McCulloch's "Perpetually Arising" Questions

Authors

David S. Schwartz, University of Wisconsin

Keywords

legal history, federalism, nationalism, Supreme Court, Reconstruction Amendments, constitutional law

Abstract

I’m truly honored to have my book be the subject of a symposium on Balkinization, and I’m deeply grateful to Jack Balkin and John Mikhail for organizing and hosting it. Among its many gratifications for me personally, the symposium guaranteed that at least eight people would read the book. That these readers have engaged with it so closely and insightfully is icing on the cake. My first article on McCulloch four years ago, which became the basis for a couple of the early chapters in the book, insisted that McCulloch was properly interpreted as far less nationalistic than we were taught to think.1 But Sandy Levinson persuaded me that I was mistaken in asserting that there was one true interpretation of the case. The more I thought about it, the more my interpretation of McCulloch, like the arc of federalism history, would bend toward nationalism. The case is highly—probably studiedly—ambiguous, and the logic of its theory of implied powers is so decidedly nationalistic that the “aggressive nationalism” interpretation I take issue with is not exactly wrong. By the time I completed the book, I had come around to the view that Marshall tried to mask, and later actually retreated from, the nationalistic logic of his own McCulloch opinion, and that the Supreme Court has never consistently embraced that logic.

Recommended Citation

David S. Schwartz, McCulloch's "Perpetually Arising" Questions, 73 Ark. L. Rev. 73 (2020).
Available at: https://scholarworks.uark.edu/alr/vol73/iss1/4