Devoir de Philosophie

From McCulloch v.

Publié le 26/05/2013

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From McCulloch v. Maryland McCulloch v. Maryland (1819) was one of the most important cases in United States history because it helped establish how powers are distributed between the federal government and the states. The case arose when the state of Maryland attempted to impose a tax on the Bank of the United States. Critics of the bank argued that the Constitution of the United States did not specifically grant Congress the power to charter a bank. In striking down the Maryland tax by a vote of 7 to 0, the court decided two issues. First, Chief Justice John Marshall's opinion concluded that the bank was legitimate because it was chartered under the constitutional clause empowering Congress to enact laws that are "necessary and proper" for governing the country. Second, Marshall ruled that the Maryland tax violated the"supremacy clause" of the Constitution's Article VI, which provides that federal law takes precedence over state law. From McCulloch v. Maryland Marshall, Chief Justice, delivered the opinion of the Court. In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State. The Constitution of our country, in its most interesting and vital parts, is to be considered, the conflicting powers of the Government of the Union and of its members, as marked in that Constitution, are to be discussed, and an opinion given which may essentially influence the great operations of the Government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps, of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the Constitution of our country devolved this important duty. The first question made in the cause is--has Congress power to incorporate a bank? It has been truly said that this can scarcely be considered as an open question entirely unprejudiced by the former proceedings of the Nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the Judicial Department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied that a bold and daring usurpation might be resisted after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted, if not put at rest by the practice of the Government, ought to receive a considerable impression from that practice. An exposition of the Constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. The power now contested was exercised by the first Congress elected under the present Constitution. The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted to expire, but a short experience of the embarrassments to which the refusal to revive it exposed the Government convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation to which the Constitution gave no countenance. These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the Constitution. In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion. It would be difficult to sustain this proposition. The convention which framed the Constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might "be submitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject--by assembling in convention. It is true, they assembled in their several States--and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is 'ordained and established' in the name of the people, and is declared to be ordained, "in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity." The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. It has been said that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But surely the question whether they may resume and modify the powers granted to Government does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league such as was the Confederation, the State sovereignties were certainly competent. But when, 'in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective Government, possessing great and sovereign powers and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The Government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a Government of the people. In form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required...

« our system shall exist.

In discussing these questions, the conflicting powers of the General and State Governments must be brought into view, and the supremacy oftheir respective laws, when they are in opposition, must be settled. If any one proposition could command the universal assent of mankind, we might expect it would be this—that the Government of the Union, though limited in itspowers, is supreme within its sphere of action.

This would seem to result necessarily from its nature.

It is the Government of all; its powers are delegated by all; itrepresents all, and acts for all.

Though any one State may be willing to control its operations, no State is willing to allow others to control them.

The nation, on thosesubjects on which it can act, must necessarily bind its component parts.

But this question is not left to mere reason; the people have, in express terms, decided it bysaying, 'this Constitution, and the laws of the United States, which shall be made in pursuance thereof,' 'shall be the supreme law of the land,' and by requiring thatthe members of the State legislatures and the officers of the executive and judicial departments of the States shall take the oath of fidelity to it.

The Government ofthe United States, then, though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form the supreme law of the land,'anything in the Constitution or laws of any State to the contrary notwithstanding.' Among the enumerated powers, we do not find that of establishing a bank or creating a corporation.

But there is no phrase in the instrument which, like the Articlesof Confederation, excludes incidental or implied powers and which requires that everything granted shall be expressly and minutely described.

Even the 10thAmendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only that thepowers 'not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people,' thus leaving the question whether the particularpower which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the wholeinstrument.

The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles ofConfederation, and probably omitted it to avoid those embarrassments.

A Constitution, to contain an accurate detail of all the subdivisions of which its great powerswill admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by thehuman mind.

It would probably never be understood by the public.

Its nature, therefore, requires that only its great outlines should be marked, its important objectsdesignated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.

That this idea was entertained by theframers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language.

Why else were some of the limitations foundin the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent itsreceiving a fair and just interpretation.

In considering this question, then, we must never forget that it is a Constitution we are expounding. Although, among the enumerated powers of Government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; toborrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.

The sword and the purse, all the external relations,and no inconsiderable portion of the industry of the nation are intrusted to its Government.

It can never be pretended that these vast powers draw after them others ofinferior importance merely because they are inferior.

Such an idea can never be advanced.

But it may with great reason be contended that a Government intrustedwith such ample powers, on the due execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted with ample means fortheir execution.

The power being given, it is the interest of the Nation to facilitate its execution.

It can never be their interest, and cannot be presumed to have beentheir intention, to clog and embarrass its execution by withholding the most appropriate means.

Throughout this vast republic, from the St.

Croix to the Gulf ofMexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported.

The exigencies of the Nation may requirethat the treasure raised in the north should be transported to the south that raised in the east, conveyed to the west, or that this order should be reversed.

Is thatconstruction of the Constitution to be preferred which would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless thewords imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding theirexercise, by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess toenumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential,to the beneficial exercise of those powers.

It is, then, the subject of fair inquiry how far such means may be employed. It is not denied that the powers given to the Government imply the ordinary means of execution.

That, for example, of raising revenue and applying it to nationalpurposes is admitted to imply the power of conveying money from place to place as the exigencies of the Nation may require, and of employing the usual means ofconveyance.

But it is denied that the Government has its choice of means, or that it may employ the most convenient means if, to employ them, it be necessary toerect a corporation.

On what foundation does this argument rest? On this alone: the power of creating a corporation is one appertaining to sovereignty, and is notexpressly conferred on Congress.

This is true.

But all legislative powers appertain to sovereignty.

The original power of giving the law on any subject whatever is asovereign power, and if the Government of the Union is restrained from creating a corporation as a means for performing its functions, on the single reason that thecreation of a corporation is an act of sovereignty, if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority ofCongress to pass other laws for the accomplishment of the same objects.

The Government which has a right to do an act and has imposed on it the duty of performingthat act must, according to the dictates of reason, be allowed to select the means, and those who contend that it may not select any appropriate means that oneparticular mode of effecting the object is excepted take upon themselves the burden of establishing that exception. The creation of a corporation, it is said, appertains to sovereignty.

This is admitted.

But to what portion of sovereignty does it appertain? Does it belong to one morethan to another? In America, the powers of sovereignty are divided between the Government of the Union and those of the States.

They are each sovereign withrespect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.

We cannot comprehend that train of reasoning, whichwould maintain that the extent of power granted by the people is to be ascertained not by the nature and terms of the grant, but by its date.

Some State Constitutionswere formed before, some since, that of the United States.

We cannot believe that their relation to each other is in any degree dependent upon this circumstance.Their respective powers must, we think, be precisely the same as if they had been formed at the same time.

Had they been formed at the same time, and had thepeople conferred on the General Government the power contained in the Constitution, and on the States the whole residuum of power, would it have been assertedthat the Government of the Union was not sovereign, with respect to those objects which were intrusted to it, in relation to which its laws were declared to besupreme? If this could not have been asserted, we cannot well comprehend the process of reasoning which maintains that a power appertaining to sovereignty cannotbe connected with that vast portion of it which is granted to the General Government, so far as it is calculated to subserve the legitimate objects of that Government.The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war or levying taxes or of regulating commerce, a greatsubstantive and independent power which cannot be implied as incidental to other powers or used as a means of executing them.

It is never the end for which otherpowers are exercised, but a means by which other objects are accomplished.

No contributions are made to charity for the sake of an incorporation, but a corporationis created to administer the charity; no seminary of learning is instituted in order to be incorporated, but the corporate character is conferred to subserve the purposesof education.

No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed.

The power ofcreating a corporation is never used for its own sake, but for the purpose of effecting something else.

No sufficient reason is therefore perceived why it may not passas incidental to those powers which are expressly given if it be a direct mode of executing them. But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on theGovernment to general reasoning.

To its enumeration of powers is added that of making “all laws which shall be necessary and proper for carrying into execution theforegoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department thereof.” The counsel for the State ofMaryland have urged various arguments to prove that this clause, though in terms a grant of power, is not so in effect, but is really restrictive of the general rightwhich might otherwise be implied of selecting means for executing the enumerated powers.

In support of this proposition, they have found it necessary to contendthat this clause was inserted for the purpose of conferring on Congress the power of making laws.

That, without it, doubts might be entertained whether Congresscould exercise its powers in the form of legislation.… But the argument on which most reliance is placed is drawn from that peculiar language of this clause.

Congress is not empowered by it to make all laws which mayhave relation to the powers conferred on the Government, but such only as may be 'necessary and proper' for carrying them into execution.

The word 'necessary' is. »

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