Tuesday, November 12, 2019

Accidents of History?

Guest Blogger

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).

Mark R. Killenbeck

            Guilty as charged.

            The title of my book arguably says it all.  The notion that M’Culloch v. Maryland “secured a Nation” places it squarely in the body of work on which David Schwartz focuses his “revisionist” sensibilities: individuals and writings that characterize M’Culloch as “great.”  His primary complaint – and amply documented finding – is that a convincing cases can be made that the record simply does not bear out the assumption that the decision “shap[ed] constitutional debates and guid[ed] constitutional development.”  Rather it simply “rehashed arguments,” “did not develop a single new idea,” and, as such “did not make great constitutional law.”  Instead, its embrace by individuals like me (albeit, ones with far greater insight and prestige) and subsequent placement at the center of the constitutional canon made the decision great by implication, rather than by execution or design.

            Fair enough.  If, for example, the question is whether Congress has implied powers – the issue for which M’Culloch is invariably cited and recognized – it broke absolutely no new ground.  As David points out very early, the Court recognized and embraced implied powers fourteen years earlier, in United States v. Fisher (1805).  In a similar vein, the Great Chief Justice seemed uniquely indifferent to the notion that M’Culloch itself might actually matter.  As David notes and stresses, “several more federalism cases arose during Marshall’s tenure, yet Marshall would virtually ignore M’Culloch for the last sixteen years of his judicial career, never referring back to its discussion of implied powers.”  Indeed, his successors continued in that vein.  There is little or no mention of M’Culloch, much less explication and reliance on its text or holdings, until it is disinterred and deployed by the New Deal Court.  Nor did pundits or scholars much care, until gently prodded in 1901 by celebrations of Marshall’s appointment as Chief Justice.  Even then, much of the embrace was tentative and muted, reducing both Marshall and his work to the vagaries of “be[ing] in the right place at the right time to become ‘the expounder of the constitution.’” (quoting Justice Oliver Wendell Holmes, Jr.).

            David’s discussion of these matters is detailed, meticulous, and fair.  He leads us through the cases decided in the wake of M’Culloch, both prominent and obscure, within which the Court fleshed out its vision of a developing nation and emerging constitutional order.  In particular, he notes the curious absence of any mention of M’Culloch or the principles for which it supposedly stands in the explication of what has become the single most important provision in the Constitution, the Commerce Clause, either as a matter of positive federal power to act or the existence and implications of a “dormant” or “negative” commerce power that limits the authority of the states in realms traditionally regarded as matters of sovereign state prerogative.

            David fills in the gaps in traditional M’Culloch scholarship and provides what is likely to be the definitive and exhaustive account of the cases and developments necessary to tell what Paul Harvey famously characterized as “The Rest of the Story.”  He gives M’Culloch its due, even as he gently prods us to recognize its shortcomings.  As such, his book (and the articles that preceded and shaped it, and now follow in its wake) are part of a welcome rekindling of interest in a decision that, astonishingly, had drawn scant focused attention by the time I became interested in it in the late 1990s.  My book was the first one dedicated solely to that case, and as such, can fairly be characterized as the last gasp of the old M’Culloch order.  In its wake we have the welcome work of people like David, Sandy Levinson, Mark Graber, John Mikhail, Eric Lomazoff, and others too numerous to mention (and to whom I apologize for not doing so) giving those of us with much to learn the insights and raw material required to fill in and reshape our assumptions about the case and its importance.

            That said, a quibble or two, provoked both by points I have made in the past and by important implications of Holmes reducing much of Marshall’s role and significance to the “fortunate circumstance” of being where he was, when he was.

            A threshold matter, in the Hamlet vein: “to cite or not to cite, that is the question.”  Marshall’s failure to give M’Culloch its due is the rule, not the exception.  In virtually every one of what are now deemed to be the “great” Marshall opinions he approaches the central issues as though writing on a blank slate when, far too often, that is simply not the case.  In his recounting, these are not routine judicial inquiries governed by precedent.  They are, rather, formative exercises within which John Marshall gives initial voice to what are presumed to be enduring principles and innovative rules.  In that respect, the truly remarkable Marshall opinion would be the one that does refer back to his own past decisions, rather than those that do not.

            The lack of post-Marshall recognition and reliance on M’Culloch, in turn, is hardly surprising given the directions in which both nation and Court went in the wake of Marshall’s tenure.  Much to my regret, the chapter of my book that would have provided at least a modicum of meaningful post-Marshall discussion ended up on the cutting room floor, a victim of page limitations imposed by the format of the series in which the book appeared.  There is, accordingly, no discussion of Gibbons v. Ogden (1824) and successor cases tracing the development of Commerce Clause doctrine in an era, and by a Court, that did not share Marshall’s vision and priorities.
            For example, David argues that all “Marshall implicitly recognized in Gibbons is a gray area in which federal implied powers and state powers compete.”  I agree that Marshall’s opinion in Gibbons is occasionally opaque and that he avoided definitive resolution of potentially important issues.  Unlike Justice William Johnson’s Gibbons concurrence, Marshall hedges his bets on whether the federal commerce power is exclusive or concurrent.  That was a matter the Taney Court would lay to rest on in Cooley v. Board of Wardens of the Port of Philadelphia (1852) when, unsurprisingly, that state-rights oriented tribunal opted for concurrent power.  That said, as I stressed six years after the book was published, traditional readings of Gibbons that deny any federal power to regulate matters of intrastate commerce ignore Marshall’s clear admonition that while “[t]he completely internal commerce of a State, then, may be considered as reserved for the State itself,” any bar on federal action extends only to those matters that “do not affect other States,” with federal action proper for “those internal concerns which affect the States generally.”  In particular, consistent with, but not expressly relying on M’Culloch, Marshall spoke of the need to avoid “interfering” with internal state matters, unless such actions comport with the “the purposes of executing some of the general powers of the government.”

            This was not a species of “aggressive” nationalism as that term was posited by Richard Ellis in his instructive but, to my way of thinking, flawed book on M’Culloch, or as David embraces and parses that phrasing.  It is, nevertheless, a far more robust Marshallian conception of federal power than is generally recognized and, as such, worthy of note.
            Finally, what of being in the right place, at the right time?  Virtually everyone recognizes that this was a key aspect of the Marshall’s tenure.  President John Adams did not turn to John Marshall as his nominee after an exhaustive search designed to find the single most qualified successor to Oliver Ellsworth.  Rather, he belatedly opted for Marshall because he saw in him a staunch Federalist who would do his best to protect and advance a Federalist quest to create and sustain a strong national government in the face of the looming Jeffersonian regime.  That happy accident, triggered by John Jay’s rejection of his already “advised and consented” return engagement as Chief Justice, proved to be a success precisely because Marshall possessed a wide variety of skills, not simply the “strong intellect” that Holmes acknowledged, but also the “good style” and “personal ascendance” that he implicitly derides.

            In a similar vein, Marshall’s opinion for the Court in M’Culloch is also a product of time and place in ways that have at least as much to do with the contexts and circumstances under which the case was decided as with the doctrines it embraces.  As I noted and stressed in my book, and have amplified and embraced with even more vigor in its wake, it is important to recognize that M’Culloch sustained the Bank at a critical juncture in it and the nation’s history.  In January, 1819, the Spencer Committee report laid out in excruciating detail the record of a Bank, and Bank administration, that was rife with mis-, mal-, and nonfeasance.  The Court ruled as it did in the depths of the Panic of 1819, an economic depression that laid waste to the lives and fortunes of a third of the nation’s population and that, in many quarters, was believed to be the fault of the Bank.
            Perhaps most importantly, given subsequent events, Marshall and his colleagues signed off on a robust theory of implied powers, and deference to congressional judgments about the wisdom of and necessity for federal initiatives, at the precise moment “the Missouri Question,” a.k.a, slavery, was front and center in Congress and Nation.  As Jefferson would subsequently stress in a letter to Albert Gallatin, M’Culloch posed a distinct threat to the institution of slavery.  This now became “merely a question of power,” for “if Congress once goes out of the Constitution to arrogate a right of regulating the condition of the inhabitants of the States, its majority may, and probably will, next declare that the condition of all men with the United States shall be that of freedom; in which case all the whites South of the Potomac and Ohio must evacuate their States; and most fortunate those who can do it first.  And so far this crisis seems to be advancing.”

            None of this detracts from what David has accomplished.  The Spirit of the Constitution is essential reading for those interested in both M’Culloch and the Court.  That said, I harbor some faint hope that I have provided an additional context or two within which to assess both some details of David’s his argument and the overall force of his conclusions.  I do remain Guilty as Charged, a champion of Marshall and M’Culloch, albeit one who continues to learn from the work of a new and gifted cohort of scholars and friends.

Mark R. Killenbeck is Wylie H. Davis Distinguished Professor of Law at the University of Arkansas School of Law. You can reach him by e-mail at mkillenb at

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