David
Schwartz
Kurt
Lash is a superb constitutional historian trapped inside the body of an
originalist. He is one of the few originalists bold enough to acknowledge that McCulloch
v. Maryland needs to be ejected from the (conservative) originalist canon
of great constitutional cases. While he attributes to me an intention “not to
praise the mythological McCulloch, but to bury it,” it is Lash who seeks
to bury McCulloch, which he views as a fraudulent “story of our constitutional
origins.”
Characteristically,
Lash’s debatable conclusions and interpretations are accompanied by keen and
erudite historical insight. The centerpiece of Lash’s post is an implicit
debate between John Marshall and St. George Tucker, the William and Mary law
professor, judge, and author of the first major treatise on American
constitutional law. For Lash, Marshall channels the nationalist view of broadly
construed national powers, whereas Tucker advocates “Tucker’s rule,” requiring
that the Constitution “be construed strictly, in all cases where the antecedent
rights of a state may be drawn in question.”
In
McCulloch, of course, Marshall prefaces his analysis of implied powers
with a brief rejection of “compact theory,” the view that the Constitution was,
like the Articles of Confederation, essentially a treaty among sovereign
states. Marshall instead embraces a “nationalist” vision of the Constitution’s
essence in which the people of the United States, rather than the states,
ratified the Constitution, meeting in
state conventions solely for convenience. As Marshall asked rhetorically, “Where
else should they have assembled?”
Every
Con Law professor who teaches McCulloch explains this conflict between
nationalist and compact theory, so that much is well known. But Lash adds a new
layer. Marshall claims that he only mentions compact theory because Maryland’s
counsel “deemed it of some importance.” Lash argues that Marshall thereby
“feigned ignorance” both of the true expositor of compact theory (Tucker), and of
its true importance to the case. “Tucker’s rule” would presumably have required
a robust application of the Tenth Amendment by construing congressional powers
narrowly in all cases where the states’ reserved powers “may be drawn in
question”—that is to say, all cases of implied powers. “Tucker’s rule” was not
therefore “of some importance,” to the McCulloch decision, but of central
importance: Tucker’s rule is the antithesis of “McCulloch’s rule” that
implied powers should be broadly construed to promote the effective operation
of the national government.
Lash
convincingly argues that Marshall felt compelled to address and reject Tucker’s
rule in McCulloch and that Marshall
used “Maryland’s counsel” as a stand-in for Tucker, who was an influential
constitutional theorist. Moreover, as Lash points out, Madison came around to
views similar to Tucker’s by the time of the Virginia and Kentucky Resolutions
of 1798. When Marshall penned the McCulloch opinion in 1819, Lash
astutely observes, “It would have been politically
scandalous to directly criticize the work of James Madison and his influential
1800 Report on the Virginia Resolutions.” Lash
provides no direct evidence of Marshall’s motivation to rebut Tucker beyond the
fact that Marshall and Tucker were “fellow Virginian[s].” But Lash’s inference
has to be right. Marshall had studied law at William & Mary with Tucker’s
predecessor, the renowned George Wythe, and it would be a simple matter to show
personal and professional connections between Marshall and Tucker in the small
circle of Virginia political and legal elites. As I show in my book, Marshall
was deeply concerned, if not obsessive, about answering the views of his
Virginia opponents—hence his pseudonymous editorials defending McCulloch in the spring of 1819.
Lash
thus enriches our understanding of McCulloch
and its context in intellectual history. Lash shows that the Jeffersonian
“strict necessity” test for implied powers had more substantial backing than
that of Maryland’s counsel Luther Martin, the cantankerous old anti-federalist.
(The “strict necessity” test held that implied powers were limited to those
without which the enumerated power would be “nugatory.”) Lash’s post can also
shed new light on Gibbons v. Ogden, where Marshall again seemed to
tangle with an unnamed Tucker. There, Marshall oddly changed his tune about the
Constitution’s source, describing it, not as the product of the people
themselves, but of the states—“these allied sovereigns [who] converted their
league into a government.” While more compatible with Tucker, this version of
an origin story did not entail that the powers of Congress “ought to be
construed strictly.” Rather, Marshall argued, there was not “one sentence in
the constitution which gives countenance to this rule.” Gibbons v. Ogden,
22 U.S. 1, 187 (1824). Thanks to Lash, we can infer that “this rule” rejected
by Marshall is Tucker’s rule.
Lash
is less convincing when he takes off his historian hat and puts on his
originalist hat. Lash chides me for being “never completely clear” on what I
think is “the correct reading of the Constitution.” But I take it as praise,
rather than criticism, that I did not reduce the ongoing 230-year conflict over
federalism to a single “correct reading of the Constitution.” I certainly
believe that there is a “better” reading.
That the Constitution empowers the national government to address all
national problems is both historically justifiable and normatively
superior to its alternative. That alternative, “enumerationism,” is the
Jefferson-Jackson-Taney-Carter Coal-Morrison-NFIB view that we must on
occasion let national problems go unaddressed in order to demonstrate to ourselves
that we are more committed to the ideology of limited enumerated national
powers than we are to the preamble’s purposes of promoting justice and the
general welfare of the nation.
Lash
insists that Tucker’s rule supplies the “correct” (originalist) reading of the
Constitution, requiring that federal powers be narrowly construed whenever they
touch on reserved state powers. By rejecting Tucker’s rule and compact theory,
Lash argues, Marshall tries to “reshape the story of our constitutional
origins” by turning it into a mythical, nationalist one. But at this point, Lash
offers a competing myth of his own. He relies heavily on James Madison’s
mythical reputation as “father of the Constitution” to claim that Madison’s
belated, politically motivated adoption of compact theory in the late 1790s is
the true “original meaning” of the Constitution. In doing so, Lash ignores
Madison’s earlier views in the Framing and ratification periods, that the
national government’s powers were not ceded by the states, but were instead derived
directly from the people, who redistributed powers from the states to create a
national government with supremacy over the states. (Recall Madison’s cherished
proposal at the Convention for a national legislative veto over all state laws.)
Lash’s constitutional origin story also asks us to ignore the views of George Washington,
James Wilson, Gouverneur Morris, and indeed the dominant majority of the 1787 Convention;
the ratification debates over federal power, the Federalist party, Daniel
Webster, Henry Clay and the national Republicans -- in short, one entire side
of the debate over national powers that began with the founding and has been,
in Marshall’s words, “perpetually arising.” To read Tucker’s rule as the sole “original”
and therefore “correct” interpretation of the Constitution’s grant of powers to
the national government is to read half of constitutional history out of
history.
Lash
argues that my “almost single-minded focus on implied power” somehow feeds a
particular “myth of McCulloch”—presumably the New Dealers’ sometime insistence
that broad federal power was the correct original meaning of the Constitution. Of
course, Tucker’s rule is also primarily, if not single-mindedly, focused on the
theory of implied powers, which is indeed the centerpiece of McCulloch. But, importantly, McCulloch didn’t invent the theory of
implied powers, which was the subject of heated debate during ratification and
was relied on heavily in the First Congress and in the debates over the First
Bank of the United States. Marshall was not “reshaping” this aspect of the
Constitution’s origins, as Lash asserts, but merely recapitulating it.
Historian
Lash knows this, and it’s hard, even for Originalist Lash, to keep a good
historian down. Tucker’s rule, Lash admits, became “the dominant theory of the
Constitution” only at “the election of 1800”—not at the founding. And Lash
concedes that “One could, of course, argue that
Madison and Tucker were spinning myths when they described the Constitution as
a dual-federalist compact.” Yes, one could. They were. And originalists are
spinning myths when they claim that there is a simple “origin story” of the
Constitution that can compel a single “correct” reading of the Constitution’s
most contested elements.
David S. Schwartz is Foley & Lardner-Bascom Professor of Law at the University of Wisconsin Law School. You can reach him by e-mail at dsschwartz at wisc.edu