McCulloch V. Maryland (1819): Implied Power, 10th Amendment

• Congress passed legislation in 1816 to create a Bank of the US, a power not expressly granted in the Constitution. One issue, therefore, was whether an IMPLIED POWER existed. In 1818 Maryland passed legislation to impose a tax on all banks in the state not chartered by the legislature.

• Majority: MARSHALL: It was impossible (as under Articles of Confederation) to confine a government to the exercise of express powers for there “must necessarily be admitted powers by IMPLICATION, unless the Constitution descended to recount every minutiae.” Marshall relied on this LEGISLATIVE HISTORY when he upheld the power of Congress to establish a national bank, even though such power is not expressly included in the Constitution. Marshall also rejected the argument that the words “Necessary and proper” in the 10^th A. serves as a limit to the federal government’s power, and the Maryland tax was ruled unconstitutional. This endorsement of INCIDENTAL or IMPLIED POWERS signaled a major advance for both National and Congressional powers.

Us Term Limits V. Thornton (1995): 10th Amendment, Term Limits

• Arkansas voters amended the state constitution to apply term limits to federal offices. The Court overturns the statute.

• Majority: STEVENS: States only have powers they had pre-Constitution, and that the framers intended the Constitution to be the exclusive source of qualifications for members of Congress

• Concurring: KENNEDY: Federal and State Governments must BOTH be protected from each other (contrary to McCulloch), but the term limits for federal office by state laws steps over the line

• Dissent: THOMAS, REHNQUIST, O’CONNOR, SCALIA: “The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole. This suggests that because the federal government is a creature of State agreement, its powers are narrowly limited to those enumerated in the Constitution.

Gibbons V. Ogden (1824): Commerce Clause, Federal V. States

• Boats of other states had to pay for a NY license, which started commercial warfare between states similar to that prior to Constitution. Was the power to require licenses for state within power of states, or did it infringe upon COMMERCE power given to Congress?

• Majority: MARSHALL: The state license requirements violated the previously dormant “commerce clause” of Constitution. “When a State proceeds to regulate commerce with foreign nations or other states, it is exercising a power that is granted to Congress, and is doing the very thing Congress is authorized to do. There is no analogy, then, between the power of taxation, and the power of regulating commerce”

• This decision by Marshall is significant for three reasons. First, although Marshall was a strong defender of private property and contractual rights, he advanced a broad interpretation of the power of congress to regulate commerce. Commerce was more than discreet transactions. Commerce was intercourse. Congress had the power to regulate economic life in the nation to promote the FREE FLOW of INTERSTATE commerce, including actions WITHIN state borders that interfered with the flow. Second, his decision averted potential economic warfare among the states, which would have revived the destructive practices of before the Constitution. Third, the decision represents one of the most articulate rebuttals of “STRICT CONSTRUCTIONISM.”