John Marshall and the Constitution, a Chronicle of the Supreme CourtCorwin, Edward Samuel
History
John Marshall and the Constitution, a Chronicle of the Supreme Court
Corwin, Edward Samuel
Constitutional history -- United States; Marshall, John, 1755-1835; United States. Supreme Court
Marshall found his first opportunity to elaborate the tenets of his
nationalistic creed in the case of M'Culloch vs. Maryland, which was
decided at the same term with the Dartmouth College case and that of
Sturges vs. Crowinshield--the greatest six weeks in the history of the
Court. The question immediately involved was whether the State of
Maryland had the right to tax the notes issued by the branch which the
Bank of the United States had recently established at Baltimore. But
this question raised the further one whether the United States had in
the first place the right to charter the Bank and to authorize it to
establish branches within the States. The outcome turned on the
interpretation to be given the "necessary and proper" clause of the
Constitution.
The last two questions were in 1819 by no means novel. In the Federalist
itself Hamilton had boldly asked, "Who is to judge of the necessity and
propriety of the laws to be passed for executing the powers of the
Union?" and had announced that "the National Government, like every
other, must judge in the first instance, of the proper exercise of its
powers, and its constituents in the last," a view which seems hardly to
leave room even for judicial control. Three years later as Secretary of
the Treasury, Hamilton had brought forward the proposal which soon led
to the chartering of the Bank of 1791. The measure precipitated the
first great discussion over the interpretation of the new Constitution.
Hamilton owned that Congress had no specifically granted power to
charter a bank but contended that such an institution was a "necessary
and proper" means for carrying out certain of the enumerated powers of
the National Government such, for instance, as borrowing money and
issuing a currency. For, said he in effect, "necessary and proper"
signify "convenient," and the clause was intended to indicate that the
National Government should enjoy a wide range of choice in the selection
of means for carrying out its enumerated powers. Jefferson, on the other
hand, maintained that the "necessary and proper" clause was a
restrictive clause, meant to safeguard the rights of the States, that a
law in order to be "necessary and proper" must be both "necessary" and
"proper," and that both terms ought to be construed narrowly.
Jefferson's opposition, however, proved unavailing, and the banking
institution which was created continued till 1811 without its validity
being once tested in the courts.
Public-domain text, read in full here on John Shaqi.
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