Speaking for a unanimous Supreme Court, Chief JUSTICE JOHN MARSHALL delivered an opinion upon which posterity has heaped lavish encomiums. JAMES BRADLEY THAYER thought "there is nothing so fine as the opinion in McCulloch v. Maryland. " ALBERT BEVERIDGE placed it "among the very first of the greatest judicial utterances of all time," while William Draper Lewis described it as "perhaps the most celebrated judicial utterance in the annals of the English speaking world." Such estimates spring from the fact that Marshall's vision of nationalism in time became a reality, to some extent because of his vision. Beveridge was not quite wrong in saying that the McCulloch opinion "so decisively influenced the growth of the Nation that, by many, it is considered as only second in importance to the Constitution itself." On the other hand, Marshall the judicial statesman engaged in a judicial coup, as his panegyrical biographer understood. To appreciate Marshall's achievement in McCulloch and the intense opposition that his opinion engendered in its time, one must also bear in mind that however orthodox his assumptions and doctrines are in the twentieth century, they were in their time unorthodox. With good reason Beveridge spoke of Marshall's "sublime audacity," the "extreme radicalism" of his constitutional theories, and the fact that he "rewrote the fundamental law of the Nation," a proposition to which Beveridge added that it would be more accurate to state that he made of the written instrument "a living thing, capable of growth, capable of keeping pace with the advancement of the American people and ministering to their changing necessities."
The hysterical denunciations of the McCulloch opinion by the aged and crabbed THOMAS JEFFERSON, by the frenetically embittered SPENCER ROANE, and by that caustic apostle of localism, JOHN TAYLOR, may justly be discounted, but not the judgment of the cool and prudent "Father of the Constitution," JAMES MADISON. On receiving Roane's "Hampden" essays assaulting McCulloch, Madison ignored the threat of state nullification and the repudiation of JUDICIAL REVIEW, but he agreed with Roane that the Court's opinion tended, in Madison's words, "to convert a limited into an unlimited Government." Madison deplored Marshall's "latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned." Few if any of the friends of the Constitution, declared Madison, anticipated "a rule of construction ? as broad as pliant as what has occurred," and he added that the Constitution would probably not have been ratified if the powers that Marshall claimed for the national government had been known in 1788?1789. Madison's opinion suggests how far Marshall and the Court had departed from the intentions of the Framers and makes understandable the onslaught that McCulloch provoked. Although much of that onslaught was a genuine concern for the prostration of STATES ' RIGHTS before a consolidating nationalism, Taylor hit the nail on the head for the older generation of Jeffersonians when he wrote that McCulloch reared "a monied interest."
The case, after all, was decided in the midst of a depression popularly thought to have been caused by the Bank of the United States, a private corporation chartered by Congress; and McCulloch was a decision in favor of the hated bank and against the power of a state to tax its branch operations. The constitutionality of the power of Congress to charter a bank had been ably debated in Congress...