Mcculloch v. Maryland and the Incoherence of Enumerationism

PAPERS

McCulloch v. Maryland and the Incoherence of

Enumerationism

DAVID S. SCHWARTZ*

ABSTRACT

The theory and jurisprudence of American federalism remains a muddle.

The Supreme Court has never managed to settle three intertwined jurispru-

dential questions of federalism: (1) Can an effectual national government

with implied powers be meaningfully limited to a set of enumerated powers?

(2) Can the Tenth Amendment’s concept of reserved state powers be pre-

sumptive, or meaningfully specif‌ied under a system of implied national

powers? (3) Can the state governments meaningfully be called “sovereign”

in either of the two distinct senses usually meant? The ideology of “enumer-

ationism”—that the Constitution creates a national government of limited

enumerated powers—answers these questions “yes.”

But McCulloch v. Maryland answered these questions “no” and is therefore

at odds with enumerationism. A limiting enumeration is incompatible with

McCulloch’s conception of a grant of implied powers necessary for an effective

national government that can address national problems without reliance on

the states. McCulloch clearly rejected the various versions of implied powers

that were aimed at preserving a limiting enumeration. Moreover, as McCulloch

makes clear, a system of implied national powers cannot be reconciled with

“reserved” state powers having any def‌inable content. Implied powers can

grow and change with new circumstances and new legislative ideas, and there-

fore cannot be specif‌ied in advance, making it impossible to specify a “reserve”

of state powers that excludes federal regulation. Finally, McCulloch recognized

that federal supremacy necessarily makes the states “subordinate governments”

that lack the power to block prima facie federal powers, whether express or

implied. McCulloch thereby rejected the idea that state sovereignty is either a

power to resist federal implied powers or a mirror image of a limiting enumera-

tion of federal power.

* Foley & Lardner-Bascom Professor of Law, University of Wisconsin Law School. © 2021, David

S. Schwartz. I am grateful to the following colleagues for their insightful comments: Andrew Coan,

Anuj Desai, Alexandra Huneeus, Heinz Klug, Ion Meyn, Yaron Nili, Miriam Seifter Susannah Tahk,

Nina Varsava, and Rob Yablon; and to the participants in the Sixth Annual Salmon P. Chase Lecture &

Colloquium: Stephanie Barclay, Pamela Brandwein, Jud Campbell, William Carter, Nathan Chapman,

Laura Donohue, Mary Dudziak, Erica Goldberg, Tara Grove, Shon Hopwood, Alison LaCroix, Sandy

Levinson, Eric Lomazoff, Gerard Magliocca, Julia Mahoney, John Mikhail, Victoria Nourse, Farah

Peterson, James Pfander, Brad Snyder, Lawrence Solum, Ilya Somin, Jeremy Telman, William Treanor,

Amanda Tyler, Kevin Walsh and, especially, Randy Barnett.

25

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

I. MCCULLOCH AND THE SELF-CONTRADICTION OF ENUMERATIONISM 30

A. McCulloch and Enumerated Powers . . . . . . . . . . . . . . . . . . . 31

B. The Implied Powers Problem. . . . . . . . . . . . . . . . . . . . . . . . . 34

II. DISENTANGLING IMPLIED POWERS: SEVEN THEORIES . . . . . . . . . . . 40

A. The Rejected Theories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

1. The Jeffersonian Strict Necessity or Nugatory Test . . . . . 41

2. The Best Means Test. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

3. The Ordinary or Natural Means Test . . . . . . . . . . . . . . . . 44

4. Madison’s Great Powers Test . . . . . . . . . . . . . . . . . . . . . 45

B. Three Interpretations of McCulloch’s Theory of Implied

Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

1. The Rational Basis Test . . . . . . . . . . . . . . . . . . . . . . . . . 51

2. Structure, Synergy, or Sovereignty . . . . . . . . . . . . . . . . . 52

3. A General Welfare Power. . . . . . . . . . . . . . . . . . . . . . . . 55

C. Sum-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

III. MCCULLOCH, RESERVED STATE POWERS, AND STATE

SOVEREIGNTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

A. Implied Powers and Reserved State Powers as Inversely

Related . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

B. The Smashed Atom of State Sovereignty . . . . . . . . . . . . . . . . . 60

1. State Sovereignty as a Power of Resistance . . . . . . . . . . . 63

2. State Sovereignty as a Ref‌lection of Enumerationism . . . 65

C. Sovereignty and Reserved Powers in McCulloch . . . . . . . . . . 67

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

INTRODUCTION

The theory and jurisprudence of American federalism remains a muddle. The

Supreme Court has never managed to settle three intertwined jurisprudential

26 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:25

questions of federalism. (1) Can an effectual national government with implied

powers be meaningfully limited to a set of enumerated powers? (2) Can the Tenth

Amendment’s concept of reserved state powers be presumptive or meaningfully

specif‌ied under a system of implied national powers? (3) Can the state govern-

ments meaningfully be called “sovereign” in either of the two distinct senses usu-

ally meant? These three questions are all answered “yes” under the ideology of

“enumerationism”—that the Constitution creates a national government of lim-

ited enumerated powers.

1

Strikingly, these three questions were addressed and answered “no” in

McCulloch v. Maryland.

2

Although I continue to f‌ind that canonical opinion

deeply ambiguous in many respects, and although the opinion itself acknowl-

edges that questions regarding the scope of federal powers are and will be “per-

petually arising,” the core of the decision is clear enough. Congress has implied

powers whose scope is limited only by the bounded reasonableness of congres-

sional policy judgments, rather than by a compulsion to effectuate limits on the

enumerated powers. States have no presumptive set of reserved powers, not-

withstanding the Tenth Amendment. States, though “sovereign,” are “subordi-

nate governments” whose powers must yield to those powers “within [the

national government’s] sphere of action.”

3

The federal “sphere” includes

implied powers—hence, the states could not tax the Second Bank of the United

States, whose creation resulted from the valid exercise of an implied power. By

logical implication, state reserved powers cannot obstruct federal implied

powers. And since implied powers by their very nature cannot be known or

def‌ined in advance, the content of state reserved powers cannot be known or

def‌ined either. Whatever state sovereignty means, it cannot mean overcoming

implied federal powers. Therefore, we cannot f‌ill Tenth Amendment reserved

powers with known content. McCulloch prioritizes effectual national govern-

ment over limited enumerated powers; enumerationism reverses that priority.

Though McCulloch answered these questions, it did not settle them. Despite its

canonical status, McCulloch has not consistently been followed by the Supreme

Court.

4

The Court buried and disregarded McCulloch’s core federalism holdings

for more than a century. Not until 1941, in United States v. Darby Lumber Co.,

5

did a majority of the Court apply McCulloch’s principle of implied powers to the

Commerce Clause. But the next year, in Wickard v. Filburn (1942),

6

the Court

1. I have argued that enumerationism is more aptly characterized as an ideology than a doctrine

because it consists of a set of normative beliefs based on factual assumptions that do not hold true. Our

constitutional order over time has worked around the idea of limited enumerated powers rather than

applying meaningful limits. See David S. Schwartz, A Question Perpetually Arising: Implied Powers,

Capable Federalism and the Limits of Enumerationism, 59 ARIZ. L. REV. 573, 575–78 (2017).

2. 17 U.S. (4 Wheat.) 316 (1819).

3. Id. at 405, 427.

4. This is the thesis of my historical inquiry in DAVID S. SCHWARTZ, THE SPIRIT OF THE

CONSTITUTION: JOHN MARSHALL AND THE 200-YEAR ODYSSEY OF MCCULLOCH V. MARYLAND (2019).

5. 312 U.S. 100 (1941).

6. 317 U.S. 111 (1942).

2021] MCCULLOCH AND THE INCOHERENCE OF ENUMERATIONISM 27