Franita Tolson
I am thankful
for the opportunity to review Professor David Schwartz’s really thoughtful and
incisive critique of McCulloch v. Maryland. The book is a creative and masterful
reinterpretation of a decision that I thought I knew well, but I learned a lot
of new and interesting facts about McCulloch and the (sometimes frosty) reception
that the decision has received over the course of the last two centuries. Professor Schwartz persuasively argues that modern
views of McCulloch as a straightforward nationalist decision that has
always had a storied place in the American constitutional tradition are flat
out wrong. The Spirit of the
Constitution shows that the meaning of McCulloch and its use as
precedent by both the Supreme Court and Congress has been much more fraught and
complex than the scholarly literature has appreciated.
For this
symposium, I would like to focus my comments on Professor Schwartz’s views
regarding the relationship between the Necessary and Proper Clause and the
enforcement provisions of the Thirteenth, Fourteenth, and Fifteenth
Amendments. According to Professor
Schwartz, very few representatives in the Reconstruction Congress explicitly
cited McCulloch to explain the meaning and scope of those provisions of
the Reconstruction Amendments that give Congress the power to enforce their
terms through “appropriate legislation.” Subsequent to the adoption of the Amendments, however,
many representatives argued that McCulloch’s holding regarding the
Necessary and Proper Clause was a proper interpretation of what constitutes
“appropriate legislation” under the enforcement provisions. Although the link between McCulloch
and the enforcement provisions was not extensively debated during the
ratification and adoption of the Reconstruction Amendments, Professor Schwartz
argues that the issue of McCulloch’s influence on what is appropriate
under the Reconstruction Amendments is “academic” because “[t]he Necessary and
Proper Clause empowers congress make ‘necessary and proper’ laws to execute
powers granted anywhere in the Constitution, not just the ‘foregoing powers’ in
Article I, section 8. It therefore
applies to the enforcement provisions of the Reconstruction Amendments.” (129)
The notion that
the McCulloch standard applies to the enforcement provisions of the
Reconstruction Amendments is a view that the Supreme Court had endorsed at one time, and that some scholars continue to endorse.
Rather than viewing McCulloch as a guide to understanding what
legislation is appropriate, however, Professor Schwartz instead applies the Necessary
and Proper Clause to the Reconstruction Amendments, rendering Congress’s explicit
power to enforce the Amendments through “appropriate legislation”
redundant. According to Professor
Schwartz, “Anyone who views McCulloch as the correct interpretation of
implied powers under the Necessary and Proper Clause should therefore conclude
that ‘the McCulloch standard’ governs the enforcement clauses of the
Reconstruction Amendments, whether or not the framers of those amendments had McCulloch
in mind. The ‘appropriate legislation’
tag is likewise immaterial, since the Necessary and Proper Clause calls for
appropriate implementing legislation for all grants of legislative power. As an authoritative precedent interpreting
the Constitution, McCulloch was already constitutionalized.” (129) Instead, Professor Schwartz attributes the
need for enforcement provisions written into the Reconstruction Amendments as
“demonstrat[ing] McCulloch’s lack of influence on the Supreme Court at
that time” and the Reconstruction Congress’s fear of “states’-rights
backsliding by the Court in reviewing Reconstruction enforcement legislation.”
(130)
While I agree
with Professor Schwartz that these considerations undoubtedly motivated the
Reconstruction Congress’s decision to include enforcement provisions in the
Amendments, I nonetheless resist his characterization of the relationship
between these provisions and the Necessary and Proper Clause. Even if Congress legitimately feared an
unsympathetic Supreme Court, there are two problems with an argument about the
relationship between the Necessary and Proper Clause and the enforcement
provisions of the Reconstruction Amendments that would render the latter
redundant as a practical matter.
First, the
presence of an enforcement mechanism within a particular constitutional provision
helps illuminate the provision’s scope and meaning, which is not necessarily
true when Congress turns to the Necessary and Proper Clause as a supplement. The Reconstruction Amendments not only
contain open-ended terms like due process, equal protection, and right to vote,
but Congress’s power to enforce their terms is substantively different from other
grants of legislative authority that the Necessary and Proper Clause explicitly
supplements, such as the Commerce Clause.
Take, for
example, Section 2 of the Fourteenth Amendment.
One may view Section 2, which allows Congress to reduce a state’s
delegation in the House of Representatives for abridging the right to vote, as
a clear rule. But the language of
Section 5 of the Fourteenth Amendment, the terms of which give Congress the
power to enforce all of the Amendment’s substantive provisions through
“appropriate legislation,” suggests that the language of Section 2 might be more of a standard than a rule. Section 2’s reference to the “right to vote”
incorporates the laws of fifty different state constitutions setting out voter
qualification standards, suggesting that “appropriate legislation” might
require something other than enforcing the penalty. Section 2, already expansive because what constitutes
an abridgment or denial is not limited by considerations of race or
partisanship, also became substantially broader after the Supreme Court
determined that the Equal Protection Clause required that the right to vote
under state law comport with new federal constitutional requirements. Section 1’s prohibition on poll taxes, for example, automatically means that
the poll tax is a practice that abridges or denies the right to vote under
Section 2. Likewise, an unreasonable residency requirement, found to be a violation of Section 1,
similarly abridges the right to vote under Section 2. Finally, in thinking through the range of
appropriate penalties to address these violations, Congress can abrogate state
sovereign immunity under the Reconstruction Amendments even if it cannot do so under the Commerce
Clause.
Thus, one
cannot consider the scope of Congress’ authority to enforce the Fourteenth
Amendment, particularly with respect to voting rights, without viewing that
provision through the lens of Congress’s authority to enforce all of its moving
parts. The presence of Section 5 not
only facilitates this analysis but encourages it. Rather than the phrase “appropriate”
legislation reflecting “a type of redundancy to underscore a quality presumed
to be inherent in the modified noun,” as Professor Schwartz contends, the
addition of the “appropriate legislation” language is a more specific signal about
what is “appropriate” for purposes of the Fourteenth Amendment. (126) In this
context, “appropriate” legislation to enforce Section 2 might be penalties
other than reduced representation to further the aims of both Sections 1 and 2. This conclusion might be less apparent if one
had to rely on the Necessary and Proper Clause alone, which does not invite
this sort of granular, intratextual analysis.
The presence of Section 5 helps to illuminate the relationship between
the provisions—and congressional power to enforce them— within the four corners
of the Fourteenth Amendment.
The other risk
of viewing the enforcement provisions as redundant is that it obscures that the
Necessary and Proper Clause is not only about enlarging the scope of a specific
enumerated power, but the Clause also provides a link between enumerated
powers. In McCulloch, Chief
Justice Marshall found that Congress’ had broad authority to charter a bank when
acting pursuant to its enumerated powers.
But he comes to this conclusion without specifying the degree to which
each power that he identified—Congress’s ample authority “to lay and collect taxes;
to borrow money; to regulate commerce; to declare and conduct a war; and to
raise and support armies and navies”—was the basis for the constitutionality of
the bank. Professor Schwartz emphasizes
that McCulloch was vague about which enumerated power justified the
chartering of a Bank, holding only that the Necessary and Proper Clause
enlarges the means that Congress can adopt to enforce a specific enumerated
power. In his view, “McCulloch is
conventionally read to mean that an implied power must be derived from
specified enumerated powers but Marshall never clearly identified the
enumerated powers from which he derived the implied power to incorporate a
bank.” (49)
But it is
entirely possible that all of the powers that Chief Justice Marshall
listed served as predicate authority for the Bank. Just as the enforcement provisions can serve
as mini-Necessary and Proper Clauses for each Reconstruction Amendment, shedding
light on the relationship between provisions within a clause, the Necessary and
Proper Clause of Article I can serve as the glue between constitutional provisions,
justifying the aggregation of constitutional power arising from multiple
sources of authority to enact much needed legislation. Thus, legislation that is an appropriate exercise
of power under multiple provisions, as in the case of the Bank of the United
States, is not necessarily appropriate when Congress seeks to advance the same
legislation pursuant to just one source of power. In other words, McCulloch is a
Commerce Clause case as well as a Taxing and Spending case, a War powers case,
and so on, and the bank is a necessary and proper means of advancing all of
these powers, collectively.
This view
of the Necessary and Proper Clause is consistent with Congress’ practice of sometimes aggregrating its
authority, relying on not one but multiple sources of power to enact
legislation. The Court has, on occasion,
been deferential to Congress in these circumstances, even if Congress was
not always explicit about the constitutional authority pursuant to which it was
acting. In Katzenback v. Morgan, for example, the Court upheld Section
4(e) of the Voting Rights Act, which prohibits literacy tests as a precondition
for voting as applied to individuals from Puerto Rico who have completed at
least the sixth grade, as an appropriate exercise of Congress’s authority to
enforce the Fourteenth Amendment. The Court sustained Congress’s ban on
literacy tests, even though an earlier court decision found these tests to be
constitutional as a general matter, and Congress made no evidentiary findings
that literacy tests were being used in a racially discriminatory manner. The Court was willing to defer to Congress
because of the myriad provisions that the Court identified as potential sources
of authority for section 4(e)—ranging from the treaty power to the Territorial
Clause of Article III—even though Congress did not explicitly rely on any of
these provisions in enacting the legislation.
At the very
least, Katzenbach illustrates that
the presence of multiple sources of constitutional support has some relevance
to the inquiry into the scope of congressional power, a position that received
the Court’s full-throated endorsement in McCulloch
v. Maryland and, later, the Legal Tender Cases.
Had the Supreme Court continued to endorse this view of congressional
power, one of its most controversial decisions would have arguably come out
differently. In Shelby County v.
Holder, the Court, in invalidating Section 4(b) of the Voting Rights Act of
1965, focused on the question of whether the Act was an appropriate exercise of
authority under the Fourteenth and Fifteenth Amendments. Together, Sections 4(b) and 5 required
certain jurisdictions with terrible voting rights records to preclear all
changes to their election laws with the federal government before those changes
could go into effect. In assessing the
legislative record, the Court concluded that Congress did not compile a
legislative record of intentional discrimination sufficient to justify the
coverage formula as appropriate legislation under these provisions.
The Court
ignored that the coverage formula arguably could have been sustained under some
combination of the Fourteenth and Fifteenth Amendments and the Elections
Clause, which allows Congress to regulate federal elections in the absence of
intentional discrimination. Even if the
power that Congress has to enforce each of these Amendments, standing alone, was
insufficient to support the Act, the aggregate of these provisions, when
combined with the Elections Clause, was more than sufficient to justify the
scope of the coverage formula as a necessary and proper means of executing
these powers. As I have argued in prior work, the Elections Clause, unlike the
Fourteenth and Fifteenth Amendments, is not constrained by federalism concerns
and allows Congress to make or alter state legislation at will. The Court arguably could have conceived of
the Necessary and Proper Clause as a link between the Elections Clause and the
Reconstruction Amendments, an approach that would permit the Court to assess congressional
power over elections comprehensively and assess the legislative record in light
of this broad authority.
Reading the
Necessary and Proper Clause as a means of both furthering a specific enumerated
power and allowing Congress to aggregate its authority under multiple clauses
would solve a core problem presented by Professor Schwartz’s reading of the
Reconstruction Amendments. There is a
unique relationship between the Amendments’ substantive and enforcement
provisions that the Necessary and Proper Clause cannot capture because the
enforcement provisions themselves inform the meaning of the relevant substantive
provisions. In addition, the Clause has
a broader purpose than simply furthering the scope of an enumerated power, a
fact that gets lost when the Clause is blindly applied to all grants of
legislative authority. The Clause is
also about the relationship across provisions, a view of the Necessary and
Proper Clause that is extremely nationalistic and might also explain the
Clause’s desuetude in the years following McCulloch. Thus, the Chief Justice’s failure in McCulloch
to indicate which of the aforementioned powers, standing alone, support the
Bank could be attributed to the fact that all of these enumerated powers, in
the aggregate, served as the basis for Congress’s authority to charter the
bank. The Necessary and Proper Clause provides
the link between these enumerated powers, broadening the universe of means that
Congress can rely on to further these constitutionally endorsed ends.
Franita Tolson is Vice Dean for Faculty and Academic Affairs, and Professor of Law at USC Gould School of Law. You can reach her by e-mail at ftolson at law.usc.edu