The constitutional government of this republican empire cannot be practically enforced but by a fair and liberal interpretation of its powers. (William Pinkney.)
The Judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. (Jefferson.)
The government of the Union is emphatically and truly a government of the people. In form and substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. (Marshall.)
Although it was the third of the great causes to be decided by the Supreme Court in the memorable year, 1819, M'Culloch vs. Maryland was the first in importance and in the place it holds in the development of the American Constitution. Furthermore, in his opinion in this case John Marshall rose to the loftiest heights of judicial statesmanship. If his fame rested solely on this one effort, it would be secure.
To comprehend the full import of Marshall's opinion in this case, the reader must consider the state of the country as described in the fourth chapter of this volume. While none of his expositions of our fundamental law, delivered in the critical epoch from 1819 to 1824, can be entirely understood without knowledge of the National conditions that produced them, this fact must be especially borne in mind when reviewing the case of M'Culloch vs. Maryland.
Associate Justices sitting with Marshall in the case of M'Culloch versus Maryland: STORY, JOHNSON, WASHINGTON, DUVAL, LIVINGSTON, TODD
Like most of the controversies in which Marshall's Constitutional opinions were pronounced, M'Culloch vs. Maryland came before the Supreme Court on an agreed case. The facts were that Congress had authorized the incorporation of the second Bank of the United States; that this institution had instituted a branch at Baltimore; that the Legislature of Maryland had passed an act requiring all banks, established "without authority from the state," to issue notes only on stamped paper and only of certain denominations, or, in lieu of these requirements, only upon the payment of an annual tax of fifteen thousand dollars; that, in violation of this law, the Baltimore branch of the National Bank continued to issue its notes on unstamped paper without paying the tax; and that on May 8, 1818, John James, "Treasurer of the Western Shore," had sued James William M'Culloch, the cashier of the Baltimore branch, for the recovery of the penalties prescribed by the Maryland statute.[784]
The immediate question was whether the Maryland law was Constitutional; but the basic issue was the supremacy of the National Government as against the dominance of State Governments. Indeed, the decision of this case involved the very existence of the Constitution as an "ordinance of Nationality," as Marshall so accurately termed it.
At no time in this notable session of the Supreme Court was the basement room, where its sittings were now again held, so thronged with auditors as it was when the argument in M'Culloch vs. Maryland took place. "We have had a crowded audience of ladies and gentlemen," writes Story toward the close of the nine days of discussion. "The hall was full almost to suffocation, and many went away for want of room."[785]