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04/18/2021

John Mikhail: McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause (Constitutional Commentary, forthcoming) (16 pages) on SSRN.  Here is the abstract:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” This famous passage in McCulloch v. Maryland can be read in at least two different ways. On a narrow reading, the ends in question are Congress’s enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the “foregoing powers” provision) to carry those enumerated powers into execution. On a broad reading, these ends also include the six great objects of the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the “all other powers” provision, aka “the Sweeping Clause”) refers.

This extended review of David Schwartz’s masterful new study of McCulloch (“The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland”) [ed.: Oxford University Press 2019, available here] shines a spotlight on the second, broader reading of the “Let the end be legitimate” passage, focusing on what happened to its robust conception of implied powers during five key episodes of the early Republic:

(1) The Virginia Ratifying Convention (1788);
(2) Congressional debates over constitutional amendments (1789);
(3) Congressional debates over abolition petitions (1790);
(4) Congressional debates over a national bank (1791); and
(5) United States v. Fisher (1805), the Marshall Court’s first Necessary and Proper Clause case.

Like Thomas Jefferson, James Madison, and other elite Virginians whose wealth rested on human bondage, John Marshall probably did not believe, or at any rate was unwilling to accept, that Congress could abolish slavery—even though he knew that a plausible interpretation of the Preamble and Sweeping Clause justified that conclusion. Likely for that very reason, his defense of implied powers in McCulloch was deliberately ambiguous.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended, and much more than just a review... Download it while it's hot!"

NOTE:  For a different take on Professor Schwartz's book from Nelson Lund (George Mason - Scalia), plus my one-paragraph originalist assessment of McCulloch, see here.