The common understanding of the landmark McCulloch v Maryland case is that it argued in favor of broad congressional “implied” powers. But, an important scholarly paper shows this standard narrative to be greatly exaggerated.

Published at the University of Wisconsin Law School a paper by David S. Schwartz shows that the standard narrative greatly exaggerates what Judge John Marshall actually argued in his opinion, and the nationalism he supposedly espoused in it.

McCulloch v. Maryland is “the most misunderstood” case in American constitutional law according to Schwartz.

Considering the number of cases that have been turned on their heads, this is no small feat.

The case dealt primarily with whether the federal government could charter a national bank and whether that bank could be taxed by a state (Marshall ruled yes on the first, no on the second). But it also dealt with other matters, as well, such as national infrastructure projects and whether Congress had authority from any of the enumerated powers to build and maintain roads, canals and other infrastructure projects. Another issue raised was the scope of the commerce clause. All of these issues stemmed from the debate over the Bank, as it would handle the currency and fund internal improvements.

What made this case so significant is that the U.S. Constitution did not, nor does it still, expressly grant Congress the power to charter a bank, so Marshall had to find a justification beyond what was specifically written. He argued that while the Constitution does not specifically authorize the creation of a bank, it “does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation if the existence of such a being be essential, to the beneficial exercise of those powers. It is, then, the subject of fair inquiry how far such means may be employed” (bold emphasis added).

Schwartz says the misunderstanding about this case is due to the hyper-focus “on the narrowly-framed yes/no question of the constitutionality of the Bank,” because Marshall’s legal reasoning used to justify Congress’ authority to create the Bank is separate from what he wrote on Congress’ authority pertaining to the other matters.

“Because McCulloch reached the result sought by nationalists—the ‘yes’ answer, upholding congressional power to charter a national bank—the opinion seems to fit comfortably within an aggressive nationalism interpretation,” Schwartz writes.

But it doesn’t.

The hyper-focus on the bank, along with Marshall’s obvious nationalistic attitudes expressed in his opinion against the compact-theory of the United States, leads people to misconstrue what he was saying. While Marshall believed in the supremacy of the federal government over the states, Schwartz says, this doesn’t correlate directly to the belief in the federal government having exceptionally broad implied powers.

One common perception of McCulloch is that Marshall believed in giving Congress broader authority under the concept of “implied powers.” Schwartz counters this by stating Marshall was pointing out Congress had some discretion in how they were to carry out their enumerated powers, which “tells us that Marshall’s approach to constitutional interpretation is only as nationalistic as the implied powers doctrine it supports.”

But Marshall never claimed that anything Congress does is constitutional as long as they claim it is an “implied power,” Schwartz writes.

When upholding the constitutionality of the bank, for example, Marshall avoided citing a specific enumerated power from which the authority to charter a national bank could be implied.

Naturally, this begs the question: Then which power does it come from?

Marshall’s failure, or unwillingness, to cite an enumerated power in justifying a national bank charter is proof that McCulloch “fails to endorse any significantly nationalist argument pressed on the Court at oral argument or readily found in the Bank’s history and congressional debates.”

Nevertheless, rather than chalking up Marshall’s caginess to his nationalistic desires to grant Congress more powers, Schwartz makes the interesting case that Marshall was actually trying to uphold the constitutionality of the Bank without simultaneously granting Congress broader authority, precisely the opposite of what modern scholars claim, by not providing a specific enumerated power. To have done so, Schwartz states, would have required Marshall to offer an interpretation of an enumerated power, something he was eager to avoid becoming embroiled in.

Often overlooked in assessments of Marshall’s opinion is the historical context in which he wrote it. His stance put him at odds with anti-federalists who deemed the bank charter to be blatantly unconstitutional, yet it was tame by comparison to other nationalists such as Daniel Webster, who was among the Bank’s legal team in the case and pushed for a broader interpretation of the language contained in the enumerated powers.

“The words used in the constitution, ‘to regulate commerce,’ are so very general and extensive,” Webster told the Court, “that they might be construed to cover a vast field of legislation” (bold emphasis added).

Marshall could have easily concurred and used Webster’s arguments in his opinion, but instead he declined them. In doing so, he “systematically steered a moderate course relative to the arguments urged by the Bank’s defenders and other prominent nationalists of the time,” according to Schwartz.

Concerning the other issues at hand such as Congress’ authority over internal improvements, Schwartz writes that selective quotes from Marshall’s opinion to justify modern interpretations of McCulloch are abstract and vague, which is not surprising, as it reflects the confusing and inconsistent nature of Marshall’s own reasoning and logic in much of his opinion.

Again, what makes his ambiguity so revealing is that if he actually sought to interpret the Constitution as giving broader powers to Congress, there already were arguments available. But he never made them.

“McCulloch avoided taking a clear position on any of the leading constitutional controversies of his day — internal improvements, a national power over the money supply, and the scope of the commerce clause,” Schwartz writes. “Marshall also stopped conspicuously short of endorsing the Bank’s lawyers’ arguments for an extreme version of judicial deference to Congress’s choice of means and its interpretation of the scope of its own powers.”

Prophetically, Marshall wrote in his opinion that the debate over federal powers would never be settled.

This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise so long as our system shall exist (bold emphasis added).

Concordia res parvae crescunt

Small things grow great by concord...

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