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McCulloch v. Maryland, 17 U.S. 316 

Supreme Court of the United States






The Role of the Supreme Court in the Constitutional Order




The Sources of Judicial Decisions

Quick Notes

Maryland did not have the power to Tax a bank created by Government.  Article VIs says the constitution is the supreme law of the land!!! 

Book Name

Constitutional Law : Stone, Seidman, Sunstein, Tushnet.  ISBN:  978-0-7355-7719-0.



o         Whether Congress has the power to incorporate a bank?  Yes.

o         Whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument?  The word necessary is not limiting, but enlarging.

o         Whether the State of Maryland may, without violating the Constitution, tax that branch?  No.




o         Held for McCulloch


o         Reversed.

o         We conclude that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.




Key Phrases


Pl Maryland (Originally)

Df McCulloch (Government)

Party Description

o         Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not chartered by the state.

o         The statute provided that all such banks were prohibited from issuing bank notes except upon stamped paper issued by the state.

o         The statute set forth the fees to be paid for the paper and established penalties for violations.


o         The Second Bank of the United States was established pursuant to an 1816 act of Congress.

o         McCulloch (D), the cashier of the Baltimore branch of the Bank of the United States, issued bank notes without complying with the Maryland law.

o         Maryland sued McCulloch for failing to pay the taxes due under the Maryland statute and McCulloch contested the constitutionality of that act.

o         The state court found for Maryland and McCulloch appealed.  

Power Exercised by First Congress

o         The power now contested was exercised by the first Congress elected under the present constitution.

o         There was much debate.

o         It then became law.


Marylands Argument

o         Argues that they are a sovereign state and the powers of general government are delegated by the States, and must be exercised in subordination to the States.

o         Basically, saying States possess supreme Dominion.


Supreme Court

o         The Government of the Union, though limited in its power, is supreme within its sphere of action.

o         People have said the Constitution is the Supreme Law of the land.

o         Members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to [the Constitution].

o         There is no phrase in the Articles that excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutes described.


10th Amendment

o         Declares only that the powers not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people.



o         Whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument?


Supreme Court [Article 1, Section 8] Arguments

o         The happiness and prosperity of the nation depends on the Governments ability execute powers entrusted to it by the Constition.

o         The constitution gives the Government the right to collect taxes, to borrow money, to regulate commerce, to declare war, expend revenue, raise armies, reverse order, etc.


Raising Revenue

o         Raising revenue and applying it to the nation purpose, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require.


Constitutional Law > Congressional Duties & Powers > Necessary & Proper Clause

o         The Constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning.

o         To its enumeration of powers is added that of making all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by the Constitution, in the government of the United States, or in any department thereof.


Marylands  Argument Necessary

o         Congress is not empowered the make all laws.

o         Only as may be necessary and proper for carry them into execution.

o         Necessary means indispensible.


Courts Response Necessary

o         To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.

o         Basically, dont always takes words in the rigorous sense, but in their common usage.

o         i.e., A thing may be necessary, very necessary, absolutely or indispensably necessary.

o         Absolute is not in front of necessary.


Courts Response the necessary clause

o         1st. The clause is placed among the powers of Congress, not among the limitations on those powers.

o         2nd. Its terms purport to enlarge, not to diminish the powers vested in the government.

o    In purports to be an additional power, not a restriction on those already granted.



o         Whether the State of Maryland may, without violating the Constitution, tax that branch?


Courts Taxation Analysis

o         That the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied.

o         The States are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws.


o         The power of the State to tax the bank is exempted.

Supremacy Clause [Article VI]

o         The constitution and the laws made in pursuance of thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them.

What does this mean

o    1st. that a power to create implies a power to preserve.

o    2nd. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve.

o    3rd. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.


o         Power to tax would destroy the supremacy clause.

o         It is the very nature of supremacy to remove all obstacles to its action, to modify every power vested in subordinate government, and to exempt it own operation from their influence.

o         To tax would be an abuse, which would banish the CONFIDENCE which is ESSENTIAL to ALL government.


Maryland  Arg Exercise their known of the Constitution

o         States may exercise their acknowledged powers upon [constitution], and that the constitution leaves them this right in the confidence that they will not abuse it.


Courts Response

o         If the States may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument.

o         The American people did not design to make government dependent on the states.


Part of a Whole

o         States tax their constituents, as in people in their States.

o         The Government is not a constituent of a State.



o         We conclude that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.

o         Reversed.

Does not extend too

This principle does not extend to a tax paid by the real property of the Bank of the United States, in common with the other real property in a particular state, nor to a tax imposed on the proprietary interest which the citizens of that state may hold in this institution, in common with other property of the same description throughout the state.




Article VI (Legal Status of the Constitution)

  • All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.


Supremacy Clause

  • This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.


  • The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.



Class Notes