Monday, November 18, 2019

McCulloch v. Maryland: Not Only Right, But Inevitable

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).

Victoria Nourse

Don’t be fooled by the subtitle’s reference to John Marshall. David Schwartz’s eloquent and eminently readable book—The Spirit of the Constitution—is not simply a historical tour de force about an ancient case.   It’s a great rollicking roll through the history of McCulloch v. Maryland as an idea.   Even if you do not give a whit for 1787, think about perusing this book.   It is one stop shopping for those who want a history of two centuries of constitutional wrangling with federalism and whether Congress is limited to its “enumerated” powers.   

Let us not forget that the courts are still struggling with federalism in the year 2019.  Consider the strange fact that a federal court in 2018 concluded that Congress has no power to ban female genital mutilation, defined as torture by many international organizations.  Really, Congress has no power to ban the equivalent of castration?  Or consider the equally strange fact that at least one appellate judge, albeit in dissent,  concluded in 2017 that Congress has no power to ban hate crimes, like gay bashing.  Really, if Congress can ban everything from child labor to chemical weapons to lottery tickets and cows that cross state lines, can it not criminalize the killing of Jews in Pittsburgh or Hispanics in El Paso?  But, the truth is, as constitutionalists all know, the federal government cannot even ban lynching under the 14th amendment.  There is a perfectly respectable legal argument under the Supreme Court’s decisions in United States v. Morrison (2000) and United States v. Lopez (1995) that laws against female genital mutilation and hate crimes are unconstitutional since crime belongs to the reserved powers of the states.  

Schwartz’s book helps us understand the legal regime that has led us to this state of affairs. The basic tension lies between the idea of a Congress limited to “enumerated powers,” and one that may rely upon “implied powers,” as McCulloch appears to embrace.  The more specific problem, as Schwartz explains, is that recurring notions of states’ rights have caused the court to struggle with limits on Congress’s power.  Morrison and Lopez are simply the latest manifestations of attempts by the Supreme Court  to draw the line between Congress’s power and the states’ power.  These modern cases represent the anti-McCulloch strain in constitutional law, one which waxes and wanes over constitutional history.  As Schwartz writes:  “McCulloch has been interpreted, or ignored, to fit the varying spirits of the Constitution.”  

Although Schwartz’s work dives deep into the intellectual history of the Marshall Court in its early days, the book also has important things to say about modern federalism struggles.   Consider the book’s account of the canonical modern McCulloch moments: Heart of Atlanta and Katzenbach v. McClung (the “ollie’s barbecue” case). Every law student knows the story.   After one of the most heroic legislative moments in American history, the Congress passed the 1964 Civil Rights Act.   Rather than affirming the new anti-apartheid law under the Fourteenth Amendment, which would require it to reverse the 1883 Civil Rights Cases which, during Reconstruction, struck down anti-segregation legislation, the Supreme Court moved sideways, adopting a commerce clause rationale.   As Schwartz pungently notes (p. 234):  “The landmark 1964 Civil Rights Act is constitutional, not because of  ‘the equal protection of the laws,’ but because Congress has the power to regulate the sale of a barbecue sandwich.”  (emphasis added).

In this tale lies the seeds of today’s great battles about the limits of Congress’s powers to legislate against hate crimes, violence against women, or even female genital mutilation.  The Supreme Court’s decisions upholding the 1964 Act embraced a fiction.   Although liberals have idealized the case for its result, for those of us fighting contemporary wars about Congress’s power, its rationale represents a stark failure.    As Schwartz explains, by embracing the commerce power, the justices did not have to decide whether to overrule the 1883 Civil Rights Cases holding that Congress had no power under the 14th amendment to desegregate the South.  A future court—Morrison—would find it felicitous to resurrect the 1883 cases as good law on the question of “state action.”  With the 14th amendment rendered useless to support attacks on private hate crimes, one is left arguing based on the commerce clause.   Enter Lopez, which holds that the commerce power does cover criminal activity.   Schwartz’s lesson (updated to the present by me here): had the court embraced McCulloch more fully, or if it had embraced the 14th amendment more fully, we would not be in the odd situation we stand today, arguing about whether Congress has the power to ban the equivalent of torture.

 McCulloch was right, as Schwartz recognizes, because the Court deferred to Congress.   My own view is that the story of federalism in the Supreme Court is a story of judicial hubris.  The repetitive judicial nostrum that “there would be no line between the nation and the states” assumes that courts have the power to set such a line.  Given my experience up and down Pennsylvania Avenue and for more than a decade down the street from a state capitol in Wisconsin, I doubt that courts have that power.  No federalism standard created by courts can destroy the states.  To destroy the states would be to eliminate their political machinery, which is something no one thinks the court, Congress, or the President can or even wants to do. As numerous scholars of federalism know: the federal government needs the states.   The Supreme Court  imagines itself far more powerful than it is, an experiment that almost always ends in failure, for reasons recently explained by Any Coan, in his book Rationing the Constitution.   Once the Court tries to create a test of separate state and federal spheres, the court cannot apply it without unleashing a mass of litigation.  Take the aftermath of Morrison and Lopez:  as Brannon Denning and Glenn Reynolds have shown, Morrison unleashed a torrent of constitutional litigation, but until recently, the Morrison statute was virtually the only law that Lopez ever killed, as courts quickly settled back into a deferential posture toward Congress.   

McCulloch is not only right, it is inevitable.    Bravo to Schwartz for writing an extraordinary book on two hundred years of constitutional law.

Victoria Nourse is Ralph V. Whitworth Professor of Law at the Georgetown Law Center. You can reach her by e-mail at Victoria.Nourse at

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