Balkinization: McCulloch and Fundamental Rights Regimes

McCulloch and Fundamental Rights Regimes

Mark Graber

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

David Schwartz’s magnificent The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland explicitly challenges how we teach governmental powers in first semester constitutional law and implicitly challenges how we teach civil rights and liberties in second semester constitutional law. Contrary to the impression given in almost all classes in the first part or semester of constitutional law, no straight line exists from the Marshall opinion in McCulloch to the New Deal. Schwartz meticulously details how for two-hundred years, different aspects of McCulloch have been used, abused or ignored in light of the dominant constitutional ethos of the time. Both Chief Justice John Roberts and Justice Ruth Bader Ginsburg in National Federation of Independent Businesses claimed to be Marshallian, even as they offered constitutional visions that sharply diverged from each other and almost as sharply diverged from that of the McCulloch opinion. The Spirit of the Constitution also highlights how McCulloch has been central to questions of slavery and race that often form the bulk of the second part or semester of constitutional law. The history of McCulloch, particularly in the nineteenth century subverts the common decision to discuss government powers in the first part or semester of constitutional law and fundamental rights in the second part or semester of constitutional law. For most of the nineteenth century, government power was the crucial instrument for ensuring that Americans enjoyed certain fundamental rights and interpretations of McCulloch determined the scope of that national power.

McCulloch is always been present, sometimes present by absence, Schwartz details, when slavery and race are on the table. The first debates over national power were as animated by concerns over federal power to regulate slavery as by concerns over the national bank or internal improvements. Southerners from John Randolph to James Madison objected to the apparently broad definition of federal power in McCulloch and Gibbon v. Ogden (1824) because they feared precedents that might license the federal government to restrict the slave trade and, perhaps, human bondage. Such southern Federalists as James Wayne performed daring feats of legal gymnastics when explaining why broad federal powers over commerce did not entail any federal power over slavery.

Concerns over national power in the early republic often trenched on matters commonly taught in Constitutional Law 2. National Republicans and Whigs saw federal power asa means for advancing Protestant moral virtues and for promoting national commercial prosperity. They sought to build a national university and ensure school systems with particular curricula. Many derived national programs promoting such social services as hospitals from constitutional commitments to ensuring the welfare of the citizenry that constitutionalists in later periods would claim to be positive rights. In short, national power was a means for promoting a particular kind of regime rather than simply a means for growing the economy. McCulloch was about federal capacity to determine the character of a republic.

Schwartz appreciates that crucial issues in Dred Scott v. Sandford (1856) revolved around McCulloch’s understanding of “necessary.” One issue in Dred Scott was whether Article IV, Section 3, paragraph 2, which declares, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Justices Benjamin Curtis and John McLean cited McCulloch or related precedents for the proposition that “needful Rules and Regulations” gave Congress had the power to ban slavery in all American territories. Justice Peter Daniel, advancing a southern understanding of necessary, insisted that banning slavery was unconstitutional because not sufficiently necessary (Madison had taken a similar view 20 years earlier—Taney insisted the territorial clause was inapplicable to territories on the west side of the Mississippi).

McCulloch in the debate over slavery in the territories involved regime principles far broader than a commitment to national commercial prosperity. As Eric Foner notably points out, Republican opponents of slavery had a constitutional commitment to a free labor society. Congressional power created the conditions under which contract would be the fundamental relationship between persons. McCulloch, again, was the crucial precedent that enable Congress to determine the character of the regime. Congressional legislation, not judicial decree, was the source of fundamental rights in a regime in which contract replaced status

The post-Civil War amendments cemented McCulloch understanding of national power as fundamental to the American regime. Republicans were clear that the enforcement clauses of the Thirteenth, Fourteenth and Fifteenth Amendments vested Congress with the power to ensure the guarantees made in the Section 1 of each amendment, the Thirteenth and Fourteenth Amendments in particular. Most notably, Republicans referred to these provisions as guarantees, not as rights, limits or constraints on government power. McCulloch was the appropriate precedent because McCulloch was about the use of national power to achieve the fundamental goals of the regime.

Republican accounts of the Thirteenth and Fourteenth Amendments during the late 1860s and early 1870s suggested that had the framers engrafted both amendments onto the original constitution, Article I, Section 8, which outlines the powers of the national legislation, not Article I, Section 10, which constrains the power of state governments, would have been the appropriate location. The Thirteenth Amendment, as understood by Republicans in Congress, gave the national government the power to eradicate all remnants of slavery, the slave system and the slave power. The Fourteenth Amendment, as understood by Republicans in Congress, gave the national government the power to ensure that state governments both protected and equally protected the fundamental rights of all persons in the United States. National power was appropriate both when states intentionally refused to protect some persons or denied them certain fundamental rights and when states lacked the capacity to protect persons because of private violence. The Thirteenth and Fourteenth Amendments were Article I, Section 8 powers, subject to the principles laid down in McCulloch, because they empowered Congress to achieve certain goals. By comparison, courts were primarily responsible for enforcing the limits on state power laid down in Article I, Section 10, such as the contracts clause. Republicans no doubt thought courts had some independent role to play in implementing the Thirteenth and Fourteenth Amendment, perhaps akin to the dormant commerce clause, but few antislavery advocates discussed the judicial role during the ratification debates and debates over legislation implementing the Thirteenth and Fourteenth Amendments.

Free labor constitutionalism changed dramatically during the late nineteenth century. Republicans in Congress and on the federal bench converted the Thirteenth and Fourteenth Amendments from national powers into individual rights that limited on state governments. Republican lawyers called on courts to protect the freedom of contract and, every now and then, the rights of persons of color. The few persons who bothered asking Congress for civil rights legislation were rebuffed. When racial egalitarians made attempts at civil rights legislation, no Republican harkened back to the 1850s when Republicans and anti-slavery Whigs saw McCulloch as providing the foundation for federal power to pass the legislation necessary to create free labor regimes in the western territories.

The Warren Court’s invocation of McCulloch in such cases as South Carolina v Katzenbach (1964) was more in line with turn of the twentieth century constitutionalism than nineteenth century constitutionalism. The justices in the 1960s interpreted Section 1 of the Fourteenth Amendment as protecting individual rights. Congress was then empowered to pass legislation remedying, identifying and preventing individual rights violations. Judicial opinions cited McCulloch for the proposition that Congress could take whatever steps a reasonable person might think remedied or prevented individual rights violations. No one suggested that the Fourteenth Amendment was about empowering Congress to achieve such Article I, Section 8ish goals as eradicating the remnants of the slave system or ensuring that states protected and protected equally fundamental rights.

Professor Schwartz nevertheless provides constitutional Civil War buffs with cause for optimism. The meaning and significance of McCulloch, he points out, has changed as American understanding of constitutional commitments have changed. Our McCulloch is not the McCulloch of 1819 or 1919. Perhaps inspired by creative reinterpretations of McCulloch throughout history, progressives activists will find the foundations for a congressionally led regime that understands a strong national government to be the prerequisite of a strong progressive fundamental rights regime and progressive pedagogues will find a way to teach their student how theories of national power lay at the foundations of all fundamental rights regimes.

Posted 9:30 AM by Mark Graber [link]