August 28, 2000
McCulloch v. Maryland
1783 – 89: Articles of Confederation (13 independent colonies; no true united govt.)
1789: Constitution ratified
1791 – 1811: 1st national bank – would hold tax dollars coming in and pay the govt. debt; chartered for 20 years but not renewed because of competition to the state banks
During the war of 1812 it became apparent that maybe needed a national bank because US could not pay; value of re-emerged
1816: 2nd national bank – chartered for 20 years
1819 – 1836: McCulloch v. Maryland
How does the court defend for Congress to have a national bank?
No clear literal text giving feds the power to charter a national bank; in the absence of, how does the court go about doing?
1. The first thing Marshall points to is the legislative practice of the 1st Congress as precedent.
2. Next, he points out that it was a law acted upon by the judicial arena, thus court assumes bank Constitutional; precedents impliedly assumed bank was Constitutional.
He says that Congress and the president debated over the issue thus it was well-considered legislative/executive views.
3. He also discusses the nature of the structure of the state v. federal govt.
DUAL theory of federalism (State & Federal); separate sovereigns
Each comes from the people.
Maryland says that the federal govt. was created by the states; this conflicts with the Constitution, “we the people…” They believed there should then be a limited view in favor of the states. No argument here that the states should win.
Marshall looks at various related provisions:
p.72 – No phrase which excludes implied powers in the Articles of Confederation; not so here.
10th Amendment – omits the words “expressly”; should be reserved to the states or the people if not delegated (can be express or implied); makes a good argument for both.
Purpose of drafting of the Constitution as a much smaller document that outlines the important designated objects.
There are some provisions that Congress clearly has. Under the necessary and proper clause, the question is whether we can deduce some minor powers to do those things necessary and proper. Article 1, sec.8, par. 1-17, 18 (necessary and proper clause)
Seems directly supportive.
If give the federal govt. a duty then should give them the means to carry it out. This makes the argument for a national bank.
Maryland tries to argue that whatever the implied powers are, they have to be absolutely necessary. The necessary and proper clause would thus limit the implied powers.
p.76 – Limitations are stated for the powers of the state and federal powers, Article 1, sec. 9 and 10.
No use of the word absolutely thus should emphasize the word necessary. Sometimes the words left out are important.
“Commerce among the states”
State only – concurrent state and federal – federal only
Gibbens V. Ogden
Issue is really whether the federal govt. has the power to grant licenses for these navigable waters?
Is what Congress is regulating commerce among the states:
IS IT COMMERCE?
IF SO, IS IT AMONG THE STATES?
Literal text: p.83
Ordinary meaning of the term p.83-84
Practice and precedent: p.83, consented to, assumption
Related provision: p. 84
** What is that commerce that is only for the states to regulate?
completely internal commerce
does not affect other states
ice the court does not refer to the state’s judgment as to whether there is a real safety issue because they are slightly skeptical of what the state legislature has done; state’s fact-finding not trusted..
South Carolina State Highway Department v. Barnwell Brothers, Inc.
What is the state interest? Traffic safety because the roads were built for these size trucks in width; when over they tend to force other drivers off of the road; also, older construction and just not made as well
How much of a burden would this be? Very, because they would have to go around the state or conform to the statute; other states don’t have that barrier
Court allows the statute to stand because have a legitimate and strong safety concern.
Southern Pacific Co. v. Arizona
What is the state interest? Safety; accidents from “slack” action
How much would the burden be? Very heavy because of the economics of having to change train lines, shipping less and requiring more trains to run, or having to go through other states. With the need to have more trains run, there is a stronger likelihood of more accidents.
Court doesn’t agree.
Note cases, p.106
Bibb v. Navajo Freight Lines, Inc. – not a particular state safety issue so thrown out
Kassel v. Consolidated Freightways Corp. – no real argument here, no facts to support a safety argument; state loses