first-year law review

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Constitutional Law: Congressional Power Beyond the Enumerated Powers

We’ve started Constitutional law by reading McCulloch v. Maryland. Essentially, Congress chartered a bank and Maryland passed a law taxing banks which weren’t chartered by the state legislature (the National Bank). The local cashier refused to pay so Maryland sued. The case was taken up by the Supreme Court, and the first issue (which is the only one we’ll deal with now) Justice Marshall took up was whether Congress had the power to incorporate a bank. Marshall held that the government is supreme in its sphere of action. That sphere is limited by the enumerated powers granted to Congress by the Constitution. One of the arguments against Congress having the authority was the “Necessary and Proper” clause (Art. 1, Sec. 8, Clause 18). The bank’s opponents said that the bank wasn’t necessary (meaning absolute necessity) to laying taxes, borrowing money, and providing for an army. The bank’s supporters argued for a more liberal interpretation of “necessary” and said that absolute necessity would unreasonably constrict the government’s ability to engage in its authorized powers. This is the line that Marshall took. He said that the normal use of “necessary” is that a means is calculated to reach an end, and as long as that end is one of the enumerated powers, the means is allowed (as long as it’s plainly adapted to meet the end). This is the two-step McCulloch test for determining if the government has the power to do something.


January 9, 2007 - Posted by | Constitutional Law

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