Much has been written about the decision in McCulloch v. Maryland, as though it was a given, not subject to question, but there is a problem analyzing a decision and opinion that were wrongly argued, wrongly decided, and wrongly opined. Trying to do that is just an exercise in rearranging the garbage. The first step should be to present the way it should have been argued, decided, and opined, and then draw comparisons with that to the actual case.
First, it is not unconstitutional for the U.S. government to
recognize a corporation created by private parties within the
District of Columbia, where it has the legislative jurisdiction of a
state, as a variety of common law trust, and even to grant it a
monopoly on the use of its name. That is not "creation" unless the
government is one of the incorporators..
Second, it is not unconstitutional for the U.S. government to enter
into a contract with a private bank to receive, hold, and disburse
public funds. There is a problem if the contract is not the result
of competitive bidding. There is also a potential problem if bank
officials exercise governmental functions that are not under a chain
of command leading up to an elected official. Executive powers may
be delegated but not without supervision of their exercise by the
executive branch and the courts.
Third, it would be unconstitutional to forbid a corporation
incorporated in one state or territory from conducting business
operations in another state or territory, subject only to reasonable
regulations or taxes that do not discriminate against out-of-state
entities. So the National Bank was certainly within its rights to
conduct business in Maryland, and be treated there like a Maryland
Fourth, it would be unconstitutional for Maryland to tax that part
of the National Bank that involves the handling of public funds, but
not the part that is entirely private. Maryland could reasonably
require the Bank to keep accurate books that keep the two sides of
its business separated and separately subject to taxation or
The decision should have been that Maryland may tax the National
Bank on its private business on the same basis as it would a
Maryland bank, but not on its public business.
All the dictum about "necessary" being merely "convenient" and
everything else not needed to reach the above decision should have
Constitutional education, history, commentary, reform, compliance, and interpretation.
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