McCulloch v. Maryland

[Emsworth]

The decision was unsound.

John Marshall contended that a bank was "necessary and proper to carry into execution several of the enumerated powers, such as the powers of levying and collecting taxes throughout this widely-extended empire; of paying the public debts, both in the United States and in foreign countries; of borrowing money, at home and abroad; of regulating commerce with foreign nations, and among the several states; of raising and supporting armies and a navy; and of carrying on war." The connection became more and more remote as Marshall listed the powers that supposedly authorized the creation of a national bank.

Such a broad reading of the necessary and proper clause is quite dangerous. I agree that Congress should be given some latitude in this regard; the word "necessary" need not be construed too stringently. But be that as it may, a law must bear (to use Justice Thomas' words) an "obvious, simple, and direct relation" to the exercise of an enumerated power, in order to come within the scope of the elastic clause. No such relationship exists with any of the powers cited by Marshall. I fail to see how the power of raising armies, for example, is related to the creation of a bank.

Indeed, the constitutional convention specifically rejected the idea that Congress should have the power to establish a bank. James Madison proposed that Congress should be allowed to "grant charters of incorporation where the interest of the United States might require." In response, Rufus King said that "the establishment of a bank ... has been a subject of contention," and that granting Congress this power might alienate some supporters of ratification. No doubt at least partly swayed by King's reasoning, the convention rejected the proposal.