Key Excerpts from the Opinion
Chief Justice Marshall delivered the opinion of the Court.
The first question made in the case is-has congress power to incorporate a
bank?
. . .
This government is acknowledged by all to be one of enumerated powers. . . .
Among the enumerated powers, we do not find that of establishing a bank or
creating a corporation. But there is no phrase in the instrument which, like the
articles of confederation, excludes incidental or implied powers; and which
requires that everything granted shall be expressly and minutely described. Even
the 10th amendment . . . omits the word "expressly," and 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;" . . . A constitution, to 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 . . . would, probably, never
be understood by the public. Its nature, therefore, requires, that only its great
outlines should be marked.
. . .
Although, among the enumerated powers of government, we do not find the word
"bank" or "incorporation," we find the great powers, to lay and collect taxes; to
borrow money; to regulate commerce; to declare and conduct a war; and to raise
and support armies and navies. . . . But it may with great reason be contended,
that a government, entrusted with such ample powers . . . must also be entrusted
with ample means for their execution. The power being given, it is the interest of
the nation to facilitate its execution. . . .
But 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. 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 this constitution, in the
government of the United States, or in any department thereof.". . .
. . . This provision is made in a constitution, intended to endure for ages to come,
and, consequently, to be adapted to the various crises of human affairs. To have
prescribed the means by which government should, in all future time, execute its
powers, would have been . . . an unwise attempt to provide . . . for exigencies
which, if foreseen at all, must have been seen dimly, and which can be best
provided for as they occur. . . .
. . . 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. . . .
. . . [I]t is the unanimous and decided opinion of this Court, that the act to
incorporate the Bank of the United States is . . . constitutional; and that the power
of establishing a branch in the State of Maryland might be properly exercised by
the bank itself, we proceed to inquire. . . .
2. Whether the State of Maryland may, without violating the constitution, tax that
branch? . . .
. . . There is no express provision for the case, but the claim has been sustained
on a principle which so entirely pervades the constitution. . . . This great principle
is, that the constitution and the laws made in pursuance thereof are supreme;
that they control the constitution and laws of the respective states, and cannot be
controlled by them. From this . . . other propositions are deduced as corollaries. . . .
. . . That the power to tax involves the power to destroy. . . .
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. They may
tax the mail; they may tax the mint; they may tax patent-rights; they may tax the
papers of the custom-house; they may tax judicial process; they may tax all the
means employed by the government, to an excess which would defeat all the
ends of government. This was not intended by the American people. They did not
design to make their government dependent on the states. . . .
. . . The result is a conviction 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 to carry into execution the powers
vested in the general government. This is, we think, the unavoidable
consequence of that supremacy which the constitution has declared. We are
unanimously of opinion, that the law passed by the legislature of Maryland,
imposing a tax on the Bank of the United States, is unconstitutional and void.
Questions to Consider:
- How did Chief Justice John Marshall justify the power of the federal
government to establish a bank? What phrases in the Constitution does
he use to support his argument?
- The Articles of Confederation did not allow the national government to
exercise implied powers. Why?
- How does one determine that a power is "implied" when it is not
specifically stated in the Constitution?
- In the Court's opinion, Chief Justice Marshall says, "the power to tax
involves the power to destroy". Explain.
- In making this decision, the Supreme Court of the United States helped to
determine the relationship of the federal and state governments to one
another. Which is supreme? What impact did this decision have on the
future of the United States? If the decision had been different-that the
states had power to regulate or tax the national government-how might
our lives be different now?
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