If we regard at once the greatness of the questions at issue in the particular case, the influence of the opinion, and the large method and clear and skillful manner in which it is worked out, there is nothing so fine as the opinion in McCulloch _v._ Maryland, given at the February term, 1819. The questions were, first, whether the United States could constitutionally incorporate a bank; and, second, if it could, whether a State might tax the operations of the bank; as, in this instance, by requiring it to use stamped paper for its notes. The bank was sustained and the tax condemned.
In working this out, it was laid down that while the United States is merely a government of enumerated powers, and these do not in terms include the granting of an incorporation, yet it is a government whose powers, though limited in number, are in general supreme, and also adequate to the great national purposes for which they are given; that these great purposes carry with them the power of adopting such means, not prohibited by the Constitution, as are fairly conducive to the end; and that incorporating a bank is not forbidden, and is useful for several ends. Further, the paramount relation of the national government, whose valid laws the Constitution makes the supreme law of the land, forbids the States to tax, or to “retard, impede, burden, or in any way control” the operations of the government in any of its instrumentalities.
This was the opinion of a unanimous court, in which five out of the seven judges had been nominated by a Republican President. But it caused great excitement at the South. On March 24, 1819, Marshall wrote from Richmond to Judge Story: “Our opinion in the bank case has roused the sleeping spirit of Virginia, if indeed it ever sleeps. It will, I understand, be attacked in the papers with some asperity, and as those who favor it never write for the public it will remain undefended, and of course be considered as _damnably heretical_.” Again, two months later, “The opinion in the bank case continues to be denounced by the Democracy of Virginia.... If the principles which have been advanced on this occasion were to prevail the Constitution would be converted into the old Confederation.”