The Mythical McCulloch

A Review of The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, by David S. Schwartz, https://www.amazon.com/Spirit-Constitution-Marshall-200-Year-McCulloch/dp/0190699485.

Note from the Editor:

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Generations of lawyers have been taught that McCulloch v. Maryland[1] is the foundational precedent that “established an expansive view of national power under the U.S. Constitution.”[2] In The Spirit of the Constitution, David S. Schwartz maintains that this is a myth created by twentieth-century progressives in order to make the expansive view they favored seem more venerable than it really is.[3] I am satisfied that he has proved his case, though I am less sure that his revisionist history throws any new light on the spirit of the Constitution. Schwartz’s detailed commentary does sharpen the issues raised by recent efforts to cabin the expansive view of national power that McCulloch supposedly established, and that may be the chief value of his book.

As every law student learns, McCulloch held that Congress had an implied power to establish the Second Bank of the United States and that Maryland’s tax on the operations of the Bank was unconstitutional.[4] Schwartz observes that Marshall’s opinion is ambiguous about the extent of the federal legislature’s implied powers and about the Supreme Court’s role in enforcing whatever limits the Constitution places on those powers.[5] This is not a revelation. Anyone who reads the case with care and an open mind can see that the opinion is by turns vague, ambiguous, and equivocal. Marshall sometimes suggests that the Constitution imposes virtually no limits on the reach of congressional power, or at least that it is up to Congress itself to decide what those limits are. At other points, he emphasizes that judicially enforceable limits on implied powers can be found in the Constitution’s text as well as in its “spirit” and in the principle that lawful powers may not be exercised as a pretext for accomplishing unauthorized ends.

Notwithstanding the fog created by the opinion’s conflicting signals, modern lawyers have tended to assume that McCulloch established that Congress has a very expansive range of implied powers, especially under the Commerce Clause. Schwartz shows that the case was largely ignored by the Court for several decades, and then at different times invoked for broad and narrow understandings of implied powers. As he summarizes this point at the very end of his book, “The interpretation given to McCulloch through successive generations tells us much about each generation’s spirit of the Constitution. The truth is that McCulloch did not make great constitutional law. Rather, constitutional law made McCulloch great.”[6]

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Many readers will be surprised to learn that the putatively foundational McCulloch opinion on implied powers was essentially ignored by Marshall himself, and by the Taney Court, and then for many years after the Civil War. Although Schwartz understandably wants to emphasize the novelty of his description of McCulloch’s “200-year Odyssey,” much of the story is familiar.

Until the late nineteenth century, Congress did not enact much legislation that tested the limits of its delegated powers.[7] When Congress began to adopt more aggressive laws dealing with commercial activities, the Court sought to establish doctrines that would permit the effective regulation of interstate commerce without unleashing a tool for displacing the states’ authority over their internal affairs. The New Deal Court abandoned that effort and appeared to remove virtually all restraints on Congress, save what the Justices might find from time to time in the Bill of Rights. More recently, majorities in the Rehnquist and Roberts Courts have resumed the search for limits on implied powers.

As Schwartz recognizes, McCulloch generated considerable controversy the moment it was decided, largely because it could be construed as a green light for congressional interference with the internal affairs of the states. But the Marshall and Taney Courts declined either to confirm or to repudiate that construction. The most obvious explanation is that Congress did not try to exploit any such green light, but Schwartz offers a different interpretation. Noting that legislation under the Commerce Clause would be the natural way for Congress to displace a great deal of state authority (as it eventually did), he maintains that Gibbons v. Ogden[8] quickly put a damper on McCulloch’s nationalist potential.[9]

Like McCulloch, Gibbons is now regarded as a canonical case that established a broad view of federal power. But it, too, offers a confusing assemblage of mixed signals. The case held that navigation is a part of commerce and that Congress therefore had the authority to preempt a state-created monopoly that restricted commercial navigation between New York and other states. Gibbons did not cite McCulloch, and Schwartz contends that Marshall characterized navigation as a part of commerce in order to avoid applying the kind of implied-power analysis toward which McCulloch pointed. This was important, he believes, because it “made the potential scope of the Commerce Clause more concrete and smaller in order to reduce the potential displacement of state laws were the Court ever to adopt an exclusive commerce theory.”[10]

I find this argument unconvincing. Schwartz maintains, on the basis of very little evidence, that the definition of the word “commerce” was generally thought to cover only trade, not the transportation without which trade can seldom take place.[11] Even if one accepts that questionable claim,[12] cross-border commercial transportation (including navigation) is so closely and necessarily bound up with interstate and foreign trade that a “McCulloch analysis” need not have recognized any broader power than the definitional approach taken in Gibbons. And whether or not the Court were to adopt the theory that Congress has exclusive authority over interstate and foreign commerce, which it never has, Gibbons would not preclude the use of implied-powers analysis. Nor has the Court ever suggested that Gibbons constitutes an obstacle to the implied-powers analysis that is routinely employed in Commerce Clause cases.

What’s more, Gibbons contains language that can easily, if improperly, be interpreted to give Congress authority to regulate intrastate commerce that affects other states, no matter how remote or small the effects may be.[13] This would amount to McCulloch on steroids. Even if one assumes that Marshall only meant to approve the regulation of intrastate activities that have substantial effects in other states, the scope of congressional power would be very wide, as we know from the modern cases. It is quite implausible that Gibbons was as an effort by Marshall to reduce the potential scope of implied congressional powers.

For Schwartz, Gibbons was just the first example of the Supreme Court’s repeated refusals to draw the most appropriate inferences from McCulloch. This affected both the Commerce Clause and the enforcement provisions of the Reconstruction Amendments. As I understand his argument, it goes like this.

McCulloch might have established the expansive view of national power that the modern myth attributes to it because the potential was there in Marshall’s opinion.[14] But for way too long, the Supreme Court was unable or unwilling to drop the pernicious assumption that state governments must have significant reserved powers.

Possibly in the Marshall Court and certainly in the Taney Court, Schwartz maintains, this reflected pro-slavery sentiments.[15] After the Civil War, the Court was determined to sustain social inequality between the races by narrowly construing the enforcement provisions of the Reconstruction Amendments.[16] The Court’s misbegotten solicitude for state prerogatives continued with such decisions as Hammer v. Dagenhart[17] and Carter v. Carter Coal Co.,[18] in what Schwartz tendentiously calls the “Lochner era.”[19] As he must know, Lochner’s substantive due process restriction on the states’ police power was doctrinally disconnected from questions about the scope of Congress’s implied powers. But Lochner is now reviled by a wide range of judges and commentators,[20] so the use of this term serves mainly to smear the Court’s reserved-powers decisions through guilt by association.

In United States v. Darby,[21] the Court finally woke up and adopted the view Schwartz favors, namely that the regulatory powers reserved to the states constitute a null set.[22] Although he thinks that Wickard v. Filburn[23] returned to the Gibbons “definitional” approach he dislikes, Schwartz admits that the two approaches will usually lead to the same result.[24] In any event, neither the Tenth Amendment nor a fetish about enumerated powers would henceforth inhibit congressional efforts to foster the welfare of the nation. For more than half a century, this understanding of the Constitution appeared to be settled.

Regrettably, in Schwartz’s view, the Court has more recently been attempting to resuscitate the “Tenth Amendment” view of the powers available to Congress. Ironically, perhaps, Schwartz credits Justice Scalia with being the only member of the Court who ever explained the distinction Schwartz draws between the approaches taken in McCulloch/Darby and in Gibbons/Wickard.[25] In his concurrence in Gonzalez v. Raich, Scalia stressed that Congress has the power to enact regulations that would otherwise be ultra vires, so long as they are needed to make an authorized regulation effective.[26] And it is true that Scalia distinguished this principle from the doctrine that Congress may regulate intrastate activities that have substantial effects on interstate commerce.[27] But he also noted that the Court has acknowledged at least since 1838 that authority over activities that are not part of interstate commerce derives from the Necessary and Proper Clause.[28]

Schwartz then claims that Scalia contradicted himself by concluding, in his dissent in National Federation of Independent Business v. Sebelius,[29] that the Commerce Clause does not empower Congress to “regulate inactivity” by forcing individuals to purchase certain kinds of health insurance. According to Schwartz, Scalia’s Raich concurrence “irrefutably supported” the constitutionality of this individual mandate because the regulation was reasonably adapted to the effectiveness of the statute’s regulation of the health care market.[30]

Schwartz is irrefutably wrong. The two cases are easy to distinguish, and in just the way implicitly suggested by the Sebelius opinion that Scalia co-authored:

What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause . . ., they cannot be such as will enable the Federal Government to regulate all private conduct . . . .

That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U.S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.[31]

In McCulloch terms, a principle that would allow Congress to exert control over virtually all private conduct cannot be “appropriate” because it is inconsistent with “the spirit of the Constitution.”[32] For that reason, even though the individual mandate might have been conducive to regulating an interstate health care market, Scalia rejected it on the ground that it violates what he called “structural limits upon federal power.” Whether or not Scalia was right to vote with the majority in Raich, his concurrence did not imply approval of a federal power to regulate everything in human life.

* * *

Schwartz is confident that a proper understanding of McCulloch’s logic “allows Congress to legislate about most things that ‘we the people’ need it to.”[33] But he worries that debunking the McCulloch myth, according to which the Great Chief Justice established this principle two hundred years ago, might undercut arguments for “liberal constitutional values I agree with.”[34]

This concern is almost certainly misplaced. Schwartz fervently believes that the Supreme Court was “fairly liberal” for thirty-two years before President Nixon came along, and that the current “long conservative Court” has made profound and baleful doctrinal changes affecting such matters as abortion, gun violence, protections for criminal defendants, affirmative action, sovereign immunity, and campaign financing.[35] None of these issues has anything to do with implied congressional powers under Article I. Notwithstanding his assertion that the Court’s conservatives have turned McCulloch into a “splendid bauble,”[36] he offers no actual evidence that meaningful limits have been imposed on implied congressional powers. On the contrary, his most effective jab at the modern federalism revival targets the Court’s failure to articulate any principle or theory that would identify such limits.

When the revival began with United States v. Lopez in 1995, Chief Justice Rehnquist insisted that the Constitution’s enumeration of powers implies that Congress does not possess a general police power, and he criticized Justice Breyer’s dissent for its failure to identify any activity that only the states may regulate.[37] Schwartz ridicules this argument, calling it “the mustbesomething rule.”[38] I think Rehnquist’s point was perfectly valid, but Schwartz is right that it leaves the important questions unanswered. Neither Lopez nor subsequent cases have told us how to identify the reserved powers of the states.

So far at least, the Court has identified only a few trivial ways in which Congress may not supplant the regulatory authority of the states. Nor do the Court’s opinions suggest that it will ever go beyond such symbolic concessions to the “mustbesomething rule.” Consider just two examples. Lopez struck down a statute that criminalized the possession of a gun in or near a school. Congress simply amended the statute to require that the gun have moved in interstate commerce.[39] NFIB v. Sebelius held that a statute requiring the purchase of specified insurance policies was not authorized by the Commerce Clause, but then upheld the mandate as an exercise of the taxing power.[40]

As this second case should remind us, almost anything that the Court might decide is beyond congressional power under the Commerce Clause can be accomplished through the spending power that the Court has purported to find in the Taxation Clause. New York v. United States offers a vivid example.[41] The Court’s spending power jurisprudence is a version of the Anti-Federalist claim that the Taxation Clause amounts to a warrant for Congress to do whatever it thinks necessary for the common defense or general welfare. In The Federalist No. 41, Madison responded to this claim by saying, “No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction.”

As the Necessary and Proper Clause confirms, Congress is certainly authorized to spend money in order to execute its enumerated powers. But the Taxation Clause does not constitute an independent authorization to spend money in any way that Congress thinks will serve the general welfare. The incoherent opinion in United States v. Butler,[42] which dismissed Madison’s arguments without even trying to refute them, is merely an illustration of the Supreme Court’s proclivity for enacting constitutional amendments in the guise of legal opinions.

Schwartz should probably celebrate the Court’s “mustbesomething” approach, rather than mock it. Those who are more concerned with recovering the original meaning of the Constitution than with promoting Schwartz’s “liberal constitutional values” may take a different view.[43] But everyone should be able to agree that McCulloch v. Maryland did not itself establish much of anything.