Context and Content: The Enduring Importance of M'Culloch v. Maryland

July/August 2007 Historically Speaking 31 Context and Content The Enduring Importance of M'Culloch v. Maryland Mark R. Killenbeck The general consensus is that M'Culloch v. Maryland (1819) is one of the Supreme Court's great decisions. Indeed, one study concluded that it is the Court's most influential opinion , based on a value index calculated for each major decision. I concur—hardly surprising since I wrote the first book-length scholarly study of the decision .' But I also agree with Michael Klarman, who argues persuasively that "with regard to the concrete issue involved . . .—the constitutionality of the national bank—the decision was completely unexceptionable."If our frame of reference is made up of important changes in the law and in our understanding of the Constitution, M'Culloch didn't actually do very much. Moreover, the decision itself was largely ignored for the next fifty years. Only the death of President William Henry Harrison, one scant month after he took office, saved it from certain repudiation by Chief Justice John Marshall's successor, Roger Brooke Taney. And the institution at issue in the case, the Second Bank of the United States, was itself destroyed by President AndrewJackson, whose war on the Bank came to a successful conclusion when its charter expired in March of 1836. The facts are well known. In February of 1818 the Maryland legislature passed a measure imposing "a Tax on all Banks or Branches thereof in the State of Maryland not chartered by the Legislature ." The act did not mention any particular institution , but everyone knew exacdy what was intended: curb the influence and operations of the Baltimore branch of the Second Bank of the United States, if not banish it from the state. Once it became effective, James William M'Culloh, cashier of the Baltimore branch, issued five notes on untaxed paper. It was a deliberate act, designed to test the legality of the Maryland statute. And it was almost certainly undertaken with the approval and cooperation of John James, state treasurer for the Western Shore of Maryland, who brought an action of debt against the bank to recover the penalties owed. The opposing sides agreed on a statement of facts and a county court in Baltimore quickly held that the bank owed the tax. That judgment was affirmed by the Maryland Court of Appeals and the Supreme Court issued a writ of error, setting the case for consideration in its February 1819 term. Nine days of oral argument in what was now styled as M'Culloch v. Maryland'began on February 22, 1819. Twelve days later, on Saturday March 6, Chief Justice John Marshall delivered the opinion for a unanimous Court. "In the case now to be determined," he began, "the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that States." But Maryland was wrong. Congress had John Marshall. Library of Congress, Prints and Photographs Division [reproduction number, LC-USZ62-8499]. the authority to create the bank. The fact that such a power was not expressly mentioned in the text did not matter. A constitution, Marshall observed, could not possibly "contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution," lest it "partake of the prolixity of a legal code" that "could scarcely be embraced by the human mind." The powers of the national government were accordingly both express and implied, and the test a simple one: "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." Maryland, in turn, could not interfere with the bank's activities by exercising its authority to tax. That power was "one of vital importance," clearly "retained by the States" in the wake of ratification. But "the constitution and the laws made in pursuance thereof are...