John Marshall, McCulloch v. Maryland, and 'we the people': revisions in need of revising.

• Author: Flaherty, Martin S.

John Marshall may not have been Shakespeare, but he remains our closest judicial equivalent. Two hundred years after his rise to Chief Justice, no American jurist remains so studied, interpreted, reinterpreted, debated, and invoked. (2) Even debates about the twists and inevitability of Marshall's reputation have Shakespearean counterparts. (3) In one further parallel, the work of each writer furnishes a wealth of quotations that are so entrenched in their respective cultures that it is often forgotten that each writer provided the sources in the first place--at least, that is, until they are reencountered at symposia such as this. As with Shakespeare's "major" plays, this last phenomenon is especially true of Marshall's "great" cases such as Marbury v. Madison (4) and McCulloch v. Maryland, (5) several passages from which have literally been carved in stone as reminders at the justices' version of "poet's corner" in the crypt-like basement of the Supreme Court.

One passage from McCulloch, too long to carve, famously raises an issue that is not logically necessary to any part of the opinion, but which nonetheless poses perhaps the most basic question of constitutional law:

In discussing this question [concerning the constitutionality of the Bank of the United States], the counsel for the state of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent states. (6) Employing the type of understatement that reflects utter certainty, Marshall had no doubt about the answer:

It would be difficult to sustain this proposition.... From these conventions [held in the states], the constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established," in the name of the people; and is declared to be ordained, "in order to form a more perfect union, establish justice, insure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity." The assent of the states, in their sovereign capacity, is implied, in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. (7) Within the legal world, Marshall's ostensibly nationalistic analysis has been taken to mean pretty much what it appears to say. As one commentator puts it, "To Marshall, the sovereign was hardly the states--it was `We the People.' It was `We the People' who ordained and established the Constitution, not `We the States.'" (8) This view by definition denies that the Constitution resulted from an agreement or compact among the states. The usual--and critical--corollary that follows holds that the national populace erred on the side of according power to the national government at the expense of the states, as McCulloch appears to indicate. At the very least, the idea of a unitary founding people has given rise to a presumption that federal rather than state claims should prevail in areas of modern constitutional controversy. (9)

These nationalistic readings of Marshall in turn corresponded with a nationalistic interpretation of the Founding itself. Never, in fact, had Marshall's apparent views appeared more solid than in light of historical scholarship of the past few generations, including pathbreaking work by Bernard Bailyn, Lance Banning, Forrest McDonald, Edmund S. Morgan, Jack Rakove, John Phillip Reid, and Gordon Wood, to name a few. (10) This work in particular has done much to recapture the Founding's understandings--indeed, reinvention--of popular sovereignty and the national government. Almost any historian who ventured into the world of law and encountered Marshall's account would likely have viewed it as a sort of Emanuel's version of recent historiography--a bit too simplified, perhaps, but user-friendly and essentially right.

Recently, however, all this has come under challenge. Ironically, revisionism has issued less from law schools or history departments (11) than from Marshall's own former home at the Supreme Court itself. The past decade's well known "federalism", or "states' rights," (12) cases have proceeded in lockstep with accounts about the nation's origins that are almost as state-oriented as the results they announce. More nuanced though nonetheless state-oriented claims have in the meantime come from important scholars. (13) At its most unconventional, the case law in particular asserts the proposition that it really was "the states, in their sovereign capacity," that established the Constitution. With this alternative creation myth comes an alternative presumption against controverted assertions of federal power and for claims of state privilege. (14)

This trend has gone so far that one Justice has attempted to lay claim to Marshall himself. Not long ago, Justice Thomas forcefully argued that both a closer and more contextual reading of McCulloch reveals that Marshall's identification of the popular sovereign was not so nationalistic as legend has it. (15) On his view, not only is the conventional account of the Founding wrong, but so too is equating that account with John Marshall. Despite McCulloch's own nationalistic result, moreover, Thomas and his fellow dissenters cash out Marshall's position on the creators of the Constitution to further support an interpretive presumption for state rather than Federal authority. Thomas's reinterpretation fell just one vote shy of becoming the modern Supreme Court's understanding of the Marshall Court's understanding of who established and ordained the Constitution. The state-oriented presumption that Thomas's reinterpretation inevitably furthers, however, survives and thrives in the Court's continuing line of "states' rights" decisions. (16)

This Article argues that this latest attempt to revise Marshall is wrong for the right reasons. Against the conventional wisdom, Justice Thomas not only correctly reads Marshall as resisting the idea that a single, consolidated American people created the Constitution, but that he actually fails to do justice to his own thesis. That said, Thomas and his fellow revisionists still err in concluding that the less-nationalistic creation myth that results presumptively benefits the state governments rather than federal authority. As if all this were not counterintuitive enough, this Article finally suggests that the general Founding understanding of who created the Constitution may well prove to be closer to the nationalist misunderstanding of Marshall's position than to his actual, more state-oriented beliefs.

Part I provides the modern and analytic background. It begins by demonstrating how determining just who the founding popular sovereign was has become nearly as important now as it was during Marshall's day, and for similar reasons. Almost invariably, the answer given to the question of "founding popular sovereignty" (17) is a good predictor of the doctrinal positions that will result. The question's newfound importance issues--sometimes consciously and sometimes not--directly from the Court's recent "states' rights" jurisprudence. Conscious grapplings with the issue reveal at least three positions along a national/state spectrum. Nationalists, not surprisingly, argue for the position that a single, national "We the People of the United States" established the Constitution. "States' rights" advocates, in contrast, assert that the Constitution sprang from "We the States." In between, others stake out the position that it was "We the Peoples" of the respective states who created the new government. Insofar as this position, too, denies the unity of the founding populace, state defenders have laid claim to this position as well. As this part will note, strict logic indicates that none of the holdings in recent case law turns on which of these positions prevail, anymore than in McCulloch itself. This part will conclude, however, that the common sense connection between a given creation myth and a given set of results has long made strict logic beside the point.

Part II considers the renewed debate over Marshall's own positions with regard to both who established the Constitution and what presumptions should result. As noted, the conventional wisdom has held that Marshall was the iconic defender of the "We the People" view, nowhere more so than in McCulloch's account of popular sovereignty. When, however, Justice Kennedy recycled the mundane point in Term Limits, (18) Justice Thomas countered with an ostensibly more rigorous reading seeking to locate Marshall at least in the "We the Peoples" camp.

Part III looks past this dispute to recapture Marshall's own thinking. Casting the net even more widely confirms not only Thomas's revisionism, but that the previously indisputable nationalist view is simply untenable. Yet this part also demonstrates that Thomas and his fellow dissenters incorrectly assumed that any version of a multiple Founding must redound to the benefit of the states. The basic error lies in placing too much emphasis on state boundaries and too little on the states' conventions. Though the revisionists acknowledge that the conventions, as "the people" of the states, differed from the states, in the sense of the state governments, they miss the distrust of those state governments that the use of conventions reflected. Put another way, the Thomas view wrongly privileges geography over the experience that Founders such as Marshall had that prompted them to respond to the vices of the states to begin with.

Looking back, this Article concludes with a final twist suggesting that Marshall's understanding of the Founding may actually have...