Monday, November 11, 2019

Marshaling McCulloch

Richard Primus

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 terrific new book is subtitled John Marshall and the 200-Year Odyssey of McCulloch v. Maryland.  But the book is about much more than Marshall and McCulloch.  It’s about the long struggle over the scope of national power.  Marshall and McCulloch are characters in the story, but the story isn’t centrally about them.  Indeed, an important part of Schwartz’s narrative is that McCulloch has mattered relatively little in that struggle, except as a protean symbol.
Schwartz sees the Constitution, properly understood, as warranting a robust vision of national power.  The book’s studied ambivalence about the canonical status of McCulloch is partly a function of McCulloch’s capacity to retard as well as to advance national power, and thus to vindicate or repress the spirit of the Constitution, depending on who is using it.  In Schwartz’s view, McCulloch should be pressed into better service for its capacity to better vindicate the best view of national power.  But better yet would be for that view to be vindicated in a way that did not rely on the backward-looking, court-centered, Marshall-celebrating framework that is inextricably part of marching under the banner of McCulloch.

The appearance of the book is an important moment in the development of a new wave of literature arguing for expansive conceptions of national power and in particular for skepticism toward the orthodox account of Congress as a legislature limited by enumerated powers.  Schwartz’s fellow travelers in that literature include John Mikhail, Robert Reinstein, and, well, me.  This literature is not skeptical about federalism as such, and it doesn’t think that the national government should be able to act without limits.  But it doubts that the Constitution’s enumeration of congressional powers can or should do the limiting work that orthodox constitutional-law discourse assigns to it.  One of the targets of Schwartz’s book is accordingly the familiar idea that even without respect to affirmative limits like those articulated in the First Amendment, there are things that Congress lacks the authority to do, because its enumerated powers are collectively less than a grant of general jurisdiction.  In a delightful coinage, Schwartz calls this idea “the mustbesomething rule,” because it holds that there must be something that Congress cannot do, even before we start talking about affirmative prohibitions.  (I have previously called this idea the “internal limits canon,” a term with a decent rationale but none of the pizazz of Schwartz’s label, so I may be switching.)

            Schwartz thinks the mustbesomething rule is ill-conceived, and he thinks McCulloch provides a framework for understanding why.  But he is not arguing that Marshall deliberately wrote an opinion that would authorize plenary federal power, nor anything close to it.  Instead, the book presents Marshall in McCulloch as having practiced “defensive nationalism,” aimed more at resisting radical states’-rights views than at establishing a strong view of national power.  Seen in historical context, Schwartz writes, Marshall’s opinion is cautious on all of the truly explosive national-power issues of the day, notably slavery and internal improvements.  Much of the real action of nineteenth-century doctrines about federal power, in Schwartz’s view, was animated (and distorted, Schwartz would say) by judicial attempts to prevent Congress from being able to jeopardize chattel slavery in the states where it was practiced.  Not until after Emancipation (in particular, in the Legal Tender Cases) was McCulloch presented as authority for a significantly more robust nationalist vision, and Schwartz describes Justice Strong’s use of McCulloch in Knox as an exercise in entrepreneurial misreading, one that made more of McCulloch than McCulloch made of itself.  But the post-Civil War Court did not want to embrace McCulloch’s nationalism fully, because that would have opened the door to expansive exercises of congressional power under the Reconstruction Amendments, which the Court was determined to avoid.  (Again, the specter haunting the construction of congressional power is the need to insulate racial hierarchy against potential reform; Schwartz’s thoroughly critical diagnosis of the Court here reads like cold water dumped on Larry Lessig’s recent rehabilitative account in Fidelity and Constraint.)  Only in the 1940s did Chief Justice Stone resuscitate the nationalist use of McCulloch, with assists from historians Thomas Reed Powell and Charles Beard.  And this time, the Court was about to embrace congressional efforts to combat racial discrimination, so the powerful force that blocked that possibility earlier in history was finally turned in the other direction, and the nationalist reading of McCulloch could have staying power.

            Schwartz is not the first to see the modern, nationalist view of McCulloch as a creature of the mid-twentieth century.  But what follows in Schwartz’s telling is an argument that even after the New Deal, judicial doctrine has subordinated the robust national-power view that McCulloch might represent to a more restrictive view associated with a different Marshall decision: Gibbons v. Ogden.  The key difference between the two frameworks, Schwartz explains, is the difference between associating Congress’s broad, post-New Deal legislative jurisdiction with the Necessary and Proper Clause (per McCulloch) and associating it with the commerce power as such (per Gibbons).  Schwartz reads the modern Court from Wickard to Gonzales v. Raich as favoring the Gibbons paradigm.  And that choice had bite, Schwartz says, in the greatest 21st-century mustbesomething case: NFIB v. Sebelius.  Chief Justice Roberts’s argument that a law creating (rather than regulating) commerce cannot be justified as necessary and proper for the execution of an exercise of the commerce power makes sense, Schwartz argues, only if the scope of congressional power under the Necessary and Proper Clause is limited by the terms of whatever other power it is invoked to support—here, the commerce power.  And that sort of transferred limitation would make sense on a Gibbons view, where the question is ultimately whether the commerce power gives Congress the authority at issue.  But on a robust McCulloch view, Congress is entitled to do things that are in no way regulations of commerce, so long as they’re practically helpful for other things that are regulations of commerce.  Naturally enough, Schwartz prefers the necessary-and-proper framework, understood as the more expansive of the two because it overtly authorizes Congress to regulate things that are not commerce.
            Schwartz’s careful teasing apart of the McCulloch and Gibbons strands of doctrine over time is one of the book’s excellent contributions to the literature.  And the book makes a compelling case, I think, that McCulloch’s has been the more expansive framework through most of history.  But to the extent that the project here is not just understanding the past but also setting up the future, it is worth wondering whether the relationship between the two ways of thinking might shift, or might already have shifted.  In recent times, the Supreme Court opinion that most thoroughly nails the analytic difference Schwartz is excavating here is Justice Scalia’s concurrence in Gonzales v. Raich.  Unlike the Court majority, which regarded congressional authority to prohibit the growing of medical marijuana as within the commerce power, Scalia located the relevant provision of law firmly under the Necessary and Proper Clause.  And at least as much as any Justice, it was Scalia who understood the limiting potential of deeming exercises of power to occur under the Necessary and Proper Clause rather than under clauses with their own substantive content, because a non-deferential Court will make up its own mind about whether a given action is “improper.”  (Shutting down medical marijuana was proper, but directing sheriffs to do background checks was not.)  So as long as the judiciary remains willing in Commerce Clause cases to respect formal jurisdictional hooks like the one in the reenacted Gun Free School Zones Act, federal legislation might find safer haven in substantively obtuse formalisms deployed within the Gibbons paradigm than in the world of normative judgment that awaits under the Necessary and Proper Clause.  And in the highest-stakes cases, one might be skeptical that the choice of doctrinal framework will matter: perhaps the decision will depend, as someone once said, on a judgment or intuition more subtle than any articulate major premise.

            The largest potential impact of this book, then, does not flow from its perspicacious reconstruction of this or that doctrinal framework, whether in the modern jostling between Gibbons and McCulloch or in its treatment of various nineteenth century struggles over the scope of implied powers—though those would be enough to make the book worth reading.  It is rather a matter of the book’s gestalt capacity to contribute to the potential reshaping (Schwartz might say correcting) of the big-picture constitutional worldview that law students absorb.  If readers come away with the sense that constitutional authorities (judicial and otherwise) have been read in cramped ways in order to avoid letting Congress exercise the full sweep of power that the Constitution warrants, they will be moved incrementally toward Schwartz’s view of the spirit of the Constitution. 

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