Wednesday, July 26, 2017

Why the McCulloch v. Maryland Decision was Flawed

McCulloch v. Maryland was a landmark Supreme Court decision in 1819. The decision for this case is still relied upon as key precedent for interpreting the “necessary and proper” clause. Chief Justice Marshall put forth the unanimous decision of the Court that determined that the National Bank was constitutional because the “means to obtain the ends” was deemed acceptable for the national government to pursue its enumerated powers for collecting and laying taxes as well as borrowing money.

The battle over the National Bank started over two decades earlier when the National Bank was passed by the Washington administration guided by the tutelage of his Treasury Secretary, Alexander Hamilton. Arguing against the passage of the bank were House leader James Madison and Secretary of State Thomas Jefferson. Madison argued that the constitution’s theory of limit and enumerated powers of the federal government would be “destroyed” by erecting a National Bank. Madison argued further that if a Bank is necessary than the government could control “every object within the whole compass of the political economy” by using creative means to obtain those ends. Madison said that a National Bank was not necessary, but “convenient”. Marshall’s decision would define “necessary” as also meaning “convenient” among other broader definitions. Jefferson argued that “necessary and proper” meant “restraining them [enumerated powers] to the necessary means, that is to say, to those means without which the grant of power would be nugatory.” He further exclaimed that enumerated powers could “be carried into execution without a bank”. Probably the best argument defining the “necessary and proper” clause was provided by Attorney General Edmund Randolph. While Hamilton and Marshall use the “necessary and proper” clause to expand enumerated powers of the federal government to include ANY means to obtain the ends, Randolph rightly points out the key word in the clause is “proper” and not “necessary”. Randolph points out that the word “proper” does not “enlarge the powers of Congress, but rather restricts them.” Proper restricts what is necessary to what is appropriate, correct, right, accepted, conventional, regular, or orthodox. “Necessary and proper” does not purport ANY or ALL means that is necessary to obtain the ends as supported by Hamilton and Marshall. However, Marshall says in his decision “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 constitutional, are constitutional.” Marshall uses the term “appropriate” but he classifies appropriate as ANY means to an end that is not prohibited by the constitution. It is highly debatable that a National Bank is the right, correct, accepted, orthodox, and conventional means to lay and collect taxes.

After a huge backlash of negative media following his decision, Marshall wrote a series of articles defending his decision stating “In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution.” However, Marshall’s decision opened the floodgates for the “necessary and proper” clause to be abused by the federal government to expand its powers over the next two centuries. As Madison said “Is there a Legislative power in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified Power?” Despite this, Madison did not veto the Bank bill as President of the United States in 1816. Madison, argued that he was following “precedent” over 25 years of debate on the issue and hence, he decided to merely conform (although he personally objected). In 1832, President Andrew Jackson vetoed the Bank bill by saying “precedent” can be dangerous. He also stated that “nor can I conceive it ‘proper’ that the substantive and most essential powers reserved by the States shall be thus attacked and annihilated as a means of executing the powers delegated to the General Government.” Jackson further argues “We may not pass an act prohibiting the States to tax the banking business carried on within their limits, but we may, as a means of executing our powers over other objects, place that business in the hands of our agents and then declare it exempt from State taxation in their hands.” Jackson also points out the dangers of Congress having more power: “to make the rich richer and the potent more powerful.” “Many of our rich men have not been content with equal protection and equal benefits but have besought us to make them richer by act of Congress.” “We can at least take a stand against all new grants of monopolies and exclusive privileges, against any prostitution of our Government to the advancement of the few at the expense of the many…” Jackson correctly portrays what happens when Congress is employed with more power and why Marshall’s interpretation of the “necessary and proper” clause was flawed in the McCulloch decision.

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