Matthew Franck on "McCulloch v. Maryland at 200"Michael Ramsey

At Law & Liberty, Matthew Franck: Why McCulloch Is Blamed or Praised But Rarely Understood (reviewing McCulloch v. Maryland at 200: Debating John Marshall’s Jurisprudence (Gary Schmitt & Rebecca Burgess, eds., AEI Press, 2020)).  From the introduction: 

In any compilation of the greatest judicial opinions by the Great Chief Justice, John Marshall, McCulloch v. Maryland (1819) is bound to be mentioned, however short the list. Some scholars regard it as even more significant than Marbury v. Madison (1803), in which Marshall expounded on the power we now call judicial review. One thing the opinions have in common, unfortunately, is that both are widely misunderstood today. Marbury is commonly taught as though it stood for the puffed-up pretensions of judicial supremacy that attained the status of gospel truth among judges, lawyers, and law professors in the last century. And McCulloch is blamed or praised, depending on the political preferences of commentators, for allegedly writing a permission slip for Congress to do nearly anything it pleases under the rubric of “implied powers” authorized by the “necessary and proper” clause. But was that either the purpose or the effect of the Marshall Court’s decision in the case?

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For two centuries, then, McCulloch has been a lightning rod of controversy. It was fitting therefore that the American Enterprise Institute should sponsor a conference on the bicentennial of the case, resulting in the present volume edited by Gary J. Schmitt and Rebecca Burgess.

And in conclusion:

As I have indicated above, the contributions of Christopher Wolfe and Adam White are the high points of this collection. Wolfe, long one of our best Marshall scholars, has the rare capacity to see Marshall’s jurisprudence as the chief justice himself saw it—as animated by a devotion to principle and an aversion to judicial aggrandizement. White’s contribution is a thoughtful consideration of what Marshall can teach us about the meaning of “judicial statesmanship.” Since in part he takes issue with an article of mine from three decades ago, I will take this opportunity to say that he seems quite ready to condemn judicial statesmanship as I described it, and I am quite ready to embrace judicial statesmanship as he describes it. And as he describes McCulloch—as a case in which a statesmanlike Marshall exercised restraint, declining to endorse a broad agenda of nationalism in American politics—I am quite happy to say amen. Twentieth-century “big government” will have to look elsewhere than Marshall’s great decision to find its constitutional justification.

Here is a list of contributors and their chapters:

Nelson Lund, The Destructive Legacy of McCulloch v. Maryland

Michael Zuckert, The Sound of the Third Hand Clapping: James Madison's Reading of the Necessary and Proper Clause

Christopher Wolfe: McCulloch v. Maryland and John Marhsall's Constitutional Interpretation

Robert Webking: "A Friend of the Constitution": John Marshall's Defense of McCulloch v. Maryland

Abram Shulsky, How an Economist Might View McCulloch v. Maryland

Adam White, McCulloch v. Maryland and John Marshall's Judicial Statesmanship