{"title":"“Has Congress Power to Incorporate a Bank?”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0004","url":null,"abstract":"Chief Justice Marshall’s ambiguous opinion in McCulloch v. Maryland rejected the hard-line Jeffersonian argument that implied powers were only those strictly necessary to implementing the enumerated powers. But while McCulloch’s logic of implied powers held hugely expansive potential for national legislative authority, Marshall did not follow that logic to its conclusion and stopped short of aggressively nationalistic grounds for upholding the Second Bank of the United States. The Bank’s lawyers argued for placing the constitutionality of the Bank on broad terms that would endorse a theory of implied powers untethered to the enumerated powers. They also offered a less aggressive but still highly nationalistic theory of implied commerce powers that would support internal improvements. Marshall’s studied avoidance of the Commerce Clause was almost certainly intended to avoid committing the Court to a concept of implied commerce powers, which might have entailed federal powers over internal improvements and slavery.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122207613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“As Far as Human Prudence Could Insure”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0005","url":null,"abstract":"Despite ample opportunity, Chief Justice Marshall did not build on McCulloch v. Maryland to engage in nation-building through his constitutional decisions. In Gibbons v. Ogden (1824), Marshall construed the term “commerce” to include navigation, and struck down a state monopoly over steamboat travel. Gibbons is widely understood as an expansive interpretation of the Commerce Clause that joins McCulloch in establishing the constitutional foundations of broad federal legislative powers. Yet Gibbons made no mention of McCulloch and marked a significant retreat from McCulloch’s conception of implied powers. Indeed, from McCulloch’s issuance in 1819 to the end of Marshall’s life in 1835, the Marshall Court never cited McCulloch’s discussions of constitutional interpretation, nationalist constitutional theory, or implied powers. Marshall’s studied refusal to endorse implied commerce powers is best explained as resulting from his desire to keep the Court out of the two incendiary issues of constitutional politics: internal improvements and slavery.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117306641","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“The Government of All”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0008","url":null,"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.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125483915","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“The Various Crises of Human Affairs”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0007","url":null,"abstract":"The Civil War confronted the United States with its greatest constitutional crisis, raising three issues for which McCulloch v. Maryland has been most celebrated: the nationalist Constitution, implied powers, and the capable Constitution. With McCulloch offering potential legal support for the Union cause, and the Taney Court’s states’-rights jurisprudence in disrepute, circumstances seemed prime for McCulloch to re-emerge from its forty years of neglect. Despite its potential relevance, McCulloch’s influence on constitutional argument during the Civil War was limited. Arguments against secession were developed without noticeable reliance on McCulloch, despite later claims at the end of the century that John Marshall’s ideas influenced Lincoln and the Union cause. In issuing the Emancipation Proclamation, Lincoln eschewed congressional powers and with them McCulloch. Still, the few McCulloch references by leading congressmen on key implied powers issues, if not a full-scale McCulloch revival in itself, prefigured McCulloch’s re-emergence.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126530134","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“Acting Directly on the People”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0009","url":null,"abstract":"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.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130490051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“Some Choice of Means”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0011","url":null,"abstract":"Progressive-era constitutionalists who believed that problems of industrialization required increasing governmental intervention in economic life debated the meaning of McCulloch v. Maryland against conservatives who claimed that such interventions violated a supposedly constitutional principle of laissez faire. Progressives’ pro-imperialism views morphed into advocacy of domestic social reform as thinkers like James Bradley Thayer, Theodore Roosevelt, and Albert Beveridge interpreted McCulloch to maintain that the Constitution was sufficiently expansive and adaptable to accommodate both imperialism and reform. Meanwhile, the conservative judicial activism of this period, known as the Lochner era from the Supreme Court decision in Lochner v. New York (1905), led the Supreme Court to invalidate key federal laws, like the 1916 Child Labor Act, which was struck down in Hammer v. Dagenhart (1918). Notwithstanding McCulloch, the Court denied Congress the power to regulate labor and productive activities, even when necessary and proper to regulating interstate commerce.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125541183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“The Question Perpetually Arising”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0003","url":null,"abstract":"In antebellum America, the dispute over national versus state governmental powers—“federalism” questions—defined the major political line of division. While paying lip service to the axiom that the Constitution creates a national government of limited enumerated powers, nationalists like Alexander Hamilton and Henry Clay argued for liberal construction and implied federal powers, including implied commerce powers, to encompass national economic development and “internal improvements” (infrastructure) projects. Jeffersonian Republicans argued that these policy initiatives were unconstitutional, according to their strict construction of federal powers. They were concerned in part that federal powers would be deemed exclusive and preempt many state laws. Above all, they were concerned that broad interpretations of constitutional powers would disrupt state control over slavery. Chief Justice Marshall was undoubtedly aware of all this as he pondered his decision in McCulloch v. Maryland.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129593347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“It Is a Constitution We Are Expounding”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0013","url":null,"abstract":"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.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115844105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“The Case Now to Be Determined”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0002","url":null,"abstract":"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.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116171771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"“Withholding the Most Appropriate Means”","authors":"David S. Schwartz","doi":"10.1093/oso/9780190699482.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780190699482.003.0012","url":null,"abstract":"`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.","PeriodicalId":434435,"journal":{"name":"The Spirit of the Constitution","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114177756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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