irst opportunity to elaborate the tenets of his
nationalistic creed in the case of M'Culloch vs. Maryland, which was
decided at the same term with the Dartmouth College case and that of
Sturges vs. Crowinshield--the greatest six weeks in the history of
the Court. The question immediately involved was whether the State of
Maryland had the right to tax the notes issued by the branch which the
Bank of the United States had recently established at Baltimore. But
this question raised the further one whether the United States had in
the first place the right to charter the Bank and to authorize it
to establish branches within the States. The outcome turned on the
interpretation to be given the "necessary and proper" clause of the
Constitution.

The last two questions were in 1819 by no means novel. In the
"Federalist" itself Hamilton had boldly asked, "Who is to judge of
the necessity and propriety of the laws to be passed for executing the
powers of the Union?" and had announced that "the National Government,
like every other, must judge in the first instance, of the proper
exercise of its powers, and its constituents in the last," a view which
seems hardly to leave room even for judicial control. Three years later
as Secretary of the Treasury, Hamilton had brought forward the proposal
which soon led to the chartering of the Bank of 1791. The measure
precipitated the first great discussion over the interpretation of
the new Constitution. Hamilton owned that Congress had no specifically
granted power to charter a bank but contended that such an institution
was a "necessary and proper" means for carrying out certain of the
enumerated powers of the National Government such, for instance,
as borrowing money and issuing a currency. For, said he in effect,
"necessary and proper" signify "convenient," and the clause was intended
to indicate that the National Government should enjoy a wide range of
choice in the selection of means for carrying out its enumerated powers.
Jefferson, on the other hand, maintained that the "necessary and proper"
clause was a restrictive clause, meant to safeguard the rights of the
States, that a law in order to be "necessary and proper" must be both
"necessary" AND "proper," and that both terms ought to be construed
narrowly. Jefferson's opposition, however, proved unavailing, and the
banking institution which was created continued till 1811 without its
validity being once tested in the courts.

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