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). Judicial immunity.
8. From Andrew C. McLaughlin’s A Constitutional History of the United States, paragraphs 8 to 17 of chapter 30:
CONSTITUTIONAL LAW UNDER CHIEF JUSTICE MARSHALL
. . . The currency and banking conditions of the country were responsible for two important decisions of the Supreme Court: McCulloch v. Maryland (1819)  and Osborn v. Bank of United States (1824). It is impossible to give briefly anything like an effective picture of the financial and commercial confusion in which the people were laboring, particularly after the disappearance of the old Bank which had been established in 1791 and the charter of which had not been renewed in 1811. So many kinds of notes were in circulation, so many banks were issuing notes without specie to support them, that one wonders how business could be conducted at all. In 1816 the second Bank of the United States was founded with a federal charter; but for a time it did not appear to furnish an adequate remedy for the prevailing trouble. Especially in the newer regions of the country, the rage against the national Bank and its branches was almost boundless; to weary and discontented folk it appeared to be only an instrument for carrying out the schemes of money sharks, for collecting debts from the helpless, and for drying up the sources of money. Several states proceeded to overcome the evil by levying taxes upon the branch banks — Maryland, North Carolina, Ohio, Tennessee, and Kentucky.
The Maryland tax law was tested in the federal Supreme Court. The opinion of Marshall in the case has been called his greatest opinion, partly because it laid down and supported by elaborate argument the broad powers of the national government. This appraisal may be questioned, for the principle as well as the practice of broad construction had been fully presented before; and at least one other case (Cohens v. Virginia), bearing on the nature of the union and the authority of the government, was of equal importance and the opinion of the Chief Justice in that case was at least equally able. But the Maryland opinion came at a peculiarly critical time; it ran counter to widely-extended, though by no means universal, public opinion; and its importance cannot well be overestimated.
The facts in the case are simple: Maryland had passed a law providing that if a branch bank should be established without authority from the state, its notes must be printed on stamped paper unless the bank relieved itself of the obligation by paying a specified tax. The branch bank in Baltimore refused to comply; McCulloch, the cashier, was sued for debt. The question was at length brought before the Supreme Court. In giving the decision Marshall thought it necessary to consider the Constitution "in its most interesting and vital parts...." He began with a discussion of the union and the origin of the Constitution. "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." In response to this assertion he referred to the method by which the Constitution was adopted, viz., by the people in conventions chosen for the purpose. "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."  "The government of the Union, then", he declared, "... 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."
Asserting that the government of the union, though limited in its powers, is supreme within its sphere of action, he proceeded to develop at length the/doctrine of implied powers. A government must have the authority to use the means for effectively exercising the powers bestowed upon it: "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." This is the classical definition of "implied powers", and is the doctrine of broad construction essentially like that pronounced by Hamilton nearly thirty years before. If a corporation, therefore, is a suitable means of carrying out delegated authority, Congress can establish a corporation; and it may establish a bank as a suitable means for performing the fiscal operations of the government.
But the more immediate question remained. Could Maryland tax the branch bank? The Court decided that the state had not the right: "The sovereignty of a state extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution — powers conferred on that body by the people of the United States? We think it demonstrable that it does not." The basis of this assertion was, in part, that "the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create...." The act of Maryland was therefore unconstitutional.
The decision in the Maryland case announced the law; but amid the excitement and discontent of those days it was not looked upon as the final and authoritative word. The nature of the union, the position of the states, and the authority of the Supreme Court were still matters of dispute. The enemies of the Bank raged and imagined many vain things. That is what makes the decision and Marshall's opinion so important in constitutional history in the broadest sense. It came at a time when the tide of feeling ran high and when theories of national rights and character, very different from the theories of Marshall, were current among the disaffected. On March 29, 1819, the Pennsylvania legislature asked for an amendment to the Constitution prohibiting Congress from establishing any bank except within the District of Columbia. This resolution was disapproved by at least nine states, but was approved by the legislatures of Tennessee, Ohio, Indiana, and Illinois. South Carolina apprehended "no danger from the exercise of the powers which the people of the United States have confided to Congress," while New York declared that "the dignity, the welfare, the prosperity and the permanency of that government (which is our pride and our admiration) forbid the adoption of the proposed amendment...."
Kentucky was much excited over a decision by the Supreme Court in the case of Green v. Biddle, a decision which held inviolable a contract entered into between Kentucky and Virginia when the former state was organized. The Court declared a Kentucky statute void on the ground that it impaired the obligations of that contract. The legislature of the state was filled with wrath. "Any judicial act," said Governor Adair in a message to the legislature, "that tends to alienate the minds, and consequently the affections, of large portions of the citizens ... must in the same degree weaken the power and render less secure the stability of the government. I need not be told that the general government is authorized to use physical force to put down insurrection and enforce the execution of its laws. I know it; but I know, too, with equal certainty that the day when the government shall be compelled to resort to the bayonet, to compel a State to submit to its law, will not long precede an event of all others most to be deprecated." 
Ohio, not overawed by the decision in the Maryland case, went on her way. A few weeks before that decision was rendered, the legislature had passed an act (February 8, 1819) to levy a tax of $50,000 on any bank doing business within the state without being allowed to do so by law. When the agents of the state proceeded to seize the money in the vault of the branch bank at Chillicothe, the bank sought the protection of the federal court in Ohio. The court at length ordered the return of the money and the order was ignored. Resolutions, preceded by a committee report breathing defiance, were adopted by the legislature and forwarded to the President and both houses of Congress (1821). They were able if not convincing. They approved the doctrines of the Virginia and Kentucky resolutions; they asserted the right of the state to tax the property of any private corporation created by Congress and doing business within the state; and they protested vigorously against the doctrine that the "political rights" of the separate states that compose the American union and their powers as sovereign states could be finally settled and determined by the Supreme Court in cases contrived between individuals. Shortly after this an act was passed "to withdraw from the Bank of the United States the protection of the laws of this State in Certain Cases." The bank was to be practically an outlaw in Ohio.
The validity of the decree of the lower court directed to Osborn, the auditor of Ohio, and others, was not brought up and decided in the Supreme Court until 1824. The case gave Marshall one more chance to lay down the principles of the Constitution and to defend the federal judiciary. This he did with his usual consummate skill. The most difficult question to be decided, technically speaking, and one of vast importance, was whether the suit was an action against the state and therefore not within the jurisdiction of the federal judiciary because of the eleventh amendment, or, on the contrary, whether the agents employed by the state were personally responsible. In discussing this problem, Marshall characteristically began by disclosing the inevitable results of adopting the theories of those against whom he was prepared to rule: the denial of jurisdiction of the Court is, in effect, to maintain "that the agents of a state, alleging the authority of a law void in itself, because repugnant to the constitution, may arrest the execution of any law in the United States. The carrier of the mail, the collector of the revenue, the marshal of a district, the recruiting officer, may all be inhibited, under ruinous penalties, from the performance of their respective duties.... Each member of the Union is capable, at its will, of attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armor, and incapable of shielding its agent or executing its laws, otherwise than by proceedings which are to take place after the mischief is perpetrated, and which must often be ineffectual, from the inability of the agents to make compensation." "... if the courts of the United States cannot rightfully protect the agents who execute every law authorized by the constitution, from the direct action of state agents in the collection of penalties, they cannot rightfully protect those who execute any law."  The suit, the Court declared, was not a suit against a state, because the state was not the actual party on the record; that is to say, though the state might have an interest in the matter, actually on the face of the proceeding, the suit was against Osborn and not against the state. The Court therefore held that the money seized by Osborn should be returned to the bank. The remainder of the decision was chiefly a reannouncement of the principles of McCulloch v. Maryland.
The significance of this case is apparent. It announced with clearness and definiteness the authority of the United States at a time when doctrines were abroad which menaced the efficiency of the union or threatened to undermine it altogether. It upheld a principle of supreme importance, a principle which may be said to underlie and support all constitutional law in a free state, viz., that an agent cannot take refuge behind the directions of a superior, if that superior is acting without legal right. If a state government is acting unconstitutionally in passing an act and in directing its execution, the officials engaged in the attempt to carry the law into effect are personally responsible for the injury inflicted. That is the way in which constitutional order and personal liberty are protected; governments or legislatures cannot be sued for torts; but their agents can be. An administrative officer cannot be entitled to do an unconstitutional act because some higher governmental authority directs him to do so. The principle is at the very basis of English and American free government. In private law, as distinguished from constitutional law, the principle holds that every man is responsible for the wrongs he inflicts; he cannot set up immunity by asserting that he acted only as an agent of some other person; this superior person may be himself liable for damages; but the agent who actually inflicts the wrong cannot shift the responsibility. In fact, once adopt the principle that an unconstitutional law is no law, it follows that the agent attempting to carry out a law of that kind is without any authority; he is therefore individually liable, and by the ordinary principles of the common law he is responsible for wrongs inflicted. Without this principle it is difficult to see how our constitutional system could be worked at all. At a later time the Supreme Court modified that portion of Marshall's decision which declared the question whether a suit came within the purview of the eleventh amendment and was therefore not within the jurisdiction of the federal Court depended only on whether or not the state was on the record a party.
 9 Wheaton 738.
 Such a statement as this could not satisfy the proponents of state sovereignty when that doctrine found full expression. John Taylor was beginning to make clear that the state government was not the state, and that the conventions in adopting the Constitution were decidedly the agents of the states acting in their sovereign capacity; if the people, though meeting within the geographical limits of their respective states, were not acting as part of the people of the United States as a whole — as a single political entity — , then the Constitution emanated from thirteen separate sovereignties. Elsewhere in the opinion Marshall says: "Much more might the legitimacy of the general government be doubted, had it been created by the states." 4 Wheaton 316, 404. His opponents would naturally retort, "But that is just the way it was established — by the states in their highest sovereign capacity." The Chief Justice announced the orthodox doctrine of divided sovereignty: "The creation of a corporation, it is said, appertains to sovereignty.... But to what portion of sovereignty does it appertain? ... In America, the powers of sovereignty 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...." Ibid., 410.
 Ibid., 429, 437. See also Dobbins v. Commissioners, 16 Peters 435 (1842), holding that the salaries of federal office-holders could not be taxed by a state. It was later held that a like constitutional principle prevented the federal government from taxing agencies of state governments. Collector v. Day, 11 Wallace 113 (1871). Thus salaries of state officers are not taxable by the United States. The dissenting opinion of Justice Bradley is of interest: "I cannot", he said, "but regard it as founded on a fallacy, and that it will lead to mischievous consequences." Ibid., 129.
 Ames, State Documents, no. 3, pp. 1-3.
 8 Wheaton 1 (1823). Justices Story and Washington delivered the opinion of the Court.
 Ames, State Documents, no. 3, p. 18. The Kentucky legislature passed resolutions (December 29, 1823) against the "erroneous, injurious and degrading doctrines of the opinion of the Supreme Court of the United States" and resolved that it ought to request Congress so to organize the Court that no constitutional question involving the validity of a state law should be decided unless two-thirds of the members of the Court should concur in the decision. Ibid., pp. 19-20. Notice the refusal of the Kentucky court to be bound by an opinion of the Supreme Court of the United States when the opinion was not concurred in by a majority of the Court. Bodley v. Gaither, 3 T. B. Monroe's Reports 57, 58-59 (1825). See also the discussion in Hawkins v. Barney's Lessee, 5 Peters 457 (1831), and the request of the Kentucky house for advice in resistance to "the decisions and mandates" of the United States Supreme Court (1825). Ames, State Documents, no. 3, p. 23. Before this date, Senator Johnson of Kentucky, later Vice-President of the United States, had proposed (1821) in the Senate an amendment to the Constitution which would make the Senate the final court of appeal in all cases to which a state was a party or should desire to be a party in consequence of having its constitution or law questioned. He declared that the federal Constitution did not give the federal judiciary authority to declare a state act void. H. V. Ames, The Proposed Amendments to the Constitution of the United States, Am. Hist. Asso. Report for 1896, II, pp. 161-163. Ames also calls our attention to a proposal by Senator Davis of Kentucky, in 1867, which would provide for a tribunal composed of one member from each state to decide all questions of constitutional power that should arise in the government of the United States and all conflicts of jurisdiction between the federal government and the states. He made a similar proposal in 1871. Ibid., p. 163.
 Ames, State Documents, no. 3, p. 5 ff. The reader should notice especially the resentment during these years against the Supreme Court. The feeling was strong, vehement. What right had the Court to thrust in its hand and decide upon state competence?
 Massachusetts, in resolutions, emphatically combated Ohio's position. Ibid., no. 3, pp. 13-15. Virginia was at the same time much wrought up over the power of the Court. See Ibid., no. 3, pp. 15-16.
 Osborn v. Bank of United States, 9 Wheaton 738.
 Ibid., 847-849.
 "Consequently, the nth amendment, which restrains the jurisdiction granted by the constitution over suits against states, is, of necessity, limited to those suits in which a state is a party on the record." Ibid., 857.
 "If, therefore, an individual, acting under the assumed authority of a State, as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the consequences of his individual conduct." In re Ayers, 123 U. S. 443, 507 (1887). See also United States v. Lee, 106 U. S. 196 (1882); Poindexter v. Greenhow, 114 U. S. 270, 200-291 (1885). I have omitted from the text above any consideration of the extent to which an officer executing a writ of a court may be exempt from personal liability.
 "It is, therefore, not conclusive of the principal question in this case, that the State of Virginia is not named as a party defendant. Whether it is the actual party ... must be determined by a consideration of the nature of the case as presented on the whole record." In re Ayers, 123 U. S. 443 (1887). See also Cunningham v. Macon and Brunswick R.R. Co., 109 U. S. 446 (1883); Hagood v. Southern, 117 U. S. 52 (1886); State of North Carolina v. Temple, 134 U. S. 22 (1890).
© William S Miller