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03/02/2020

Nelson Lund on David Schwartz's "The Spirit of the Constitution"
Michael Ramsey

In the Federalist Society Review, Nelson Lund (George Mason -- Scalia Law): The Mythical McCulloch (reviewing [somewhat negatively] The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland by David Schwartz (Oxford Univ. Press 2019)).  From the introduction (footnotes omitted): 

Generations of lawyers have been taught that McCulloch v. Maryland is the foundational precedent that “established an expansive view of national power under the U.S. Constitution.” In The Spirit of the Constitution, David S. Schwartz maintains that this is a myth created by twentieth-century progressives in order to make the expansive view they favored seem more venerable than it really is. I am satisfied that he has proved his case, though I am less sure that his revisionist history throws any new light on the spirit of the Constitution. Schwartz’s detailed commentary does sharpen the issues raised by recent efforts to cabin the expansive view of national power that McCulloch supposedly established, and that may be the chief value of his book.

As every law student learns, McCulloch held that Congress had an implied power to establish the Second Bank of the United States and that Maryland’s tax on the operations of the Bank was unconstitutional.[4] Schwartz observes that Marshall’s opinion is ambiguous about the extent of the federal legislature’s implied powers and about the Supreme Court’s role in enforcing whatever limits the Constitution places on those powers.[5] This is not a revelation. Anyone who reads the case with care and an open mind can see that the opinion is by turns vague, ambiguous, and equivocal. Marshall sometimes suggests that the Constitution imposes virtually no limits on the reach of congressional power, or at least that it is up to Congress itself to decide what those limits are. At other points, he emphasizes that judicially enforceable limits on implied powers can be found in the Constitution’s text as well as in its “spirit” and in the principle that lawful powers may not be exercised as a pretext for accomplishing unauthorized ends.

Notwithstanding the fog created by the opinion’s conflicting signals, modern lawyers have tended to assume that McCulloch established that Congress has a very expansive range of implied powers, especially under the Commerce Clause. Schwartz shows that the case was largely ignored by the Court for several decades, and then at different times invoked for broad and narrow understandings of implied powers. As he summarizes this point at the very end of his book, “The interpretation given to McCulloch through successive generations tells us much about each generation’s spirit of the Constitution. The truth is that McCulloch did not make great constitutional law. Rather, constitutional law made McCulloch great.”

And from later on:

Schwartz is confident that a proper understanding of McCulloch’s logic “allows Congress to legislate about most things that ‘we the people’ need it to.” But he worries that debunking the McCulloch myth, according to which the Great Chief Justice established this principle two hundred years ago, might undercut arguments for “liberal constitutional values I agree with.”

This concern is almost certainly misplaced. Schwartz fervently believes that the Supreme Court was “fairly liberal” for thirty-two years before President Nixon came along, and that the current “long conservative Court” has made profound and baleful doctrinal changes affecting such matters as abortion, gun violence, protections for criminal defendants, affirmative action, sovereign immunity, and campaign financing. None of these issues has anything to do with implied congressional powers under Article I. Notwithstanding his assertion that the Court’s conservatives have turned McCulloch into a “splendid bauble,” he offers no actual evidence that meaningful limits have been imposed on implied congressional powers. On the contrary, his most effective jab at the modern federalism revival targets the Court’s failure to articulate any principle or theory that would identify such limits.

When the revival began with United States v. Lopez in 1995, Chief Justice Rehnquist insisted that the Constitution’s enumeration of powers implies that Congress does not possess a general police power, and he criticized Justice Breyer’s dissent for its failure to identify any activity that only the states may regulate. Schwartz ridicules this argument, calling it “the mustbesomething rule.” I think Rehnquist’s point was perfectly valid, but Schwartz is right that it leaves the important questions unanswered. Neither Lopez nor subsequent cases have told us how to identify the reserved powers of the states.

...

Schwartz should probably celebrate the Court’s “mustbesomething” approach, rather than mock it. Those who are more concerned with recovering the original meaning of the Constitution than with promoting Schwartz’s “liberal constitutional values” may take a different view. But everyone should be able to agree that McCulloch v. Maryland did not itself establish much of anything.

Note: Professor Lund is the author of The Destructive Legacy of McCulloch v. Maryland, in McCulloch v. Maryland at 200 (Gary J. Schmitt ed., forthcoming).

I don't have an originalist problem with McCulloch.  Congress has power to raise money by taxing and borrowing. It needs a place to put that money.  Sure, it could  put the money in state banks (so a national bank isn't absolutely necessary).  But Congress might be understandably reluctant to trust state banks, and no state bank could provide the security for federal funds that a national bank would.  So Congress does not have a fully adequate alternative.  I think that makes the bank sufficiently "necessary."  And creating a national bank does not seem such an imposition on states or individuals that it would be constitutionally improper (to the extent one thinks "proper" adds something substantive to "necessary").  As to what Marshall said in the opinion: well, Marshall said a lot of things, many of them a bit vague or inconsistent; from an originalist perspective the question is how what he said fits with other originalist evidence.

CLARIFICATION: Professor Lund notes that he doesn't think McCulloch was wrongly decided, just poorly reasoned.  I didn't mean to suggest otherwise.