The Confusing Language of McCulloch v. Maryland: Did Marshall Really Know What He Was Doing (or Meant)?

Authors

Sanford Levinson, University of Texas, AustinFollow

Keywords

sovereignty, U.S. Supreme Court case, Fourteenth Amendment, political theory

Abstract

All legal “interpretation” involves confrontation with inherently indeterminate language. I have distinguished in my own work between what I call the Constitution of Settlement and the Constitution of Conversation. The former includes those aspects of the Constitution that do indeed seem devoid of interpretive challenge, such as the unfortunate assignment of two senators to each state or the specification of the terms of office of representatives, senators, and presidents. I am quite happy to concede that “two,” “four,” and “six” have determinate meaning, though my concession is not based on a fancy theory of linguistics. It is, rather, a recognition that only in the most unusual, perhaps even bizarre, circumstances would anyone raise serious questions about their meaning. Around the seminar table, contemplating the highest of high theories, one can “problematize” all language; texts are never truly self-interpreting. They could, after all, be written in a secret code to which we must apply a key. But, pragmatically, we all “know” what “two,” “four,” or “six” means, and we are even willing to concede without further discussion that one measures the age requirements for public officials against the solar rather than lunar calendar. We can debate the wisdom of all of these constitutional requirements, as I am wont to do, but there is, practically speaking, no serious debate about their meaning.

Recommended Citation

Sanford Levinson, The Confusing Language of McCulloch v. Maryland: Did Marshall Really Know What He Was Doing (or Meant)?, 72 Ark. L. Rev. 7 (2019).
Available at: https://scholarworks.uark.edu/alr/vol72/iss1/2