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.