“Acting Directly on the People”

Post–Civil War nationalism meant a partial but significant reversion to prewar constitutionalism, recognizing federal legislative authority over “every foot of American soil” and implementing the antebellum Whig-nationalist economic agenda, but allowing states to retain, or regain control over race relations. The Supreme Court upheld the constitutionality of internal improvements, but declined to embrace implied commerce powers, suggesting instead (as in Gibbons v. Ogden) that the question involved the definition of interstate commerce as an enumerated power. The Court seemed to want to confine McCulloch v. Maryland to taxation, banking, and currency matters. The Legal Tender Cases, which relied on McCulloch to uphold the federal power to issue paper money, were a watershed in the history of implied powers, and were recognized as such at the time by many commentators. Yet the Supreme Court over the ensuing decade and a half seemed unwilling to follow through on McCulloch’s full implications.

Conclusion

McCulloch v. Maryland’s nationalizing potential has not been fully realized, having been reined in by the Supreme Court for most of the years since it was written in 1819. Had McCulloch’s logic of implied powers been applied fully to the Commerce Clause, it would have been difficult to deny recognition of congressional powers to pursue internal improvements, to restrict slavery and child labor, and to regulate the areas of economic life now deemed within Congress’s authority under the Commerce Clause. Despite McCulloch’s importance, the claims that it made law or built the nation can all be traced to times when participants in constitutional politics felt the need to give a historical gloss to a contemporary argument. But liberals’ canonizing of John Marshall and McCulloch is not effective to make Supreme Court justices overcome their strongly held judicial views. McCulloch is simply too ambiguous to mandate a particular result in most contested cases.

“The Government of All”

After being buried by the late Marshall and Taney Courts, McCulloch v. Maryland experienced the beginnings of a revival during Reconstruction. McCulloch’s principles of nationalism, implied powers, and the capable Constitution seemed to have triumphed in the Civil War, offering potentially useful guidance in reconstructing the divided nation. A McCulloch revival occurred in Congress, but not, curiously, in the Supreme Court. After initial success, Reconstruction’s great experiment in integrating black citizens into the constitutional order ended with the slowly unfolding tragedy of abandonment of black Americans to their fate at the hands of white supremacist governments in the southern states. The Court in the Civil Rights Cases (1883) contributed to this abandonment when it ignored McCulloch, just as it had done under the Marshall and Taney Courts, by refusing to acknowledge Congress’s implied powers to legislate for racial equality under the Fourteenth Amendment and the other Reconstruction Amendments.

Introduction

Chief Justice John Marshall’s 1819 decision in McCulloch v. Maryland is widely regarded as the greatest constitutional decision ever issued by the Supreme Court. The ruling upheld Congress’s constitutional power to create the Second Bank of the United States, recognizing the “implied powers” of Congress and the supremacy of federal over state laws. Modern constitutional scholars believe that McCulloch established the constitutional foundation for the historic expansion of federal authority in the wake of the New Deal. But the nationalizing potential of McCulloch has not been fully realized. Only briefly in the mid-twentieth century did the Court embrace the full extent of McCulloch’s vision of implied powers, as it upheld broad federal laws regulating the economy and promoting racial equality. McCulloch’s 200-year odyssey, from 1819 to the present day, helps us understand how the “spirit” of the Constitution and its structure of federalism have been reinterpreted throughout U.S. constitutional history.

“It Is a Constitution We Are Expounding”

The thirty-odd years from the New Deal turnaround to the late 1960s represented a high-water mark for McCulloch v. Maryland. For the first time, the Supreme Court fully applied McCulloch to the Commerce Clause and the Reconstruction Amendments, and removed the concept of reserved state powers as a barrier to implied powers under these constitutional provisions. The post–New Deal Court recognized Congress’s authority to regulate virtually all aspects of the national economy and to legislate race relations and other issues of civil rights. Prior to 1941, the Court had limited McCulloch’s applicability to the Commerce Clause and the Fourteenth Amendment by subjecting the legislative powers of Congress to implied limitations arising out of the Tenth Amendment doctrine of reserved state powers. With the Tenth Amendment constraint removed, McCulloch for the first time was being applied to something like its full potential.

“Withholding the Most Appropriate Means”

`The New Deal judicial crisis arose from the Supreme Court’s continued refusal to recognize implied commerce powers by applying McCulloch v. Maryland to the Commerce Clause. Carter v. Carter Coal Co. (1936) asserted that “[i]n exercising the authority conferred by [the Commerce Clause], Congress is powerless to regulate anything which is not commerce.” Liberal New Dealers argued for the Constitution’s capability to sustain unprecedented federal legislative programs, but believed that dramatic change had to be accommodated within the existing Constitution without new amendments. New Dealers did not deploy McCulloch either as a precedent for broad implied commerce powers or for a principle of judicial restraint. They argued that the Court’s anti–New Deal decisions were historical aberrations that departed from McCulloch’s teaching that the Constitution had to be adapted to national crises. By 1936, McCulloch had become a canonical case, but both liberals and conservatives argued that McCulloch supported their side.

“The Painful Duty of This Tribunal”

The emergence of McCulloch v. Maryland as a foundational case of constitutional law stemmed from several factors, each coming together on its own separate timeline, converging on the years 1895 to 1901. These factors included the personal interest in John Marshall’s jurisprudence held by Supreme Court justices John Marshall Harlan and Horace Gray; the emergence of an autonomous legal profession; the related transition from the Grand Style to a common-law style in constitutional opinion writing; the publication of Harvard Professor James Bradley Thayer’s first-ever constitutional law casebook; and the conservative judicial reaction against the Populist movement. Marshall was canonized in a 1901 “John Marshall Day” centennial celebration consisting of conservative and backward-looking speeches that used Marshall as a symbol to validate conservative judicial activism and laissez-faire jurisprudence.

“The Baneful Influence of this Narrow Construction”

McCulloch v. Maryland and its principles came under attack during the Jacksonian era, and the Supreme Court under John Marshall’s successor, Roger Taney, ignored McCulloch into oblivion and reversed its thrust. The Taney Court prioritized states’ rights over federal power, to protect the constitutional position of slavery. McCulloch and Gibbons v. Ogden had refrained from committing the Court to implied commerce powers, and Gibbons also invited the Taney Court to ignore McCulloch. To the Jacksonian justices of the Taney Court, preservation of slave-state sovereignty—not the power of Congress to act for the benefit of the whole people—was the bedrock principle of the Constitution. Reserved state powers under the Tenth Amendment were sufficient to block implied federal powers. Moreover, states could regulate matters expressly delegated to the United States when conducive to exercising their reserved powers.

“The Case Now to Be Determined”

Conventional history maintains that Chief Justice Marshall was a “nation-builder” and McCulloch v. Maryland his signal achievement, expressing a nationalist vision that established the foundation for the modern welfare state. McCulloch is celebrated for three elements: a nationalist theory of the Constitution, a permissive view of implied powers, and a capable Constitution theory holding that the Constitution should be interpreted flexibly to empower the national government to address unforeseen national problems through changing circumstances. This conventional account claims that McCulloch was a causal agent in congressional policy decisions that built up the American nation, or less ambitiously, that McCulloch was a source of ideas that guided political debates, or that McCulloch bound and directed later Supreme Courts through the mechanism of judicial precedent. All three of these causal arguments for McCulloch’s historical influence are greatly exaggerated, if not false.

“A Splendid Bauble”

Since 1969, scholars have insisted that McCulloch v. Maryland established the foundations of the modern welfare state, yet during this same period, the Supreme Court has retreated from implied commerce powers and broad Fourteenth and Fifteenth Amendment enforcement powers. In NFIB v. Sebelius (2012), five justices agreed that the implied powers doctrine should not be applied to the Commerce Clause, and in Gonzales v. Raich (2005), eight justices ignored McCulloch, appearing to believe that implied commerce powers were irrelevant to the decision. In Shelby County v. Holder (2015), five justices disregarded McCulloch’s deferential approach to “appropriate legislation” to enforce the Reconstruction Amendments. The treatment of McCulloch as a binding precedent doing doctrinal work in cases of implied commerce powers and implied Reconstruction Amendment enforcement powers was short lived. Liberal scholars seem to want to use McCulloch to exhort the Court to be more permissive toward implied congressional powers.