legal history, states rights, federal power, Necessary and Proper Clause, Tucker's rule, Constitutional law
In his engaging and provocative new book, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz challenges McCulloch’s canonical status as a foundation stone in the building of American constitutional law. According to Schwartz, the fortunes of McCulloch ebbed and flowed depending on the politics of the day and the ideological commitments of Supreme Court justices. Judicial reliance on the case might disappear for a generation only to suddenly reappear in the next. If McCulloch v. Maryland enjoys pride of place in contemporary courses on constitutional law, Schwartz argues, then this is due more to personalities and institutions of the early twentieth century than it is to any deeply rooted historical consensus about the importance of Marshall’s opinion. Nor, Schwartz insists, should we read Marshall’s opinion on the Second Bank of the United States as embracing a theory of “aggressive nationalism” and the unlimited expansion of implied congressional power. That might be a correct reading of the Constitution (Schwartz is never completely clear on this particular point), but Marshall himself muddied the issue with ambiguous language—language that left the door open to later more restrictive interpretations of federal power. The fact that scholars and judges continue to treat McCulloch as a foundational statement of constitutional power reflects a triumph of twentieth century mythology—a triumph triply problematic in that it (1) is historically misleading, (2) does not embrace a fully robust understanding of implied federal power (which Schwartz presumably prefers), and (3) relies upon the same history-centric values as "conservatitve originalism" (which Schwartz presumably rejects).
McCulloch v. Madison: John Marshall's Effort to Bury Madisonian Federalism,
73 Ark. L. Rev.
Available at: https://scholarworks.uark.edu/alr/vol73/iss1/9