“The Government of All”

Abstract

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.