Happy Sunday at the Master’s. I know you’re all waiting, breath bated, for our next installment on the Federal general law and Swift v. Tyson. But that will have to wait, because this last week in Bobby’s Constitutional Law we covered the forgotten gem of the American Constitutional Canon: McCulloch v. Maryland. Why should we care about a stuffy old case about a bank, you fairly ask? Because McCulloch isn’t really about the Bank of the United States. It’s about how to read—and think—about the Constitution and, necessarily, about the whole point of American law.
In 1818, Maryland enacted an annual tax on all banks operating within the State that had not been chartered by the legislature. In both purpose and effect, the law had one target: the Second Bank of the United States. Second because, although President Washington and the First Congress had chartered the Bank of the United States in 1791, James Madison had let it lapse in 1811 only to come to his senses five years later, signing the Second Bank charter in 1816. Anyway, J.W. McCulloch, the Maryland-branch cashier refused to pay, Maryland sued and prevailed in Maryland courts, and so McCulloch appealed to the Supreme Court, presenting a deceptively simple question: “has Congress power to incorporate a bank?”
1. The First Aside.
Chief Justice Marshall could have decided the case on the historical record alone. The matter, he noted, could “scarcely be considered as an open question.” On the contrary, “[t]he principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department.” One almost wonders whether age and maturity or golf schedules prompted the newfound moderation, so contrasted with the John Marshall of 1803’s Marbury v. Madison: “it is emphatically the province and duty of the judicial department to say what the law is.” Whatever the reason, here in 1819, Marshall evinces a good dose of judicial humility: “An exposition of the Constitution, deliberately established by legislative acts . . . ought not to be lightly discarded.”
2. The Underlying Issue: Federal Sovereignty.
But Marshall did not leave it at that. “The[ above] observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the constitution.” McCulloch is no more about what Congress had done than about a Bank. This Maryland’s argument quickly makes clear:
[T]he counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion.
Simply put, Maryland doesn’t just deny Congressional authority to make a bank—it denies Federal sovereignty, and thus Congressional authority, in toto.
Marshall, to be sure, makes short work of the argument. For one, “We the People” framed, established, and ratified the Constitution (the division of ratifying conventions by State being just a not to practical reality). For another, the Declaration itself rejected the notion that the People could not withdraw sovereignty from the States and re-vest it in a general government (“whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government”). Thus, “The government of the Union, then, is, emphatically [same word as the judiciary’s duty to “say what the law is,” mind you] and truly, a government of the people.”
Yet as seemingly final and conclusive as this statement might appear, Marshall has the good sense to not leave the job half finished. Because, as any good lawyer will know, establishing something in principle does not necessarily instantiate it in practice. That is, proclaiming the sovereignty of the Federal government does little good without a framework for putting that national supremacy into effect. This explains why Marshall does not decide McCulloch merely on the historical record, but instead proceeds to explain how we ought to read and comprehend the United States Constitution as a document enabling the Federal government to take all measures reasonably calculated to advance the welfare of “We the People.”
3. The Practical Issue: Constitution of Experience.
In McCulloch, John Marshall propounds reason and experience as the touchstone of Constitutional interpretation. The Constitution ought to be read reasonably in light of the purposes for which it was established, permitting neither textual pedantry nor past mistakes to shackle present and future generations. Some examples will bear this out.
a) Reason & Context.
Marshall begins on the topic of Federal supremacy, illustrating his notion of reason. He acknowledges that “[t]his government is . . . one of enumerated powers.” But enumeration is one thing; Federalism another. And the Federal government’s bounds cannot be read to defeat its capacity. “If any one proposition could command the universal assent of mankind, we might expect it would be this—that the government of the Union, though limited in its powers, is supreme within its sphere of action.” This follows naturally, not from any specific Constitutional text, but from basic democratic principles. The Federal government “is the government of all; its powers are delegated by all; it represents all, and acts for all . . . The nation, on those subjects on which it can act, must necessarily bind its component parts [the States.]” Or, in other words, Federal law preempts State law because the Federal government represents all of us. We act with the greatest democratic weight not via the States, but via the United States. The Supremacy Clause (“this constitution, and the laws of the United States, which shall be made in pursuance thereof . . . shall be the supreme law of the land”) confirms this principle, but it does not establish it.
b) Experience.
Marshall further develops this line of reasoning to explain Congress’ authority to charter a national bank. True enough, Marshall admits, “[a]mong the enumerated powers, we do not find that of establishing a bank.” Now, to require all powers of government to be enumerated would require a self-defeating level of detail. “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means in which they may be carried into execution, would partake in the prolixity of a legal code, and could scarcely be embraced by the human mind.” But that’s not really Marshall’s point.
Far more important than feasibility, however, requiring a total enumeration of means and ends would deprive Congress of the the ability to learn from experience. The Articles of Confederation had attempted precise Congressional enumeration, reserving to the States “every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States.” Of course, that attempt at government imploded when Congress could not even raise money to fund a militia to see off Shays’ rebellion. Thus the Philadelphia Constitution contains “no phrase, like the articles of confederation, excludes incidental or implied powers.” The Tenth Amendment, notably, “omits the word ‘expressly,’ and declares only that the powers ‘not delegated to the United States . . . are reserved to the States.” The Founders had learned their lesson, Marshall explains, “[t]he men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word [expressly] in the articles of confederation.” A self-defeating constitution is not merely a bad constitution, Marshall tells us, it is no constitution at all. “Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves”—“In considering this question, then, we must never forget, that it is a constitution we are expounding.”
At this point, Marshall does mention the various ends which a national bank would serve: Congress’ power to tax, borrow, and spend; regulate commerce; and to raise and support the armed forces. Marshall, good Federalist that he remains, does not mean to imply from all the foregoing that Congress can invent new substantive ends beyond those enumerated in Article I, Section 8. Rather, he means that Congress “must . . . be entrusted with ample means”—enumerated or not—to accomplish those ends. But perhaps grasping the delicacy of the situation (which we will flesh out at the end), besides mentioning that Congress needs a Bank to be able to effectively move capital around, Marshall leaves most of the reasons why Congress might need a Bank unstated. Instead, he focuses (and will continue to focus) on Congress’ authority to choose appropriate means to serve its ends: “The government which has a right to do an act, and has imposed on it the duty of performing the act, must, according to the dictates of reason, be allowed to select the means.”
c) Putting it all Together: Necessary & Proper.
Only then does Marshall finally reach the Constitutional text which most law students think (erroneously, as we have seen) McCulloch is all about: the Necessary & Proper Clause. But Marshall’s analysis here only re-illustrates the points of his constitutional interpretation already established.
Maryland argued that the Necessary & Proper Clause (which gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”), first, merely granted Congress the power to legislate, and, second, limited Congress to means without which the ends could not be achieved (“without which the power would be nugatory”). Marshall dispatches both with ease. The first he found scarcely worth responding to. “That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned.”
The second required little more explanation. “Is it true, that this [without which the power would be nugatory] is the sense in which the word ‘necessity’ is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without the other?” Of course not. “A thing may be necessary, very necessary, absolutely or indispensably necessary” (indeed, the Constitution recognizes as much, prohibiting States from enacting tariffs unless “absolutely necessary” to cover the cost of inspection laws). Maryland’s construction violated a simple corollary of Marshall’s rule of reason: don’t be a pedant. “It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense—in that sense which common usage justifies.” Thus, “we find that “necessary” “frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ means necessary to an end, is generally understood as employing any means calculated to produce the end.” Indeed, Maryland’s construction contravened not merely the ordinary usage of the term, but the structure of the the Constitution. The Necessary & Proper Clause, after all, rests in Article I, Section 8’s recitation of things Congress may do—not in Section 9’s list of things it can’t. “If, then, the[ Framers’] intention had been, by this clause, to restrain the free use of means which might otherwise have been implied,” this would have have been a pretty poor way to communicate it.
And yet, again, all of that textual machination simply lays the foundation. At bottom, Maryland’s constitutional interpretation would deny Congressional resort to experience. The Necessary & Proper Clause “is made in a constitution intended to endure for ages to come.” “To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.” Marshall’s Constitution of Experience looks to Congress’ “discretion”—
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
About a Bank, McCulloch is not.
4. Maryland’s Worry.
Marshall’s explanation, and his strategic omissions, make so much sense, one would not be amiss to wonder why Maryland spent all that effort trying to shackle Congress? There’s an immediate and concrete answer, and a more conceptual, longer term answer. Both, however, answer: because of the shackle.
a) Insurrection.
To the first, let’s go back to the very beginning. Why does Congress need a Bank? It certainly aids Congress’ ability to regulate commerce. It certainly aids Congress’ ability to tax, borrow, and spend. But perhaps Maryland was right, couldn’t Congress accomplish those ends, however roughly, by other means? Consider the opposite result in McCulloch. What if Congress couldn’t charter a Bank?
If Congress could not charter a Bank, the States still could. So Federal deposits would have to be held by banks chartered by the States. In the event of internal disruption or rebellion, either sanctioned by or with the sympathy of the local State legislature, Federal funds would be subject to impoundment. And thus, Congress—just as it found itself during Shays’ Rebellion—would find itself unable to levy troops. No sovereign will suffer (if it can help it) its deposits being in a bank chartered by another. Or, as Marshall puts it, “[n]o trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the States.”
But could not Congress still store funds for procurement of local militias in local treasuries? But that would require storage in some form reasonably guaranteed to hold its value during civil strife, that is, specie. Such local stocks of Federal specie, of course, would require Federal guards—a daily reminder of the waiting Federal jackboot, stripped of the local stimulus (that is, goodwill) bought by local Federal deposits. So Congress can either assuage the causes of insurrection while negating its capacity to respond; or maintain its capacity to respond while stoking the causes. It’s no coincidence, then, that Marshall notes, “[t]he exigencies of the nation may require that the treasure raised in the north should be transported to the south.” And so it will.
b) Experience & the Specter of Abolition.
But response to insurrection is the just the immediate consequence of letting Congress charter a Bank. Yet McCulloch, we have said, isn’t really about the Bank. It’s no coincidence (if I may be allowed the phrase again so soon) that Maryland—a slave State—contests Congress’ authority in McCulloch. To see why, just consider what the Constitution of Experience means for slavery.
To start, “[t]he government proceeds directly from the people . . . ‘in order to form a more perfect union, establish justice, ensure domestic tranquility, and secure the blessings of liberty to themselves and their posterity.’” “Its powers are granted by [the People], and are to be exercised directly on them, and for their benefit.”
True, there is no abolition clause. But neither is there a clause rejecting that power. And why would there be? The Federal government derives its legitimacy from the “consent of the governed,” and its supremacy from the fact that it “is the government of all”—the most democratic one we have. If McCulloch seeks to cement Federal sovereignty, human chattel bondage would undermine the whole venture.
True, the Constitution does instantiate slavery for some time. The Three-Fifths Clause pads Southern representation in the House and Electoral College. The Fugitive Slave Clause commits the North to return “fugitives.” And the Importation Clause forbids the abolition of the slave trade before 1808. But, of course, none of these clauses uses the word “slave”—just as the Tenth Amendment omits the term “expressly,” that can’t be written off as mere coincidence.
And if we’re playing textualism, many more Constitutional provisions contradict bondage. We’ve already mentioned “We the People,” an obvious reference to the Declaration and its doctrines of equality and consent. Article I sketches a legislature embodying the vote (consent), references the elections in which ordinary Americans will vote, and even populates the House of Representatives directly from those votes. The Electoral College again considers the consent of the governed. Article IV committs the Federal government to “guarantee to every State in this Union a Republican Form of Government.” And Article VII provides for the Constitution’s ratification by the consent of the governed. This before we even mention that the Import Clause implies, and the Commerce Clause confirms, Congress’ power to abolish the international slave trade (they did). The Commerce Clause also plainly covers the interstate slave trade. The Territorial Clause confirms Congress’ authority to abolish slavery in the territories (see the Northwest Ordinance).
But most of all, Marshall’s Constitution of Experience lets us learn from our mistakes, be it the five year “embarrassments” of lacking a national Bank, or the two-hundred fifty year embarrassment of human chattel bondage. What did experience make of human chattel bondage? What had slavery made of our national claim to self-government? What had slavery done to wages? What had slavery done to assuage the fears (or causes) of insurrection? What had slavery done for the cause of Republican government and Jefferson’s dream of yeoman farmers in the South, concentrating land, wealth, and power in the hands of a few oligarchic plantation owners? In another year after McCulloch, President Monroe would sign both a law declaring the slave trade to be piracy and the Missouri Compromise, banning slavery in the Louisiana territory north of Missouri’s southern border.
What would slavery do during the next forty years? Prompt South Carolina’s first call for secession in 1833? Render international embarrassment after embarrassment as Southern ports mistreated foreign sailors of color? Prompt the Trail of Tears? Annex Texas on spurious grounds? Engage the United States in a war of agression to conquer more land for enslaver’s plantations? Embroil the United States government in the continual indiginity of being called to account for ludicrous Southern “filibuster” schemes to conquer new overseas territory for slavery? Intrude upon Northern daily life ever more to “recover” free people of color living in the North? Foist an even more odious Fugitive Slave Act on the Nation? Rescind the Missouri Compromise in bad faith, reject the Constitutional interpretation of Thomas Jefferson and George Washington and the first Congress in Dred Scott v. Sandford, and threaten the expansion of slavery across the Continent north and south? Embroil us in a bloody civil war for a cause which has lingered, undead, for another century and a half?
Whether Marshall anticipated it or not, his Constitution of Experience permits Congress to take reasonably claculated, yet often-drastic, measures to advance the Constitution’s general ends, so long as the means are not otherwise prohibited. And no practice of ours better designed to undermine the legitimacy and welfare of the United States existed but slavery. If Marshall didn’t see it squarely in the crosshairs, Maryland did. Calhoun did, when he promulgated his doctrine of the concurrent majority. The South did, when they threatened to secede any time a vote went against them—until they did. Enslaver’s Constitution my ass.
McCulloch v. Maryland presents a trove of wisdom we ought not forget. Most law students grasp the Bank, and the Necessary & Proper Clause. There’s also the pragmatism, reliance on context and reason, and judicial humility—letting Congress, too, shape our Constitution’s meaning. But we disserve ourselves when we ignore the foundation of Marshall’s decision: the Constitution of Experience, which would have let Congress actually legislate a more perfect Union.
It should come as no surprise that Roger Taney would eschew John Marshall’s Constitution and instead espouse a recognizable form of modern originalism when the question of slavery’s continued western expansion arose in Dred Scott v. Sandford, declaring the Constitution irreparably a document of bondage merely because our historical practice in 1789 included slavery. Today’s Supreme Court shackles us to past generations’ errors by much the same doctrine. We can, of course, meet today’s originalism on the merits—for its failure to distinguish “between the Constitution’s compromises and its principles,” as Harry Jaffa would put it in New Birth of Freedom (2000). For its concession that slavery was ever, really, constitutional. For its inattention to equal citizenship for women or people of color.
For all these reasons, and many more, originalism is evil (or ideological neutrality that distinguish between force and principle—pick your demon). But all of those reasons are sort of beside the point in McCulloch v. Maryland. That we may learn from our mistakes “is a proposition too self-evident to have been questioned.” We ought to. And, if this Constitution is to endure, we must. In light of McCulloch, originalism isn’t just evil, it’s also dumb.
A new high. Bobby spells out McCulloch v Maryland, a case every law student reads, for what it really MEANT. The federal government is our broadest (hence strongest) democracy, and it may act accordingly, as a general government. We on the right NEVER heard anybody spell this out before. I’m sold.