Introduction

There was nothing easy in the process of creating a new country called the United States, but if we endeavor to understand that process, then it becomes more likely that we will better understand how we’ve arrived at our current state of affairs.  The nation didn’t begin as a collection of states, of course.  They were colonies, each one independently established as a business model and sent off to make money for the British Crown.  By the time these colonists realized their general unhappiness with the mother country — and became resolute enough to do something about it, they had become entrenched in their “independent-mindedness” and would require a somewhat lengthy adjustment process to begin to work as a team.

With only an occasional willingness to work as a team, some may argue that the United States has never been “united” about much of anything.  We evolved from small “regional” societies into something more significant (from settlements to territories to states), and we have remained somewhat regionalized ever since. We may share certain similarities, but we have different attitudes toward various things. We may speak the same language, but our speech has a heavy dialect reflecting where we live. 

So, as we begin to look at how we evolved into a nation, we must give some time and spend some effort trying to understand why American colonists developed different attitudes about such things as citizens’ rights and guarantees.  As we set about this task, understand that words — and their purposes, are essential.  For example, most of the founders of the United States believed that natural rights are inherent in all people by virtue of their humanity and that certain of these rights are inalienable — which means that they cannot be surrendered to the government under any circumstances.  Except that we know this isn’t true.  Early American officials denied some people their inalienable rights —  which made a lie out of some of the words used to form that new country — inalienable being one of those words.

The effort to create a new country began with ending the old one.  For that to happen, the colonists had to openly declare their independence, which they accomplished through their Declaration of Independence — an instrument never modified as to the reasons or justification for rebellion.  I should add armed rebellion.

Once these rebels had declared their independence, it was necessary that they compound their treason by setting up an entirely new government.  The Americans achieved this in increments.  The Continental Congress first operated as a body of delegates to “consider” what they should do (if anything) about laws imposed upon them by the British Parliament.  The work of these delegates began as “committees of correspondence.”  Their first meeting involved twelve of the thirteen colonies between 5 September and 26 October 1774.  It was called the First Continental Congress.  The Second Continental Congress convened on 10 May 1775 and remained “in session” until 1 March 1781.  On that date, it became known as the Congress of the Confederation.

Under the Second Continental Congress, most of the work was done to establish a workable new government for the “United States.”  The instrument to achieve this was the Articles of Confederation, which was wholly inadequate for the operation of a centralized authority by the time ratified.  All thirteen states ratified the document by 1781, but it gave very little power to the central government.  The Confederation Congress could make decisions, but each one required the unanimous consent of each state legislature.  As an example of the inadequateness of the Articles of Confederation — the Confederated Congress could print money, but it was worthless.  Possessing only worthless money, how did the government pay its debts?  It didn’t.

On 21 February 1787, the Confederation Congress called a convention of state delegates in Philadelphia to propose revisions to the Articles of Confederation.  It was not the purpose of this convention to propose new laws — only to offer minor alterations to improve the effectiveness of the central government.  What was needed was a delegation to render the federal constitution “adequate” to preserve the Union.  Not good; not great — just adequate.

Constitutional Convention

The Constitutional Convention took place between 25 May and 17 September 1787.  Someone lied about how no one intended to pass new laws.  What the delegation actually did was propose an entirely new constitution.  The lie was necessary; otherwise, many delegates would not have agreed to attend the meeting.  Attendees offered several broad outlines: the Virginia Plan and the New Jersey Plan.  Progress was slow until July when the so-called Connecticut Compromise resolved enough of the bickering to move forward on the proposal.  More modifications and changes followed over the next several weeks.  Thirty-nine of 55 delegates signed the instrument on 17 September.

The transition from the Articles of Confederation to the U.S. Constitution wasn’t easy.  The debates were contentious, and the push for ratification brought on a seemingly endless barrage of documents, articles, and pamphlets that both supported and opposed ratification.  The opposing sides called themselves Federalists and Anti-Federalists.  Federalists supported the Constitution and urged its ratification; Anti-Federalists refused to agree to ratification without incorporating a bill of rights.

The Bill of Rights 

After ratification, the courts held that the Bill of Rights extended only to the federal government’s actions and placed no limitations on the authority of any state or local government.  The people’s protection under the law only applied to federal law.  None of the Bill of Rights applied to American citizens beyond federal law until these protections were “incorporated” into state constitutions and bills of rights.  Each state is sovereign, remember.

After the Civil War, beginning in 1865, the Thirteenth Amendment declared the abolition of slavery.  The incorporation of this amendment gave rise to the incorporation of other amendments, too. 

Before the ratification of the Fourteenth Amendment and the development of the incorporation doctrine, in 1833, the Supreme Court held in Barron v. Baltimore that the Bill of rights applied only to the federal — but not any state government.  Even years after the ratification of the Fourteenth Amendment, the Supreme Court ruled that the First and Second Amendments did not apply to state governments.[1]  In the 1920s, a series of supreme court decisions interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights (for the first time) as enforceable against the state governments.[2]

With a reminder about the importance of words, recall that in the American experience, the Declaration of Independence was never once “revised.”  However, the Constitution of the United States has undergone 27 modifications — beginning with the first ten amendments, commonly referred to as the United States Bill of Rights.  The reason for the Constitution was to strengthen the power and authority of the United States government; the Bill of Rights was intended to constrain that power.  In this sense, the purpose of the Declaration of Independence and Bill of Rights are uniquely similar to one another.

And just to make sure that everyone was on the same sheet of music, the founding fathers constructed the Tenth Amendment.

The Tenth Amendment

Among some Americans, the Tenth Amendment is their favorite — and if you listen to their argument, it is because they believe the Tenth Amendment saves the United States and its people from a bully of a federal government.  It does NO such thing.

Passed by Congress in 1789 and ratified in 1791, the Tenth Amendment to the United States Constitution was the last of the group of amendments known collectively as the Bill of Rights.  The Tenth Amendment is brief and to the point.  Here’s what it says: The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In one short sentence, the foundational law of the United States grants to state governments all powers not explicitly delegated to the federal government by the U.S. Constitution.  One would think that such clarity would become the final word.  It wasn’t.

According to the U.S. Library of Congress, congress intended the Tenth Amendment to confirm the understanding of the people (at the time the Constitution was adopted) that powers NOT granted to the United States were reserved to the States or to the people.  It added nothing to the U.S. Constitution or the Bill of Rights as originally ratified.[3]

The Tenth Amendment states a truism: that nothing which was retained by the states was surrendered to the federal government.  There is nothing in the history of its adoption to suggest that the amendment was anything more than a (simple) clarification of the relationship between the central government and several states as that relationship existed before the U.S. Constitution and the Bill of Rights — or that its purpose was other than to “allay fears” that the new national government might seek to exercise powers not granted to it, or that the states might not be able to fully exercise their reserved powers.[4]

We can attest to the truth of the preceding information — that the Tenth Amendment was never conceived as a yardstick for measuring federal powers because both Houses of Congress refused to insert the word “expressly” before the word “delegated.”[5]  James Madison himself confirmed the matter during the debate while the proposed amendment was pending as Alexander Hamilton proposed the establishment of a national bank.

In the minds of these early founders, if a(n) (enumerated) power was not given to Congress, then Congress could not exercise it.[6]  EXCEPT that members of congress are nearly all lawyers, and they use words for a living, and they are in league with the United States Supreme Court.  One further admonition about words: the Constitution of the United States means what the Supreme Court says that it means.  What you and I think doesn’t matter.

Case Law

Shortly after the inauguration of George Washington as our first president in 1789, his Treasury Secretary, Alexander Hamilton, proposed a plan to create a national bank.  The idea was controversial from the start.  Thomas Jefferson, at the time serving as Secretary of State, feared that having a central bank to regulate American currency would infringe on states’ rights.  Jefferson noted that the Constitution did not give Congress any power to create corporations — which is how banks are organized.

Congress, however, decided to give Hamilton’s idea a try and created the First Bank of the United States with a 20-year charter.  Subsequently, Congress allowed the charter to lapse in 1811.  A year later, the United States encountered significant economic problems relating to the War of 1812, which prompted Congress to create the Second Bank of the United States in 1816.

Some states went so far as to pass laws to try and undermine the national bank’s operations.  Other states, like Maryland, decided to impose a tax on the federal bank.  In 1818, Maryland’s state legislature passed a $15,000 annual tax on any bank operating within the state that was not charted by the state government.  The only bank that fit that description was The Second Bank of the United States.

Mr. James W. McCulloch, manager of the national bank’s Baltimore office, refused to pay the tax — so the matter went to court.  In court, the state of Maryland argued that because the Constitution was “silent on the subject of banks,” the federal government was not authorized to create one.  But when the federal government appealed the case, the Supreme Court disagreed.

The Argument: Enumerated vs. Implied Powers

In Constitutional Law, experts speak of government power in terms of what is specifically outlined in the Constitution (enumerated) and what isn’t (implied).  As an example of enumerated powers, Article I, Section 8 of the U.S. Constitution permits the federal government to: 

• Collect taxes
• Regulate foreign and domestic commerce
• Coin money
• Declare war
• Support the army and navy
• Establish lower federal courts

But Congress can do many other things — which are the “implied” powers.  Congress can do this because of the so-called necessary and proper clause.  In other words, there may not be an enumerated power for Congress to do a certain thing, but for Congress to perform its enumerated powers, other acts of Congress may be “necessary and proper.”  Such necessary and proper powers are “implied,” which the Supreme Court has held to be lawful.

This case involved McCulloch v. Maryland (17 U.S. 316 (1819)).  Since McCulloch, Congress has used the “necessary and proper” clause to pass laws in many different areas.  The Supreme Court upheld these implied actions in such areas as:

• Gun control laws
• Federal minimum wage
• Income taxes
• Military draft
• Regulation of alcohol and narcotics
• Protecting disabled individuals
• Immigration

Some argue this goes against the Constitution’s 10th Amendment, which states that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

But, in deciding McCulloch, the Supreme Court had to answer two questions: (1) Did Congress have the power to establish a national bank, and (2) Did Maryland’s law taxing the bank unconstitutionally interfere with Congress’s power?  The court’s decision was unanimous. In his majority opinion, Chief Justice John Marshall asserted that the Constitution grants Congress the power to make “all laws necessary and proper” for carrying out the capabilities outlined in Article I, Section 8.  

John Marshall was a proponent of strong centralized government power, and he defined the word “necessary” to mean anything appropriate and legitimate.  This ruling gave Congress broad authority to carry out its constitutional duty, so long as its actions were logically tied to one of its enumerated powers.

The Constitution said nothing about the federal government establishing a bank, but because establishing a bank would help the Congress to carry out its other duties, such as collecting taxes and maintaining an armed force, then establishing a bank was “necessary and proper” — and implied.  Chief Justice Marshall went one step further: he concluded that Article VI establishes the Constitution as the “supreme law of the land,” which means that states have no power to interfere with federal law.  Maryland’s tax on the national bank was, therefore, unconstitutional.

The Impact of McCulloch v. Maryland

This case had a profound effect on cases involving state vs. federal power.  The doctrine of implied powers created by the court became a powerful tool for the federal government to become the bully it has become.  In particular, McCulloch established, once and for all, that when state and federal laws are in conflict, the federal law always wins. McCulloch also paved the way for what some call the “administrative state” (also, deep state, swamp, etc.), a form of government that employs an extensive professional class to oversee government, the economy, and society — essentially, the federal regulators who oversee many aspects of American life, including environmental agencies and labor regulators.  Without the McCulloch decision, many federal agencies and their onerous (business-busting) regulations might not exist.  And, without McCulloch, the land of the free and home of the brave might actually still belong to the American people.

Endnotes:

[1] U.S. v. Cruikshank (1876).

[2] On 26 June 2008, the Supreme Court issued a decision in District of Columbia v. Heller, holding 5-4 that the Second Amendment protects an individual’s right to possess a firearm unconnected to service in a militia and protects the right to use that firearm for traditionally lawful purposes, such as self-defense.  In McDonald v. City of Chicago, 2010, the Supreme Court found that the right of an individual to keep and bear arms is protected under the Second Amendment and is incorporated by the due process clause of the Fourteenth Amendment.

[3] U.S. v. Sprague, 282 U.S. 716, 733 (1931)

[4] U.S. v. Darby, 312 U.S. 100, 124 (1941)

[5] Annals of Congress, 767 – 68 (1791).  Note that an annal of congress, which forms part of the Debates and Proceedings of Congress covers the 1st Congress through the 18th Congress of the United States (1789 – 1824).

[6] 2 Annals of Congress 1897 (1791).

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