Watch a Constitutional Law Class
Watch an excerpt from Professor Dan Coenen's Constitutional Law class.
[Professor Dan Coenen:]
A great constitutional scholar, Charles Black, called McCullough versus Maryland the greatest of our constitutional cases. I hope in reading the case some of you felt a sense of exhilaration at the extraordinary reflections of Chief Justice John Marshall. Those reflections for example about the nature of the formation of the union are of theoretical significance. But in the end what the case is about is deciding a concrete dispute between real parties. This involves a question of constitutional law, right? It may be congress has the power to establish a bank but so what Maryland has the power to tax it. I mean this bank was not much different from the banks that are in operation today. It was owned by private shareholders, it was in essence a profit making business. Why shouldn’t Maryland have the power to tax it. In part 2 of the opinion, particularly the last paragraph, this word appears, right, operation. The court distinguishes a tax on the operation of the bank from other sorts of taxes. What if Maryland imposed exactly the same tax involved in this case, exactly the same tax, but it applied it to all banks, not just banks chartered by entities other than Maryland. Argue that a law under which Maryland taxed all banks, didn’t single out the bank of the United States for the tax imposed here, that this law would be constitutional, including as applied to the bank of the United States. We’ve learned that there’s a principal floating around here about a limitation on the ability of the state to tax the operations of the National Bank. But operations isn’t self defining is it, what does that mean? What re the operations of the bank? What are the components of operating a bank? Note also that in the context of these discussions I have not stood up here and said, here’s the answer! Is that disquieting to anyone? Yes… because there’s a part of you that wants to think that law is sort of like a gigantic recipe book and what I’ve come to law school to do is to learn all the recipes, so that when clients come to me I can say here’s the answer. But that’s not what law school is. To the extent there are easy recipes, they can be found. You can go to the library and get a book and find the answer. The hard work in law has to do with the process of reasoning that lawyers engage in particularly when they are confronted not with easy cases but with hard ones.