McCulloch v. Maryland Opened a Door, and Marshall Swore It Had Walls

Every great government expansion begins with a polite request: could we please have a little flexibility? Nobody asks for a leviathan. They ask for a bank, or a post road, or a modest clause that allows Congress to do whatever is necessary and proper. The leviathan comes later, in installments, with a precedent attached to each.

The most important installment was delivered on March 6, 1819, by Chief Justice John Marshall in McCulloch v. Maryland. Conservatives have a complicated relationship with that opinion, and the complication is worth understanding. The decision gave Congress a broad reading of its implied powers. It also, in plain words that later courts have often ignored, set out limits on that reading. The story of the case is the story of a door that opened and a set of walls that were quietly demolished afterwards.

The fight before the case

The argument in McCulloch is older than the Court's decision, and it began in George Washington's cabinet in 1791. Treasury Secretary Alexander Hamilton proposed a national bank, a corporation chartered by Congress to hold federal deposits, issue notes and help manage the nation's finances after the Revolutionary War's debts. Congress passed the bill. Washington asked his cabinet whether he should sign it.

Thomas Jefferson, then Secretary of State, said no. The Constitution gave Congress a list of enumerated powers, and incorporating a bank was not on it. Congress had power to tax, borrow and regulate commerce, but nothing in the text authorized chartering a corporation. Jefferson read the Necessary and Proper Clause narrowly: a bank, however convenient, was not necessary to any enumerated power. James Madison, then a member of the House, agreed and spoke against the bill. Hamilton answered that a government with sovereign powers must have the means to execute them. Washington signed the bill.

The First Bank's charter ran for twenty years and expired in 1811. Congress did not renew it. After the War of 1812 the government struggled with a disordered currency, and in 1816, with Madison himself now President, Congress chartered the Second Bank of the United States, and Madison signed it. The man who had opposed the First Bank on constitutional grounds accepted the Second. That fact is worth remembering the next time someone says the Founders agreed on what the Constitution allowed.

Maryland's tax

The Second Bank had branches in many states, and some of those states resented them. In 1818 Maryland passed a law taxing the notes of banks not chartered by the state, in practice the Baltimore branch of the Bank of the United States. The branch's cashier, James McCulloch, issued notes without paying, and an informer, John James, sued him to collect the penalty. Maryland's courts ruled for the informer, and the case went to the Supreme Court.

Some of the greatest advocates of their time argued it. Daniel Webster, William Pinkney and Attorney General William Wirt appeared for the bank, and Luther Martin was among those who spoke for Maryland. The Court heard the case in February 1819 and decided it in March, a speed that today's litigants would find astonishing. The opinion was unanimous, and Marshall wrote it.

The two holdings

The case posed two questions, and Marshall answered both.

Question one: does Congress have the power to charter a bank? Marshall said yes. The text of the Constitution does not mention banks, but it does not need to. Article I, Section 8, Clause 18 gives Congress the power "To make 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 or Officer thereof." Marshall read "necessary" broadly, as not limited to what is absolutely indispensable. He pointed out that the Constitution says "necessary and proper," not "absolutely necessary," and that elsewhere the document used the stronger phrase when it meant it, in Article I, Section 10. Congress's enumerated powers to tax, borrow, regulate commerce and wage war were large ones, and the power to charter a bank was a means of carrying them out.

Question two: can a state tax a federal instrument? Marshall said no. If the states could tax the Bank, they could tax it out of existence, and with it any other federal operation. The federal government, acting within its sphere, was supreme under the Supremacy Clause in Article VI, and a state could not use its taxing power to obstruct it. Hence his most famous sentence on the point: "the power to tax involves the power to destroy."

Both holdings were of enormous consequence. The first told Congress it had room to choose its means. The second told the states that the room was federal.

The line everyone quotes, and the line almost nobody does

Here is the passage that has become the standard citation for broad federal power: "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."

Read the passage closely, because a great deal turns on its internal structure. It has conditions. The end must be legitimate. It must be within the scope of the constitution. The means must be appropriate, plainly adapted to the end, not prohibited, and consistent with the letter and spirit of the Constitution. That is a five-part test. Most people stop reading after "all means which are appropriate."

Marshall also said, in a passage that fans of limited government should have laminated: "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."

That sentence is a warning against precisely the move that later became routine: reaching a goal Congress has no power to pursue by pretending that the law is a means to some enumerated end. Marshall wrote it into the opinion, plainly, as a boundary. He was not describing a limitless power. He was describing a power with a fence around it, and he said the Court would police the fence.

Add one more line, from the same opinion: "we must never forget, that it is a constitution we are expounding." Defenders of the living Constitution quote that line as a license for flexibility. Read it with the rest. Marshall's point was that a constitution states great outlines and leaves details to be deduced, which is why the Necessary and Proper Clause exists. It was no invitation to rewrite the outlines.

The steelman: the Jeffersonian objection

Fairness demands a hearing for the other side, and the other side in 1819 was a serious one. Jefferson's and Madison's objection to the Bank was never that Congress lacked all implied powers. It was that if "necessary" means merely "convenient," then there is no limit. Almost anything is convenient to some enumerated power. The government could ban or require anything, as long as it could tell a story about commerce, or taxation, or war. A constitution of enumerated powers would collapse into a constitution of general legislative powers, and the Tenth Amendment's reservation of powers "to the States respectively, or to the people" would be a decoration.

Spencer Roane, a Virginia judge, made the argument in public after McCulloch, and Marshall felt strongly enough about it to respond under a pseudonym in a series of newspaper essays defending his own opinion. That detail is worth noting for its candor: the Chief Justice thought the criticism required an answer.

The objection is not foolish. History has vindicated much of it. A reading of "necessary" that stretches to "convenient" gives Congress a flexible tool, and whether that tool stays inside its fence depends on whether anyone enforces the fence.

Marshall's answer, and its weak point

Marshall's response was the five-part test above. The ends must be legitimate and within the Constitution's scope, so Congress cannot simply declare an end that is not among its powers. The means must be plainly adapted to that end and not otherwise prohibited, so Congress cannot pick a means that has nothing to do with the end. And the means must be consistent with the letter and spirit of the Constitution, so Congress cannot violate other provisions in the process.

That answer works if courts actually apply the test. The weak point is obvious: it relies on judges to decide whether an end is "legitimate" and a means "plainly adapted." If judges treat any plausible link as sufficient, the test becomes a rubber stamp. And that is, to a large extent, what happened.

How later courts kept the breadth and dropped the limits

The story from 1819 to the present is the gradual conversion of Marshall's fence into a doorway.

1. The McCulloch reading of "necessary" became the standard. The idea that Congress may choose any appropriate means to execute its powers became settled doctrine, and few conservatives today argue for the Jeffersonian reading.
2. The ends test eroded. In the twentieth century the Court read the Commerce Clause broadly and only rarely held that a federal law exceeded Congress's enumerated powers. In Wickard v. Filburn (1942), the Court upheld the application of federal wheat quotas to wheat a farmer grew partly for his own use, on the reasoning that such wheat in aggregate affected the interstate market. In that line of cases, the question "is this end within the scope of the constitution?" shrank to "could Congress rationally think it related to commerce?"
3. The "plainly adapted" test became deferential. Courts asked only whether the means was rationally related to a legitimate end, with the burden on the challenger. Marshall's phrase "plainly adapted" suggests a meaningful judicial inquiry. Rational-basis review made it a formality.
4. The "pretext" warning went unenforced. The "painful duty" that Marshall promised, to strike down laws that use enumerated powers as a pretext for unenumerated ends, was rarely performed.

There have been moments of revival. In United States v. Lopez (1995), the Court held that Congress exceeded its commerce power by banning guns near schools, a rare limit on that power; see United States v. Lopez Was the First Commerce Clause Limit Since the New Deal. In NFIB v. Sebelius (2012), Chief Justice Roberts and the joint dissenters concluded that the individual mandate could not be justified under the Commerce Clause or as "proper" under the Necessary and Proper Clause, because it was not an exercise of an existing power but an attempt to create a new one by compelling commerce. Roberts upheld the mandate as a tax, and for the continuing conservative argument over that move, see John Roberts Called the Mandate a Tax, and Conservatives Still Argue About Why. Those cases show the fence can be rebuilt. They do not change the fact that for most of two centuries it stood unattended.

What it means for the size of government

There is a direct line from this doctrine to the modern administrative state, and conservatives should draw it carefully rather than angrily. The Necessary and Proper Clause gave Congress the room to create agencies, to fund programs and to regulate in areas the Founders never contemplated. The room was not, in itself, a mistake. A national government that could not choose its means could not function. The mistake came when the limits Marshall wrote into the opinion, legitimate ends and plainly adapted means, ceased to be enforced, and the room became limitless.

The practical result is a government that can grow in two ways at once: by claiming new ends through an elastic reading of enumerated powers, and by choosing means with no meaningful review. For how this shows up in the daily work of Washington, see The Major Questions Doctrine Explained, From Tobacco to the Power Plants, which covers one of the modern efforts to restore a boundary, and the site's page on red tape in the Federal Register.

I would put the lesson this way. Marshall did not hand Congress a blank check. He handed it a checkbook with a list of rules on the cover, and succeeding generations tore off the cover. The task for anyone who wants limited government is not to repudiate McCulloch, which would require the Jeffersonian reading and which the country rejected two centuries ago. It is to enforce McCulloch, all of it, including the sentence about pretext.

A fair word for the broad reading

A rebuttal belongs here too, since a fair argument states what is right in the other side's position. The broad reading of "necessary" is not a modern invention. The text says "necessary and proper," not "absolutely necessary," and the Constitution's own use of the phrase "absolutely necessary" in Article I, Section 10 suggests the drafters knew the difference. A government of enumerated powers still has to be able to function, and the Founders wanted it to.

The disagreement is therefore not over whether Congress has implied powers, but over how tightly the legitimate-ends test and the plainly-adapted test are to be applied. On that question, Marshall himself is on the side of the fence.

The case in brief

1. McCulloch v. Maryland (1819) held unanimously that Congress may charter a national bank under the Necessary and Proper Clause and that Maryland may not tax it.
2. Marshall read "necessary" broadly, as meaning appropriate and useful, but set a five-part test: the end legitimate and within the Constitution's scope, the means appropriate, plainly adapted, not prohibited and consistent with the letter and spirit of the document.
3. He warned that laws passed "under the pretext of executing" enumerated powers to reach unenumerated ends are not the law of the land, which is the boundary later courts largely failed to enforce.
4. The twentieth-century Commerce Clause cases and rational-basis review turned the fence into a doorway, with revivals in Lopez and NFIB showing that it can be rebuilt.
5. The conservative task is to apply McCulloch faithfully and in full, including its limits, not to reject it.

What you can do: read Article I, Section 8, Clause 18 and then Marshall's pretext passage in the opinion, and the next time a bill is justified as "necessary and proper," ask your representative which enumerated power it carries out.