Mr. Chief Justice Marshall 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, ensure 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...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 to be
enforced by all those arguments which its enlightened friends, while it was depending before the
people, found it necessary to urge. That principle is now universally admitted. But the question
respecting the extent of the powers actually granted, is perpetually arising, and will probably
continue to arise, as long as our system shall exist...
The government of the United States...though limited in its powers, is supreme; and its laws,
when made in pursuance of the Constitution, form the supreme law of the land, "any thing 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 Articles of Confederation,
excludes incidental or implied powers; and which requires that everything granted shall be
expressly and minutely described. Even the 10th amendment, which was framed for the purpose
of quieting the excessive jealousies which had been excited, omits the word "expressly," and
declares only that the powers "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 particular power
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 whole instrument. The men who drew and
adopted this amendment had experienced the embarrassments resulting from the insertion of this
word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A
constitution, to contain an accurate detail of all the subdivisions of which its great powers will
admit, and of all the means by which they may be carried into execution, would partake of the
prolixity of the legal code, and could scarcely be embraced by the human mind. It would probably
never be understood by the public. Its nature, therefore, requires, that only its great outlines
should be marked, its important objects designated, and the minor ingredients which compose
those objects be deduced from the nature of the objects themselves. That this idea was entertained
by the framers 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, found in the ninth
section of the 1st article, introduced?
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; to borrow 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 entrusted to its government. It can never be pretended that these vast powers draw
after them others of inferior importance, merely because they are inferior. Such an idea can never
be advanced. But it may with great reason be contended, that a government, entrusted with such
ample powers, on the due execution of which the happiness and prosperity of the nation so vitally
depends, must also be entrusted with ample means for their 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 been their intention, to clog and embarrass its execution by withholding the
most appropriate means.... The exigencies of the nation may require that 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 that construction of the Constitution to be preferred which would
render these operations difficult, hazardous, and expensive? Can we adopt that construction,
(unless the words imperiously require it,) which would impute to the framers of that instrument,
when granting these powers for the public good, the intention of impeding their exercise 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 to enumerate 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 national purposes, 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 of conveyance. 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 to erect 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 not expressly conferred on Congress. This is true. But
all legislative powers appertain to sovereignty. The original power of giving the law on any
subject whatsoever, is a sovereign 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 the
creation 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 of Congress to pass
other laws for the accomplishment of the same objects...
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 more than 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, with respect 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
which would 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 constitutions were 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 the people conferred on the general government the power contained in the Constitution, and
on the States the whole residuum of power, would it have been asserted that the government of
the Union was not sovereign with respect to those objects which were entrusted to it, in relation
to which its laws were declared to be supreme? If this could not have been asserted, we cannot
well comprehend the process of reasoning which maintains, that a power appertaining to
sovereignty cannot be connected with the 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 great substantive 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 other powers 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 corporation is 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 purposes of
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...
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 the government, 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 the foregoing 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 of Maryland 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 right,
which might otherwise be implied, of selecting means for executing the enumerated powers.
In support of this proposition, they have found it necessary to contend, that this clause was
inserted for the purpose of conferring on Congress the power of making laws. That, without it,
doubts might be entertained, whether Congress could exercise its powers in the form of
legislation.
But could this be the object for which it was inserted? A government is created by the people,
having legislative, executive, and judicial powers. Its legislative powers are vested in a Congress,
which is to consist of a Senate and House of Representatives. Each house may determine the rule
of its proceedings; and it is declared that every bill which shall have passed both houses, shall,
before it becomes a law, be presented to the President of the United States. The 7th section
describes the course of proceedings, by which a bill shall become a law; and, then, the 8th section
enumerates the powers of Congress. Could it be necessary to say, that a legislature should
exercise legislative powers, in the shape of legislation? After allowing each house to prescribe its
own course of proceeding, after describing the manner in which a bill should become a law, would
it have entered into the mind of a single member of the Convention, that an express power to
make laws was necessary to enable the legislature to make them? That a legislature, endowed
with legislative powers, can legislate, is a proposition too self-evident to have been
questioned.
But the argument on which most reliance is placed, is drawn from the peculiar language of this
clause. Congress is not empowered by it to make all laws, which may have 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 considered as controlling the whole sentence, and as
limiting the right to pass laws for the execution of the granted powers, to such as are
indispensable, and without which the power would be nugatory. That it excludes the choice of
means, and leaves to Congress in each case, that only which is most direct and simple.
Is it true, that this is the sense in which the word "necessary" is always used? Does it always
import an absolute physical necessity, so strong, that one thing, to which another may be termed
necessary, cannot exist without that other? We think it does not. If reference be had to its use, in
the common affairs of the world, or in approved authors, we find that it frequently imports no
more than that one thing is convenient, or useful, or essential to another. To employ the means
necessary to an end, is generally understood as employing any means calculated to produce the
end, and not as being confined to those single means, without which the end would be entirely
unattainable. Such is the character of human language, that no word conveys to the mind, in all
situations, one single definite idea; and nothing is more common than to use words in a figurative
sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey
a meaning different from that which is obviously intended. It is essential to just construction, that
many words which import something excessive, should be understood in a more mitigated
sense--in that sense which common usage justifies. The word "necessary" is of this description. It
has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often
connected with other words, which increase or diminish the impression the mind receives of the
urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably
necessary. To no mind would the same idea be conveyed, by these several phrases. This comment
on the word is well illustrated, by the passage cited at the bar, from the 10th section of the 1st
article of the Constitution. It is, we think, impossible to compare the sentence which prohibits a
State from laying "imposts, or duties on imports or exports, except what may be absolutely
necessary for executing its inspection laws," with that which authorizes Congress "to make all
laws which shall be necessary and proper for carrying into execution" the powers of the general
government, without feeling a conviction that the convention understood itself to change
materially the meaning of the word "necessary," by prefixing the word "absolutely." This word,
then, like others, is used in various senses; and, in its construction, the subject, the context, the
intention of the person using them, are all to be taken into view.
Let this be done in the case under consideration. The subject is the execution of those great
powers on which the welfare of a nation essentially depends. It must have been the intention of
those who gave these powers, to insure, as far as human prudence could insure, their beneficial
execution. This could not be done by confiding the choice of means to such narrow limits as not
to leave it in the power of Congress to adopt any which might be appropriate, and which were
conducive to the end. This provision is made in a constitution intended to endure for ages to
come, and consequently, to be adapted to the various crises of human affairs. To have prescribed
the means by which government should, in all future time, execute its powers, would have been to
change, entirely, the character of the instrument, and give it the properties of a legal code. It
would have been an unwise attempt to provide, by immutable rules, for exigencies which, if
foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To
have declared that the best means shall not be used, but those alone without which the power
given would be nugatory, would have been to deprive the legislature of the capacity to avail itself
of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we
apply this principle of construction to any of the powers of the government, we shall find it so
pernicious in its operation that we shall be compelled to discard it. The powers vested in Congress
may certainly be carried into execution, without prescribing an oath of office. The power to exact
this security for the faithful performance of duty, is not given, nor is it indispensably necessary.
The different departments may be established; taxes may be imposed and collected; armies and
navies may be raised and maintained; and money may be borrowed, without requiring an oath of
office. It might be argued, with as much plausibility as other incidental powers have been assailed,
that the Convention was not unmindful of this subject. The oath which might be exacted "that of
fidelity to the Constitution" is prescribed, and no other can be required. Yet, he would be charged
with insanity who should contend, that the legislature might not superadd, to the oath directed by
the Constitution such other oath of office as its wisdom might suggest.
So, with respect to the whole penal code of the United States: whence arises the power to punish
in cases not prescribed by the Constitution? All admit that the government may, legitimately,
punish any violation of its laws; and yet, this is not among the enumerated powers of Congress.
The right to enforce the observance of law, by punishing its infraction, might be denied with the
more plausibility, because it is expressly given in some cases. Congress is empowered "to provide
for the punishment of counterfeiting the securities and current coin of the United States," and
"define and punish piracies and felonies committed on the high seas, and offences against the law
of nations." The several powers of Congress may exist, in a very imperfect state to be sure, but
they may exist and be carried into execution, although no punishment should be inflicted in cases
where the right to punish is not expressly given...
The baneful influence of this narrow construction on all the operations of the government, and the
absolute impracticability of maintaining it without rendering the government incompetent to its
great objects, might be illustrated by numerous examples drawn from the Constitution, and from
our laws. The good sense of the public has pronounced, without hesitation, that the power of
punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to
act, as incidental to his constitutional powers. It is a means for carrying into execution all
sovereign powers, and may be used, although not indispensably necessary. It is a right incidental
to the power, and conducive to its beneficial exercise.
If this limited construction of the word "necessary" must be abandoned in order to punish, whence
is derived the rule which would reinstate it, when the government would carry its powers into
execution by means not vindictive to their nature? If the word "necessary" means "needful,"
"requisite," "essential," "conducive to," in order to let in the power of punishment for the
infraction of law; why is it not equally comprehensive when required to authorize the use of
means which facilitate the execution of the powers of government without the infliction of
punishment?
In ascertaining the sense in which the word "necessary" is used in this clause of the Constitution,
we may derive some aid from that with which it is associated. Congress shall have power "to
make all laws which shall be necessary and proper to carry into execution" the powers of the
government. If the word "necessary" was used in that strict and rigorous sense for which the
counsel for the State of Maryland contend, it would be an extraordinary departure from the usual
course of the human mind, as exhibited in composition, to add a word, the only possible effect of
which is to qualify that strict and rigorous meaning; to present to the mind the idea of some
choice of means of legislation not straitened and compressed within the narrow limits for which
gentlemen contend.
But the argument which most conclusively demonstrates the error of the construction contended
for by the counsel for the State of Maryland, is founded on the intention of the Convention, as
manifested in the whole clause. To waste time and argument in proving that, without it, Congress
might carry its powers into execution, would be not much less idle than to hold a lighted taper to
the sun. As little can it be required to prove, that in the absence of this clause, Congress would
have some choice of means. That it might employ those which, in its judgment, would most
advantageously effect the object to be accomplished. That any means adapted to the end, any
means which tended directly to the execution of the constitutional powers of the government,
were in themselves constitutional. This clause, as construed by the State of Maryland, would
abridge, and almost annihilate this useful and necessary right of the legislature to select its means.
That this could not be intended, is, we should think, had it not been already controverted, too
apparent for controversy...
We admit, as all must admit, that the powers of the government are limited, and that its limits are
not to be transcended. But we think the sound construction of the Constitution must allow to the
national legislature that discretion, with respect to the means by which the powers it confers are
to be carried into execution, which will enable that body to perform the high duties assigned to it,
in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of
the Constitution, and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the Constitution, are
constitutional.
That a corporation must be considered as a means not less usual, not of higher dignity, not more
requiring a particular specification than other means, has been sufficiently proved. If we look to
the origin of corporations, to the manner in which they have been framed in that government from
which we have derived most of our legal principles and ideas, or to the uses to which they have
been applied, we find no reason to suppose that a constitution, omitting, and wisely omitting, to
enumerate all the means for carrying into execution the great powers vested in government, ought
to have specified this. Had it been intended to grant this power as one which should be distinct
and independent, to be exercised in any case whatever, it would have found a place among the
enumerated powers of the government. But being considered merely as a means, to be employed
only for the purpose of carrying into execution the given powers, there could be no motive for
particularly mentioning it.
The propriety of this remark would seem to be generally acknowledged by the universal
acquiescence in the construction which has been uniformly put on the 3rd section of the 4th article
of the Constitution. The power to "make all needful rules and regulations respecting the territory
or other property belonging to the United States," is not more comprehensive, than the power "to
make all laws which shall be necessary and proper for carrying into execution" the powers of the
government. Yet all admit the constitutionality of a territorial government, which is a corporate
body. If a corporation may be employed indiscriminately with other means to carry into execution
the powers of the government, no particular reason can be assigned for excluding the use of a
bank, if required for its fiscal operations. To use one, must be within the discretion of Congress, if
it be an appropriate mode of executing the powers of government. That it is a convenient, a
useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of
controversy. All those who have been concerned in the administration of our finances, have
concurred in representing its importance and necessity; and so strongly have they been felt, that
statesmen of the first class, whose previous opinions against it had been confirmed by every
circumstance which can fix the human judgment, have yielded those opinions to the exigencies of
the nation. Under the confederation, Congress, justifying the measure by its necessity, transcended
perhaps its powers to obtain the advantage of a bank; and our own legislation attests the universal
conviction of the utility of this measure. The time has passed away when it can be necessary to
enter into any discussion in order to prove the importance of this instrument, as a means to effect
the legitimate objects of the government.
But, were its necessity less apparent, none can deny its being an appropriate measure; and if it is,
the degree of its necessity, as has been very justly observed, is to be discussed in another place.
Should Congress, in the execution of its powers, adopt measures which are prohibited by the
Constitution; or should Congress, under the pretext of executing its powers, pass laws for the
accomplishment of objects not entrusted to the government; it would become the painful duty of
this tribunal, should a case requiring such a decision come before it, to say that such an act was
not the law of the land. But where the law is not prohibited, and is really calculated to effect any
of the objects entrusted to the government, to undertake here to inquire into the degree of its
necessity, would be to pass the line which circumscribes the judicial department, and to tread on
legislative ground. This court disclaims all pretensions to such a power...
After the most deliberate consideration, it is the unanimous and decided opinion of this Court,
that the act to incorporate the Bank of the United States is a law made in pursuance of the
Constitution, and is a part of the supreme law of the land...
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