McCulloch and the American Regime

Authors

Mark A. Graber, University of MarylandFollow

Keywords

constitutional powers, constitutional rights, national power, federalism

Abstract

Professor David S. Schwartz’s magnificent The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland explicitly challenges how we teach government powers in first weeks or semester of constitutional law and implicitly challenges how we teach civil rights and liberties in later weeks or second semester of constitutional law. Contrary to the impression given in many classes on the constitutional law of national powers, no straight line exists from the Marshall opinion in McCulloch v. Maryland to the New Deal and beyond. Schwartz meticulously details how, for two-hundred years, different aspects of McCulloch have been used, abused, or ignored in light of the dominant constitutional ethos of the time. Both Chief Justice John Roberts and Justice Ruth Bader Ginsburg in National Federation of Independent Businesses claimed to be Marshallian, even as they offered constitutional visions that sharply diverged from each other and almost as sharply diverged from that of the McCulloch opinion. Professor Schwartz’s history of McCulloch subverts the common decision to discuss government powers in the first part or semester of constitutional law and fundamental rights in the second part or semester of constitutional law. The Spirit of the Constitution highlights how McCulloch is central to questions of slavery and race that often form the bulk of the second part or semester of constitutional law. For most of the nineteenth century, government power was the crucial instrument for ensuring that Americans enjoyed certain fundamental rights. Interpretations of McCulloch determined the scope of that national power. Progressives turned to McCulloch in the 1960s for the government powers necessary to combat Jim Crow. If strengthening national legislatures ought to be central to progressive efforts to turn back right-wing populist movements throughout the universe of constitutional democracy, then McCulloch ought to be as canonical a decision for the constitutional politics of fundamental rights as that decision is for the constitutional politics of government powers.

Recommended Citation

Mark A. Graber, McCulloch and the American Regime, 73 Ark. L. Rev. 95 (2020).
Available at: https://scholarworks.uark.edu/alr/vol73/iss1/7