Federalism and the Constitution

McCulloch v. Maryland (1819)

Case background and primary source documents concerning the Supreme Court case of McCulloch v. Maryland. Dealing with the Constitution’s Necessary and Proper Clause, this lesson asks students to asses to what extent the Necessary and Proper Clause grants a new power to Congress and what is the meaning of “proper” in this context.

Founding Principles

Federalism image

Federalism

The people delegate certain powers to the national government, while the states retain other powers; and the people, who authorize the states and national government, retain all freedoms not delegated to the governing bodies.

Limited Government image

Limited Government

Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.

Case Background

The Necessary and Proper Clause gives Congress the power to “make 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.” It is not a free-standing grant of power, but rather was intended to give Congress the power to enact laws needed to “carry into execution” the various powers granted to the federal government by other parts of the Constitution.

The wording of the Clause suggests that a law authorized by it must meet two separate requirements: it must be “necessary” to the execution of some power granted to the federal government, and also “proper.” Since at least the 1790s, debate has raged over the meaning of these two terms. In the early republic, debate over the interpretation of the Clause focused on the constitutionality or lack thereof of the First Bank of the United States. When the Bank was first proposed in 1790, James Madison and Thomas Jefferson argued that its establishment was not authorized by the Necessary and Proper Clause because the word “necessary” should be interpreted to include only such measures as are truly essential to the implementation of other federal powers. By contrast, Secretary of the Treasury Alexander Hamilton defended the Bank, arguing that “necessary” should be interpreted to include any law that is “useful” or “convenient.” The issue of the constitutionality of the Bank did not reach the Supreme Court until 1819, when the justices decided the case of McCulloch v. Maryland.

While the Supreme Court has addressed the meaning of the word, “necessary” in a number of cases over time, it has focused far less attention to the meaning of “proper.” Controversy over both terms continues.


How should the Necessary and Proper clause of the Constitution be interpreted? Students will analyze the first major Supreme Court case to take up this question with this Homework Help video.

Key Question

To what extent does the Necessary and Proper Clause grant a new power to Congress? What does “Proper” mean?

Directions

Read the Case Background and Key Question. Then analyze the Documents provided. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of the Documents as well as your own knowledge of history.

Learning Objectives

  • Students understand the major events and controversies related to interpretation of the Necessary and Proper Clause from the founding to the present day.
  • Students understand and apply constitutional principles at issue in McCulloch v. Maryland to evaluate the Supreme Court’s ruling in that case.

Activities

  1. To prepare students for his lesson, have them read the Case Background for McCulloch v. Maryland (1819).
  2. Lead students though a careful whole-class study of Documents F, G, and H. These reports prepared by President Washington’s cabinet members on the National Bank establish the primary lines of reasoning for differing methods of interpreting the Necessary and Proper Clause.
  3. Assign appropriate documents for student analysis. Documents A – I address the historical background and Constitutional significance of the issues in McCulloch v. Maryland. Documents J – M prompt students to consider the continuing significance of these constitutional issues.
  4. Use key question, “Does the Necessary and Proper clause grant a new power or does it serve to limit the ones that come before it? What does “Proper” mean?” for class discussion or writing assignment, focusing on the constitutional principles involved in the case.
  5. Have students use Graphing Federal Power to show the change in the level of federal power over time, using the Supreme Court cases, McCulloch v. Maryland and U.S. v. Comstock. They may expand on this graph as they study the constitutional principle of federalism in the remaining lessons in this unit, Gonzales v. Raich and South Dakota v. Dole.
  6. Have students collect and analyze current events articles related to the Necessary and Proper Clause.

See RESOURCES for additional Graphic Organizers.

Materials

  1. United States Constitution, Article 1, Section 8, Clause 18 (1787)
  2. An Old Whig (1787)
  3. Brutus #1 (1787)
  4. Federalist #33 by Alexander Hamilton (1788)
  5. Federalist #39 by James Madison (1788)
  6. Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National Bank (1791)
  7. Memorandum #1: Edmund Randolph to George Washington (1791)
  8. Alexander Hamilton’s Opinion on the National Bank (1791)
  9. McCulloch v. Maryland (1819), Unanimous Opinion
  10. Jackson’s Veto Message, July 10, 1832
  11. King Andrew the First cartoon (1833)
  12. U.S. v. Comstock (2010), Majority Opinion
  13. U.S. v. Comstock (2010), Dissenting Opinion

Background Information

Documents F, G, H: Cabinet Opinions regarding constitutionality of a national bank
By the time President George Washington named Alexander Hamilton Secretary of the Treasury, Hamilton had already begun to craft a plan to assure the economic success of the new nation. Central to his plan, which was modeled on the English financial system, was the incorporation of a national bank that would stimulate the economy and establish the credit of the United States. Other members of Washington’s cabinet were skeptical. Washington asked each one to prepare a report explaining his answer to this question: Does the Constitution permit Congress to establish a national bank? Secretary of State Thomas Jefferson, (Document F) interpreted the Necessary and Proper Clause narrowly, deciding that the bank was unconstitutional because it was not specifically included in the enumerated powers of Congress. Based on his interpretation of the Necessary and Proper Clause, Attorney General Edmund Randolph (Document G) advised the President that the bank was unconstitutional. Hamilton built his defense of the bank on the implied powers of the Necessary and Proper Clause. Hamilton’s argument (Document H) was most persuasive to Washington and he signed the Bank Bill. These approaches to understanding the powers of the national government set the foundation for analysis of the constitutional limits on national power continuing into the present day.

Document I: McCulloch v. Maryland (1819), Unanimous Opinion
In 1819 the United States had been a nation under the Constitution for barely a generation when an important case about federal power reached the Court. A National Bank had been established in 1791. When its initial twenty-year charter came up for renewal in 1811, Congress voted not to extend it. Then, following the nation’s brush with bankruptcy in the War of 1812, Congress established the second National Bank of the United States in 1816. Those who supported a National Bank maintained that it was necessary to control the amount of unregulated paper money issued by state banks. However, most states opposed branches of the National Bank within their borders. They did not want the National Bank competing with their own banks, and objected to the establishment of a National Bank as an unconstitutional exercise of Congress’s power.

The state of Maryland imposed a tax of $15,000/year on the National Bank, which cashier James McCulloch of the Baltimore branch refused to pay. The case went to the Supreme Court. Maryland argued that as a sovereign state, it had the power to tax any business within its borders. McCulloch’s attorneys argued that it was “necessary and proper” for Congress to establish a national bank in order to carry out its enumerated powers.

Chief Justice John Marshall wrote that the Necessary and Proper Clause provided for implied powers, including a power to establish the bank.

Document J: Jackson’s Veto Message, July 10, 1832
By the 1830s, the National Bank had experienced several phases of good and bad management, and had weathered charges of corruption. The Bank was a volatile political issue, with many supporters in the East and many detractors in the West and South. The 1828 election of Andrew Jackson as President brought the Bank’s most powerful enemy to the White House. He saw the Bank as a greedy monopoly dominated by a powerful elite and foreign interests. The Bank’s second charter was set to expire in 1836, but in 1832 Senator Henry Clay proposed re-chartering it early, explaining a number of benefits and winning approval of his bill in both Houses of Congress. However, Jackson’s view of the Bank is summarized in a February 19, 1932 letter to John Coffee: “Unless the corrupting monster should be shraven with its ill-gotten power, my veto will meet it frankly and fearlessly.” As promised, Jackson vetoed the bill. Congress could not muster the two-thirds majority needed to overturn the veto, so the bank’s charter expired in 1836 and was never renewed.

Document L: U.S. v. Comstock (2010), Majority Opinion (7-2)
President George W. Bush signed the Adam Walsh Child Protection and Safety Act into law in 2006. The law required that sex offenders register their whereabouts periodically, created a national sex offender registry, and Section 4248 of the law provided for continued incarceration of certain offenders even after they had completed their criminal sentences. A federal judge had authority to civilly commit individuals who were in the federal prison system if it were proven that they continued to be sexually dangerous.

Just before Graydon Comstock was to have completed his 37-month sentence for receiving child pornography, U.S. Attorney General Alberto Gonzales certified that he remained a sexually dangerous person, which meant that he would not be released. Lower courts had ruled that Section 4248 of the law was unconstitutional, on the basis that it exceeded the constitutional power of Congress. Justice Breyer delivered the opinion of the Supreme Court, determining that the powers implied in the Necessary and Proper Clause built on themselves and granted Congress the power to enact such a law.

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