Why McCulloch v. Maryland Cemented Federal Supremacy And Shaped Implied Powers

A state tax, a national bank, and a constitutional reckoning—this is the moment McCulloch v. Maryland turned a revenue measure into a blueprint for federal power. We bring Dr. Beienberg back to trace the story from the first bank fight of the 1790s through the War of 1812 and into Chief Justice John Marshall’s opinion, showing how a practical question about taxing a federal institution became a lasting lesson on supremacy and implied powers.

We dig into the core debate that split Jefferson and Hamilton: What does “necessary and proper” really mean? Jefferson wanted “necessary” to be indispensable; Hamilton argued for useful and appropriate. Madison’s experience running a war moved him from skepticism to support for a bank, setting the stage for Congress to recharter the Second Bank. When Maryland tried to tax it, the Court had to decide whether a state could burden the chosen means of executing enumerated powers like taxation, borrowing, and regulating commerce. Marshall answered with a framework that still governs: federal laws made pursuant to the Constitution trump conflicting state laws, and Congress may choose means that are appropriate and plainly adapted to legitimate ends, not a pretext for unrelated aims.

Along the way, we explore why Marshall’s majestic writing made McCulloch endlessly quotable and endlessly arguable. Critics, including Madison, feared not the holding but the sweep of the language—phrases that later courts would invoke to justify broader federal authority under the Commerce Clause. We tie those concerns to modern debates about implied powers, proportionality, and constitutional limits, highlighting how McCulloch can be read to support energetic national solutions while insisting on a real connection to enumerated powers.

If you care about how Congress builds programs, how states push back, and how courts police the boundary, this conversation gives you the tools to read McCulloch with nuance. Subscribe, share with a friend who loves constitutional history, and leave a quick review telling us how you read “necessary and proper.”

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Chapters

• 1:33 Setting The Stage: McCulloch
• 1:55 The Bank Debate Reignites
• 3:22 Jefferson vs. Hamilton On Necessity
• 4:13 Madison’s Turn And The Second Bank
• 4:41 Maryland’s Tax And Narrow Question
• 5:14 Marshall’s Opinion And Its Critics
• 6:59 Necessary And Proper: Two Readings
• 8:07 Implied Powers And Limits
• 9:49 Marshall’s Style And Lasting Quotes
• 11:09 From McCulloch To Commerce Clause

Transcript

SPEAKER_00: 0:47

Welcome back to Civics Mere. Today we're talking about McCullough versus Maryland. So another Supreme Court case from the 19th century. Dr. Beinberg is back with us. Dr. Beyenberg, we're looking at this case from 1819 that's talking about the supremacy of the U.S. Constitution and federal laws over state laws. So what is McCullough versus Maryland really about?

SPEAKER_01: 1:13

So McCullough v. Maryland is part of a long-standing multi-decade discussion over whether a bank of the United States is constitutional or not. So this is sort of the second of three, I guess I would say, maybe four, if we're counting sort of Tyler at the very end, sort of skirmishes in that long war. So the very, very beginning is effectively does Congress with its enumerated powers have the right to charter a bank? And this is really what splits Marshall, excuse me, Madison and uh Hamilton at the founding. And it's easy in a sense to overstate the disagreements in some of this stuff. So effectively, in both the first bank of the United States debate in the 1790s, and then in McCulloch again, there's a question of obviously everybody recognizes there is no ex no power to just incorporate a bank, right? Jefferson, like they all agree, Hamilton agrees with that. He concedes that very quickly. The question is is incorporating a bank a necessary and proper technique to implement some of the other enumerated powers, particularly commerce and then raising and like raising supporting armies and taxing and spending, right? And Jefferson takes back in the day a very, very strict, and I'm spending time on the first bank because McCulloch re basically repeats all these. Yes. Jefferson says necessary and proper means the Congress can't do it unless that's the only effectively way that power could be implemented. And Hamilton, which Hamilton then correctly says, he's effectively adding the word absolutely before necessary, right? This is the absolutely necessary way to implement. We can't have a tax power without it. And so Hamilton is right in critiquing Jefferson there. Conversely, Hamilton wants to say effectively necessary and proper can be almost anything that's kind of like convenient or attached to. And so Jefferson can critique him and say, well, no, like your definition is really, really infinitely flexible. Right. And so McCullochy, Maryland, and so that bank, the first bank expires. Madison actually changes his mind, ironically, and says, empirically, I know that a bank is necessary and proper to these, because when it expired, I couldn't meaningfully do these things during the War of 1812. So like the proof is in the pudding. It's actually pretty necessary for us to be able to run these. So they recharter the second bank of the United States and it gets attacked on constitutional grounds. Originally, the question is not is a bank constitutional or not. It's a much more narrow question of basically Maryland wants to tax the bank, not because they want to destroy it, but because they want to scare up some revenue. They're taxing other banks, they want to tax this bank too. And so there's a sense in which this case could be really narrow, which is this seemingly is Maryland sort of interfering with the federal government, doing something that, if we think, as Madison had then said, a bank is a necessary and proper implementation of these other enumerated powers, then we have to do this, and this is interfering with it. Marshall gets critiqued. And for those who really want to dive into this, the best book analysis of this is by a scholar named Richard Ellis called Aggressive Nationalism. And effectively, when McCulloch comes down, there are not that many people who are really upset that a bank was upheld. The concern is that there's some language in McCulloch that is potentially very, very expansive in terms of its interpretation of power. So the fact that McCulloch holds and lays out the idea that constitutional laws are supreme and Trump state laws, it lays it out very extensively. That part is not in itself particularly controversial. So McCulloch is important for that, but that part is not controversial. Even the critics, and one thing that's kind of a funny aside, McCulloch's opinion gets criticized in the press, and Marshall starts writing basically anonymous op-eds defending it and saying, like, here's what it really meant, because that brilliant John Marshall had these great thoughts. I just love the idea of like John Roberts like writing angry op-eds into the Washington Post today about how brilliant John Roberts is. But that's basically what John Marshall is doing. But if you read some of those critiques by James Madison or Spencer Roan, they're not that mad that a bank gets upheld. They're not that, they're not, they have no problem with the idea that a federal law should trump a state law if that federal law is indeed authorized by the Constitution. So that's critically important. What they get upset about is that there's some language in McCulloch that both talks about the origins of the union in ways that are sort of really weird and completely unnecessary. But there's also some language in there that sounds like Hamilton in terms of the necessary and proper clause. And there's also language in there that sounds like Madison in the necessary proper clause, right? So McCulloch is a kind of choose your own adventure if you're thinking about it as a precedent. Because on the one hand, you can cite language that sounds very Hamiltonian, where he says necessary doesn't mean absolutely necessary. Jefferson is wrong. He says, we don't think that it means there's an absolute physical necessity so strong that a thing can't exist without the other. Right? Jefferson's wrong about that. And then he says, you know, it sometimes means basically something that produces that end, something that is convenient or useful or essential. So that sounds kind of Hamilton and expansive. But then he goes on to say that the powers of the government are limited, and sound construction requires that all means which are appropriate and plainly adapted to that end, right? So they can't just be a pretext where we want a bank and so we're just gonna point at something and call it a day, right? So you know, later courts, you can point at McCulloch and say, this means the necessary and proper clause is almost anything goes, or this means the necessary and proper clause isn't a pretext for any random thing that Congress wants to do. Marshall tends to write in very, very sweeping, kind of almost political speech-like language, which is how he can get drafted into stuff something later. So like everybody's gonna point at McCulloch, you know, in the 20th century and say, it's on my team. But fundamentally, it lays out the case for federal law being supreme over state law if it's a constitutionally authorized, which he goes through and explains that it is. So that's that's sort of its major thing. It sometimes gets described as like coming up with the idea of implied powers. Again, that's not something that was something people are talking about. That's something that the Federalist papers talk about, where Madison says the necessary and proper clause really doesn't do anything because those powers are already effectively implied. So uh, like with Marbury, it's the case where the court is really laying out the logic for these kinds of things. And so it's establishing it in that sense, but it's not like coming up with the idea that there are implied powers that are necessary to implement the enumerated powers. Again, it's worth emphasizing that implied powers, even in Hamilton's formulation, always has to go back to the enumerated, to an enumerated power implementation. He might be a little more freewheeling in how tight that connection has to be than others are. So Marshall is trying, in a sense, to be closer to Madison's views in 1790 than either Jefferson, which is ultra strict, or Hamilton, which is very, very expansive and capacious. But depends on which challenge. Yeah, sorry, go on.

SPEAKER_00: 8:53

So a lot of these earlier cases, though, are just like take this as like the Constitution now in practice and really trying to interpret for future generations and set a precedent for what this means.

SPEAKER_01: 9:08

Yeah, I I I would say in some sense it's it's defining and explaining as much as uh as much as anything else, right? So it's not there, there's no, yeah, there's not a court precedent for some of this stuff earlier because it's early cases, right? Like so I mean the Supreme Court really is not taking very many cases early on in its history. They start taking a whole ton, you know, in the 19th century, but or later in the 19th century. So yeah, Marshall is trying to effectively explain and lay out some of this stuff. Uh and again, he's a good writer. Sometimes he can write sort of things that you can pull it, pull at it in either direction. Because it's his writing style is his writing style is majestic in the sense that it reads like a political speech more than really, really boring. It's why he's quote so it's partly why he gets cited so much, is because it's really quotable, right? We must never forget is the constitution, big capital letters we are expounding. Well, what does that actually mean, though, right? So uh in a way that, well, commerce means blah, blah, blah, blah, blah, blah, blah, right? So so yeah, Marshall is so McCulloch is controversial when it comes down, less for its result, because people are not that worked up about a bank. On the whole, on the whole, Jackson and his faction still are, but more for the language that some of the critics point, I think, correctly to say there's some real flowery language in here that can get used in some strange ways later. And indeed that happens, you know, during the 20th century as they're expanding the commerce clause, they'll point to McCulloch and pick out those little quotes that effectively say it's anything that's convenient, ignoring the, but it has to actually be a meaningful connection and not basically a pretext.

unknown: 10:54

Yes.

SPEAKER_00: 10:55

And I feel like that's going to be the perfect segue into our next episode. Kind of a little bit on the commerce clause, but really looking at Gibbons the Ogden. Dr. Beyenberg, thank you.