First, the Bank of America problem.
The United States is a federal country, which was established on the basis of "Confederacy". In other words, the "state" as an independent country ranks first, while the unified federation established by the Agreement ranks last. Therefore, the power struggle between the Federation and the States is one of the most important political struggles in the early days of the founding of the United States. The original political parties in the United States are also divided by the camp of this struggle, that is, they advocate strengthening federal power to form a federal party, while opponents form a democratic party. ( 1)
Under this political background, the main judicial confusion of the highest judicial institution is, what is the constitutional basis for strengthening federal power? Marshall's genius and historical contribution are manifested in the process of solving political struggle with judicial rationality around this issue. From the perspective of today's political, economic and social development, the federalist's proposition is undoubtedly correct; But at that time, from the judicial point of view, strengthening the constitutional basis of federal power was indeed the number one legal issue.
In the process of establishing a national bank, the United States has also experienced twists and turns because of the above problems. 1790 12. Finance Minister Hamilton submitted a plan to establish a national bank to Congress. Obviously, a national bank is needed. It can strengthen the federal government, help manage taxes and public finances, and provide loans for the government to repay domestic and foreign debts left over from the war and build interstate infrastructure. Congress approved Hamilton's proposal. When the president signed it, Washington listened carefully to the opinions of both sides for fear of violating the Constitution. To this end, Hamilton made a famous comment on the "constitutionality" of the banking bill. Finally, President Washington signed the bill. The national bank established on this basis is called "the first bank in America" in history.
The first bank was allowed to operate for 20 years. After the expiration, that is, 18 1 1 year, the anti-federalist congress refused to re-authorize. In this way, the first bank died Four years later, due to the economic chaos caused by the war and the irresponsible financial behavior of state banks, Congress voted to establish the national bank again, and Madison, once the fiercest opponent, signed the bill. The second American bank was established in 18 16.
Like the first bank, the second bank is not a pure government agency. Because the government only owns 20% of the shares, and the rest are private investors. As the main financial institution of the government, the National Bank has indeed improved the financial situation of the whole country, but it has also affected the interests of the National Bank and other private investors. In this context, the Maryland legislature promulgated a law on 18 18 to levy an annual tax of 15000 USD on all banks or bank branches in the state that are not established by the state legislature. In fact, the only one eligible for taxation is the branch of the Second Bank of the United States in Baltimore, Maryland. It can be seen that the tax law is aimed at the federal government.
Of course, the second bank won't pay the tax obediently, so Massachusetts sued mcculloch (branch cashier) to the state court, and the court ruled that the latter lost the case and fined 100 USD. Mai refused to accept the appeal and the state court of appeal upheld the original judgment. With the support of the federal government, Mai finally submitted the case to the Supreme Court, and Marshall's opportunity came.
Before we show Marshall's genius and analyze the judicial rationality in this case, let's briefly describe the fate of National Bank of America. Although the second bank received strong support from the Supreme Court because of this case, it actually achieved more remarkable results, but it did not live longer than the first bank. After the 20-year articles of association expired, the second bank ended with 1836. The reason is that 1832, President andrew jackson vetoed the bill passed by the Senate to extend the bank's articles of association. For the next 80 years, there was no national bank in the United States. It was not until Wilson took office in 19 12 that the United States began to formulate the most important financial legislation in history, namely the Federal Reserve Act. In the second year, the legislative procedure was completed, ending the problem of "national bank" in the United States.
Second, the legal issues of this case:
Of course, this case does not study the "banking problem", but only studies whether it is legal to tax the second bank. However, because the establishment of banks by Congress involves a sensitive political struggle, that is, the conflict between state power and federal power, it is very difficult for judicial organs to deal with it. Marshall pointed out meaningfully at the beginning of the judgment: "In this case ... we will consider the key parts of the Constitution and express our opinions on the power conflict between the federal government and the state government marked by the Constitution; It may fundamentally affect the operation of the government. Any court will have a deep sense of responsibility when dealing with such problems. However, this issue must be resolved peacefully, otherwise it will only become the source of hostility between legislatures and may further worsen the situation. If the problem should be solved peacefully, then only this court can make a decision. Our Constitution entrusts this important responsibility to the Supreme Court of the United States. " (See appendix: Zhang Yi's Marshall's Judgment, para. 1, the same below. It is by far the best habit of Americans to "peacefully resolve" political struggles that may "worsen the situation" through justice (although it is often not the case in international affairs). The origin of this habit may be hard to find, but I think its final stereotype is more or less related to Marshall's wisdom and courage. This case is a typical example.
The legal issues in this case should be questioned from the perspective of appeal: the appellant questioned the effectiveness of the relevant tax laws in Massachusetts because he refused to accept the taxes and fines in Massachusetts, and this issue depends on the effectiveness of the federal Banking Law. So this case divides the legal issue into two parts. The first question answers whether the establishment of the National Bank is within the power authorized by the Constitution to be exercised by Congress. The second question answers whether the Massachusetts tax bill is unconstitutional.
The verdict in this case is very rich. In order to answer and demonstrate the above two big questions, in my opinion, this judgment at least involves the following extremely important legal issues, such as:
Sovereignty issues; It also involves whether the American Constitution is an "agreement" between states or the will of all Americans. Do the Federation and the States have their own sovereignty? The right to establish a business (bank) belongs to sovereignty, but it is not a "huge substantive independent power";
The government with limited power and its supremacy within the scope of legal action;
Implicit power, which is the theme of this paper;
Rhetorical interpretation of "necessary and appropriate" clause;
The judiciary has no right to explore the "necessary degree" of the legislature's choice of means to achieve the goal authorized by the constitution;
On the state's taxation power, absolute power;
The relationship between taxation right and voters;
As the "destructive" taxation right in this case, the "original power" never existed, so there is no question of "surrender" and "recovery";
The supreme purpose of the Federation;
Wait a minute.
Obviously, the above problems have long been hotly debated to varying degrees. This case is a lawsuit triggered by taxation, which gives the Supreme Court the first opportunity to conduct judicial review on the above-mentioned major and thorny constitutional issues. Marshall did not stick to the dispute settlement of specific cases, but put forward higher and more universal legal principles from the trial and demonstration of specific cases according to the judicial principles of common law. The legal principles demonstrated and put forward in this case are the famous "implied power" and "federal supremacy".
Third, the logic of Marshall's judgment:
The focus of this paper is to reveal that "implied power" belongs to the product of "judicial rationality". Like "judicial review", "implied power" is not clearly defined in the US Constitution. They all come from the interpretation and reasoning of the constitution by judicial rationality, and the rationality and reliability of their interpretation have been confirmed by historical practice. So far, no one doubts that "judicial review" and "implied power" are part of the US Constitution.
Therefore, it is necessary for us to analyze the reasoning process of this case in detail.
Marshall's judgment on this case is a rare classic model in the history of human justice. The rigor of its argument made it impossible for Paul Blest, the author of a major textbook of American constitutional law, to edit it, because "you will be skeptical about the relationship between any edited version and the original point of view." (3)
Marshall took a very strict attitude in this case, because there was a great constitutional controversy in the banking bill. On the one hand, both sides of the dispute "have the same enthusiasm and ability", on the other hand, the dispute has been "long" for decades. During the trial of this case, six famous lawyers from both sides had a nine-day court debate. It can be seen that the complexity of the problem and the fierce controversy have reached a rare level.
Therefore, Marshall pointed out the history of the dispute from the beginning and thought it was not a "problem to be solved". Because, first, the bank bill was fully debated by Congress, and it was not passed by "crossing the sea"; Second, after the first banking bill expired without extension, "the government was embarrassed" and "this short experience convinced those who were most prejudiced about its necessity" (including President Madison), so the second banking bill was passed again. So, how easy is it to think that Congress is "usurping power" by setting up banks? It takes extraordinary courage. Marshall's intention here is to take the lead.
Then there is the topic, which can be divided into two major issues in the first question mentioned in the judgment: the first is the relationship between the Federation and the state and the so-called sovereignty issue, that is, the highest issue of the Federation; The second is the issue of implied power. The logical requirements are obvious. If the conclusion of the first question is that the federal power is granted by the state, then the second question, that is, the interpretation authorized by the Constitution, is out of the question.
Paragraph 7-1 1 demonstrates that federal power comes from the people. To this end, Marshall reviewed the process of drafting and approving the constitution. A core view of anti-federalism is that the American Federation originates from the states with independent sovereignty, and the power of the Federation is authorized by the agreement of the states, that is, the Constitution. Therefore, the sovereignty issue must be considered first when interpreting the Constitution. The concept of sovereignty generally refers to the highest, absolute and exclusive power of an independent country. The unique founding history of the United States from the confederacy to the Federation constitutes a dispute over whether sovereignty belongs to the state or the Federation, or whether there are two sovereignty at the same time. In this regard, the Federalist's incisive answer is that the sovereignty of the United States comes from the "people."
However, does this "people" refer to the people of this state or the people of the whole United States, without distinction? This issue is still controversial. (4) More interestingly, the preface of the original draft constitution reads: "We people in New Hampshire, Massachusetts, Rhode Island and Sacred Manor (and other 13 founding states) do order, announce and establish the following constitutions or our own and future generations' governments. Later, the above-mentioned "people" was changed to "we American people" by the Rhetoric Committee. (5) The reason for this amendment is unclear. In fact, it did not cause any controversy in the process of adoption and approval. It can be seen that the major principle disputes in specific cases, that is, the major principle disputes in the judiciary, were not foreseen in the legislation, even in such a major legislation.
Marshall believes that the document reached by the representatives of the States at the Constitutional Convention is only a proposal and is not binding. Constitutional documents are delivered to the people through the Constituent Assembly, the National Assembly and state legislatures. Just because the people gather in each state to take action does not mean that the measures taken by the people themselves become the measures of the state government. The people have complete freedom to "accept or reject" constitutional documents, and the people's decision is final and not restricted by the state government; On the contrary, the constitution decided by the people has complete mandatory effect and can bind the sovereignty of each state. The purpose of the Constitution is to establish a "more perfect federation" and transform the former federation into an effective government with great and supreme power. Therefore, this government must come from the people, and the people have every right to withdraw and modify their authorization to the government. (Paragraph 8-10)
The remaining questions about the relationship between the Federation and the States are not complicated, because Chapter VI of the Constitution clearly stipulates the supreme principle of the Federation and does not require complicated judicial reasoning.
From paragraph 16, Marshall began a difficult judicial reasoning to reveal the "implied power" of the Constitution. His thinking is this: what we are explaining is a constitution-the relationship between goal and means-how to explain the necessity and appropriateness of means-the harm of strict interpretation-the interpretation method of the position and wording of constitutional provisions-as long as the purpose is legal, all "appropriate" means are constitutional.
Marshall believes that the constitution does not list the establishment of banks or enterprises in the express congressional power, but the constitution does not exclude the attached or implied power. The nature of the constitution determines that it can only outline a grand outline and stipulate important goals, and the secondary component of these goals, that is, the implied power, can only be inferred according to the nature of the goals themselves. If we think that constitutional rights are only clearly listed, is it necessary to make special restrictions in the ninth section of Chapter I?
It is undeniable that restricting government power is one of the basic functions of the constitution, but this does not mean denying that an effective government has the power to fully choose means in the operation authorized by the constitution. Marshall said: "According to the requirements of rationality, the government with the right to act and the obligation to act must be allowed to choose the means." (para. 100). 20) (6) He properly demonstrated that the power to set up enterprises (banks) is not a substantive independent power, and it has never been used for its own sake, but for other purposes. Therefore, this power is implicit.
According to Section VIII, Section XVIII of Chapter I of the Constitution, the implied legislative power as a means mentioned above is limited to the wording of "necessary and appropriate". So, what is "necessary and appropriate"? Marshall spent a lot of time explaining this point, especially the word "necessary", because lawyers in Massachusetts believe that the word "necessary" controls the whole sentence (paragraph 26). In the eyes of many judges or scholars today, Marshall's complicated explanation of the word "necessary" may be completely unnecessary, which led to a "lengthy" judgment. However, I hope readers will be excited after careful study, because this is not a simple text dispute at all, but a matter of principle related to the constitutional interpretation of the way of governing the country. Imagine, if the "necessity" is strictly explained, can the United States have today? Neither government power nor civil rights can be listed in the constitution.
The views of Massachusetts lawyers are as follows: 1. Although the necessary and appropriate clause is in the eighth part of the authorization, it actually limits the universal right to choose the means to implement the enumerated powers; (Paragraph 23) Secondly, the word "necessary" should be understood as: the right to execute authorization and pass laws is limited to the scope of "essential", without which authorization is meaningless (paragraph 26). Marshall believes that "necessary" should be understood in the usual sense, namely "convenient", "useful" or "basic". He quoted the clause of "absolute necessity" used in section 10 of the first chapter of the Constitution as a strong contrast with "necessity". (para. 100). 27)
Next, Marshall gave several examples to illustrate the harm of strict explanation. It is universally acknowledged that the government has the power to punish those who violate the law, but as a universal power, it is not explicitly listed in the Constitution. It only lists "providing penalties for counterfeiting securities and circulating currency" and "defining and punishing piracy and felony on the high seas, as well as violations of international law". What about unlisted ones? For example, if Congress passes laws to punish mail theft, is it "necessary" for Congress to be authorized to establish post offices and postal channels? Of course, it is not absolutely necessary, because the post office has been established and its power has been exercised; However, criminal punishment is "essential" for the beneficial exercise of the above rights.
Crucially, is there a certain degree of "necessity"? If so, Marshall thinks this is not a question of judicial investigation. Whether the means are "necessary" belongs to the power of Congress or the executive branch, which is endowed by the Constitution. "If, when exercising power, Congress takes measures prohibited by the Constitution, or under the pretext of exercising power, Congress passes laws to achieve the purpose of unauthorized government, then our college will have a painful responsibility to declare that such a bill is not the law of our country. However, when the law does not prohibit it, it is really designed to achieve any purpose of authorizing the government. If we want to explore the necessary means here, then our hospital will cross the border of binding the judicial department and step into the territory of legislation. This court denies any coveting of this power. " (Paragraph 42).
This is the spirit of the American Constitution. Any power has a limit, and only its limit is authority. Next, we can see that the so-called "federal supremacy" is also meaningful in a limited scope.
Prove that banks are constitutional. What does that have to do with the state's tax power? The second part of the judgment in this case answered this question.
According to the Constitution of the United States, the state's right to tax is very important, which is reserved by the states and cannot be deprived by the federal government. The Constitution only explicitly prohibits States from levying tariffs, and the Tenth Amendment stipulates that "the powers that are not authorized by the Constitution to the United States and are not prohibited from being exercised by States shall be reserved by States or people." Therefore, it is not easy to prove that Massachusetts' taxation of American banks is unconstitutional.
Marshall has two logical starting points here, both of which seem to be arbitrary. First, "the supremacy of the constitution", that is, "the primary feature of the constitution is that it can recover this power from its subordinate members." (para. 48); Second, Massachusetts's taxation of American banks is destructive, and "the forces of destruction will conflict with the forces of creation and maintenance" (para. If these two premises are in doubt, the final conclusion will certainly not be established. So first of all, we should clarify these two issues here.
It is impossible for the constitution to contain the "primary feature" that it has the ability to recover this power from its subordinate members. The given power can be taken back at will? This is not the supreme constitution, but the unlimited constitution. Judging by Marshall's greatness, it is incomprehensible. From this, I read another translation, which said: "The Constitution has a recognized supreme feature, which can invalidate power, even the right to tax." (7) In other words, the state's taxation right is irretrievable, but when exercising this right on "something", it may be "invalid" because it is unconstitutional.
Marshall did not explain the reasons for judging that Massachusetts' taxation of American banks was a destructive exercise of taxation rights. This seems arbitrary, but please don't forget: when I explained the facts of the case earlier, I already explained that the so-called Massachusetts bank tax bill only applies to one object, that is, the branch of Bank of America in Massachusetts. Its purpose is obviously to make the latter unable to survive, so it is destructive. As a judgment of the Supreme Court of the United States, it generally does not demonstrate the facts of the case.
Obviously, both logical premises exist. The abstract meaning of "federal supremacy", that is, the federal constitution and laws control the constitutions and laws of the States, but cannot be controlled by them, has never been refuted, but its application in this case has been denied (paragraphs 50 and 5 1). Therefore, Marshall repeatedly demonstrated the principle of "federal supremacy". "In making this explanation, any principle that will hinder the legitimate operation of the supreme government is unacceptable. The essence of the highest position is to eliminate all obstacles to action within its scope and change every authorization of the secondary government so that its own operation is not affected by the secondary government. " (para. 100). 53)
However, none of the above matters. The real reason why this case decided to go down in history lies in Marshall's close connection with democracy when demonstrating federalism. When demonstrating the "highest" of the Federation, its premise is "limited"; When recognizing tax as sovereignty, its premise is the control and authorization of "voters"; Because of the different voters, the Massachusetts government has no right to tax the operation of the US government (para. 10). 7 1).