Thursday, January 7, 2010

McCullough vs. Maryland: Implied Power Clause Established – Constitutional?

In 1819, the United States Supreme Court heard a case that forever changed the landscape of legislative power and paved the road for a larger more centralized government. The case in question is McCullough vs. Maryland. The question before the court was twofold: First, does the "necessary and proper" clause of the Constitution imply that Congress had the power to charter a national bank? Secondly, is it within State power to place a tax on national banks or are national activities supreme to State rights? After arguments were made, Chief Justice John Marshall wrote the opinion that established the "necessary and proper" clause implied that Congress can establish a national bank as it carries out activities that maintained the powers specifically listed in the Constitution; thus the Implied Powers Clause was born. Marshall also stated "that allowing states to tax part of the national government disrupted the supremacy of the Constitution and of national laws over conflicting states laws" (

While the case originally surrounded the taxation of a national bank by the state of Maryland, the case laid the ground work for future Congressional actions that went beyond those powers specifically listed in the Constitution. Article 1, Section 8 states (

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

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.

Obviously the Founding Fathers did not have television, radio or the internet but one wonders if Marshall had not established the Implied Powers Clause through his interpretation of the final sentence of Section 8 would we have so many inequities within our lands. What I mean. Where does it state the establishment of entitlement programs? Did Marshall go too far in his decision? Or are there in face implied powers established in the final sentence of Section 8? Ron Paul, in his book "End the Fed", points to this decision as the birth of the central bank and the bane of our economy. Many consider the Constitution a living document but has this decision created a Pandora Box? Does the Implied Powers Clause make recent legislation, i.e. Patriot Act, TARP, and Health Care reform, Constitutional or does it display that Marshall's decision and establishment of Implied Powers Clause in itself is unconstitutional?