“It Is a Constitution We Are Expounding”

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.