American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ embraced Hamilton’s position and created the First Bank of the United States in 1791 and the Second Bank of the United States in 1816. To express its opposition, the state of Maryland then passed legislation to tax all banks operating in the state that were not chartered by the state. James McCulloch, the head of the Baltimore branch of the Second Bank, refused to pay the tax. This led to a lawsuit between McCulloch and Maryland that ended up in the Supreme Court.

      The Court confronted two legal questions when deciding McCulloch v. Maryland: Did Congress have the authority to create a national bank? And if so, did the state of Maryland have the authority to tax the Baltimore branch of that bank? The Court unanimously decided that Congress did have the authority to create a national bank. It concluded that creating the bank was a legitimate exercise of Congress’s implied powers. In so doing, the Court embraced Hamilton’s broad, cooperative federalist interpretation of the necessary and proper clause. By assuming that the necessary and proper clause allows Congress to do those things that are appropriate (as opposed to essential) to carrying out its enumerated powers and consistent with the spirit (as well as the letter) of the Constitution, the ruling paved the way for Congress to significantly expand its powers and to do so at the expense of the states.

      With regard to the second question, the Court concluded that the state of Maryland could not tax the Baltimore branch of the national bank without violating the supremacy clause. As Marshall stated, “the power to tax involves the power to destroy.”²¹ States “have no power, by taxation or otherwise, to retard, impede, burden or in any manner control the operations of the constitutional laws enacted by Congress.”²² Since Congress has the authority to create a national bank, a state cannot punish that bank, discourage its operation within its borders, or seek to destroy it through taxation. To do so would violate the supremacy of national law.

      The Supreme Court’s answers to these legal questions had profound consequences. Its broad interpretation of the necessary and proper clause remains, to this day, an important source of congressional power. In addition, the limit on the power of states to tax the national bank became an important precedent that continues to prevent states from retaliating against or otherwise impeding other entities created by Congress, such as regulatory agencies, that operate within states.

      Gibbons v. Ogden (1824)

      In Gibbons v. Ogden, the Marshall Court again ruled in favor of broad national power, this time in relation to the commerce clause of the Constitution (Article I, Section 8). Now the debate focused on how broadly to read the enumerated powers of the commerce clause, which gives Congress the authority to regulate interstate commerce. But what, exactly, does this authority entail?

      commerce clause Article I, Section 8 of the Constitution, which gives Congress the authority to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

      Dual federalists believe the commerce clause gives Congress only those powers essential to regulating the trade of actual goods and commodities among the states. Therefore, Congress’s power is largely limited to regulating the transportation of these goods and commodities across state lines. Cooperative federalists believe the commerce clause gives Congress the authority to regulate anything that has even an incidental effect on interstate commerce. Thus, in the twentieth century, cooperative federalist interpretations of the commerce clause expanded Congress’s power to include regulation of the workplace (including the passage of minimum wage laws and maximum hour laws), which dual federalists insist should fall to states under their police powers.

      Gibbons v. Ogden set an early precedent for a broad reading of commerce clause power. The case dealt with whether navigation and the transportation of people (rather than of goods and commodities) across state lines were subject to regulation by Congress. Why did this become a question? Aaron Ogden operated a steam-powered ferryboat between New Jersey and New York. The state of New York controlled who could navigate in those waters, and Ogden operated his boat with a state-sanctioned license (part of a steamboat monopoly). Soon thereafter, he faced competition from another ferryboat operated by Thomas Gibbons. Instead of a state-sanctioned license, Gibbons had a federal license granted to him by Congress. Unhappy with the competition, Ogden obtained an injunction from a New York state court to prevent Gibbons from operating his steamboat without a state-sanctioned license. Gibbons appealed, arguing that a license from Congress trumped a state-sanctioned one.

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      Even in the nineteenth century, the waterways around New York City were bustling, making control of ferry service across the Hudson a contentious issue.

      In an opinion again written by Chief Justice Marshall, the Supreme Court embraced the broad interpretation of Congress’s commerce clause power and determined that Congress did have the power to issue the license.²³ Having concluded that Congress had the power to regulate navigation—not only the transportation of goods and commodities—and thus to issue the license to Gibbons, the Court then used the supremacy clause to conclude that New York State could not grant a steamboat monopoly that would render that license void. To do so would interfere with Congress’s commerce clause power.

      Again, this broad interpretation of the commerce clause has had profound long-term consequences. It paved the way for post-1937 rulings by the Supreme Court that allowed Congress to use the commerce clause to pass legislation dealing with everything from minimum wage laws to racial discrimination in restaurants.

      The Resurgence of States’ Rights

      Although the Supreme Court under John Marshall solidly embraced the idea of national supremacy, the debate over federal power versus states’ rights was far from settled. Indeed, it remained one of the most significant and divisive political issues of the 1800s. John Marshall’s successor as chief justice, Roger Taney, moved the Supreme Court in a decidedly dual federalist direction. The most notorious ruling of the Taney Court—and possibly the most notorious Supreme Court ruling of all time—came in the infamous Dred Scott case of 1857 (see Chapter 5). Embracing dual federalism, the Court concluded that Congress had exceeded its powers when it abolished slavery in the territories. By insisting that the issue of slavery be left to individual states, the Court effectively ruled out a national legislative solution to the issue. In so doing, the ruling helped to precipitate the Civil War.

      Nullification, Secession, and the Civil War

      The debate over slavery was the overriding political issue in the days leading up to the Civil War, and states’ rights came to be used as a justification to maintain it. Andrew Jackson’s vice president, John C. Calhoun, an outspoken proponent of states’ rights, proposed that states should be able to invalidate federal laws that they believed to be unconstitutional through the process of nullification.

      Matthew Whitaker, who served as the acting attorney general in the Trump administration after Jeff Sessions resigned, was among those who had earlier advocated a controversial proposal to use the now-discredited doctrine of nullification to invalidate the Affordable Care Act (Obamacare).

      Bloomberg / Getty Images

      nullification The concept that states can invalidate federal laws that they believe to be unconstitutional.

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