Structural interpretation refers to the Courts ability to produce an analysis that attempts to build up the Structure of the Constitution. In other words, this form works to support the founding ideas of “Separation of Powers” and checks and balances. Look for some of the ways the structure was supported in McCulloch.

McCulloch v. Maryland

17 U.S. (4 Wheat.) 316 (1819).

McCulloch was the defendant. He lost in the previous court and appealed.

  1. Does Congress have the power to create a bank?
  2. If so, can the state of Maryland tax the United States Bank in that State?

Congress must have the authority to create a bank, if the bank is to be deemed constitutional. If a bank is constitutional, then the state can exercise no power that is contrary to the Constitutional powers afforded to it.


A bank is constitutional, the state does not have the authority to tax the bank. Reversed.


McCulloch was the cashier for the 2nd United States Bank in the State of Maryland. Maryland was apposed to the establishment of a federal bank and passed laws designed to tax the bank. When the bank refused to pay the taxes, Maryland sued.


The court examines the structure of the Constitution to determine whether the bank is Constitutional. First, it recognizes that nowhere in the Constitution does it say that Congress has the power to establish a bank. However, that does not preclude Congress from enacting laws that are useful in reaching the goals of other laws. Other laws afforded to Congress include the power to tax and regulate commerce. Another power afforded to Congress is the ability to make laws that help achieve those goals. A bank can be deemed to be a law that helps Congress the power to tax and regulate commerce. As a result, it falls within the structure of the Constitution and can be found Constitutional.

Another key part of structuralism is the fact that the Supreme Court maintains the separation of powers. If the bank is Constitutional, and the court found that it is, then the States can do nothing that is contrary to a Constitutional Law. States do not have the authority to tax other states or the federal government. By taxing the bank, they are usurping the powers afforded to them by the Constitution. Therefore, the creation of a law that puts a state government over the federal government is unconstitutional.

Additional Notes

The real question is, can Maryland tax the bank? On a larger scale, what is the relationship between the state and federal government?

Marshall poses this in his own version of two questions:

  1. Is the establishment of the bank Constitutional?
  2. If so, can Maryland tax the federal bank?

Ultimately, a big takeaway from this case is that it was a broader way of constitutional interpretation.

Question 1

Yes, the establishment of the bank is Constitutional. Why? The Constitution has the “necessary and proper” clause at the end of article I, section 9. Here, he argues that this is a necessary and proper is to be interpreted broadly. How so? Congress has other powers related to money, and a federal bank is a “necessary” tool for the purpose of these powers.

He also says this power was implied.

His justification for this reasoning is that Constitution is to endure for ages and should be interpreted broadly to ensure that it continues to survive. Additionally, it is impossible to write a Constitution that contains all the code of the United States. His belief then is that the founders wrote this document to be interpreted broadly.

The counter-argument from Maryland is that the necessary and proper clause is more narrow, not broad. Additionally, since the establishment of the bank is not in the Constitution, the bank is unconstitutional.

A bit of background: The Constitution has enumerated powers (things Congress are allowed to do). Everything Congress does has to be within the scope of those powers. So, the Constitution is supreme, but it is only supreme in certain areas. Typically states have the general power to care for the health, safety, and morality of the people (Police Powers).

Question 2

Maryland cannot tax the bank. Why? Because there is a supremacy clause in the Constitution. This is derived from the phrase “the power to tax is the power to destroy.” If you give Maryland the power to tax, then it could destroy the bank. This would be contrary to the supremacy clause, where the federal government is to have more power than the state governments.

Also, we do not want a individuals to be burdened by the taxation of the state. What this means is that the if Maryland taxes a federal entity, it is essentially taxing it all over the United States, outside of Maryland. One of the purposes of the Constitution was to remove interstate taxation. This principle is called representation reenforcement.

Natural Law or Natural Rights

This method of constitutional interpretation is that the Constitution was created to defend that natural rights of the citizens. So, even if a provision in the Constitution is lacking, it can be interpreted to reach towards those situations where it is needed to expand.

Calder v. Bull

3 U.S. (3 Dall.) 386 (1798).


The act of the legislation was fine.


The legislature had disagreed with a judicial ruling and enacted a law to overturn it. This case then went to the Supreme Court to determine if the legislation was “ex post facto.”


The courts are conflicted on this approach.

One justice said that if the law goes against the natural rights listed by the Declaration of Independence and protected by the Constitution, then it is the responsibility of the court to protect those natural rights. In other words, there is an “unwritten Constitution” which the court needs to protect.

The other justice disagrees by saying that if the law violates the Constitution, then yes, it is unconstitutional. However, it is not the responsibility of the court to determine whether the Constitution has been violated, in an effort to preserve a subjective rights.

Additional Notes

This argument is that the Constitution should be interpreted to benefit the “common good.” In other words, the laws can be implied to benefit.

The conflict here is that this is very subjective. There are no limits on what the judge may determine “what is moral?” The argument here is that because there is a “written constitution,” it negates the idea that there is a “unwritten constitution.”

Ultimately, this is whether you interpret the Constitution broadly or narrowly. My preference? Keep it as objective as possible by removing subjectivity but understanding that there are moral arguments that can and need to be made.

Tools of Constitutional Interpretation

Text – D.C. v. Heller

Structure – McCulloch – Separation of powers and checks and balances.

Policy/Pragmatism – Considering what is going on in society at the time.

Precedent – Following the reasoning in past cases.

Ethics – Natural Law

Prudence – Holding back – Passive virtues.

Originalism – Founders intent and textual meaning. Textualism tends to be a subcategory of originalism.

Political ideologies tend to sort methods of constitutional interpretation.


  • Text
  • Originalism


  • Structure
  • Policy/Pragmatism
  • Ethics

Precedent and Prudence tends to be the middle ground.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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