MCCULLOCH V. MARYLAND, SLAVERY, THE PREAMBLE, AND THE SWEEPING CLAUSE.

AuthorMikhail, John

THE SPIRIT OF THE CONSTITUTION: JOHN MARSHALL AND THE 200-YEAR ODYSSEY OF MCCULLOCH V. MARYLAND. By David S. Schwartz (*) Oxford University Press. 2019. Pp. 328. $34.95 (Cloth).

INTRODUCTION

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." (2) This famous passage in McCulloch v. Maryland can be read in at least two different ways. On a narrow reading, the ends in question are Congress's enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the "foregoing powers" provision) to carry those enumerated powers into execution. (3) On a broad reading, these ends also include the six great objects of the Constitution stated in the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the "all other powers" provision, also known as "the Sweeping Clause") refers. (4)

Modern courts and scholars have generally adopted the narrow reading. All of the opinions in NFIB v. Sebelius, for example, limit their attention to the foregoing powers provision and its connection to enumerated powers when considering the scope of the Necessary and Proper Clause. (5) None of the Justices contemplates a broader use of McCulloch's central holding, according to which the individual mandate could be justified simply as a necessary and proper means to promote the common good or general welfare of the United States. Likewise, most of Marshall's leading biographers and commentators--for example, Beveridge, White, Smith, Newmeyer, Killenbeck, and Ellis--presuppose a narrow reading of the "Let the end be legitimate" passage. (6) When discussing this passage and the ends "within the scope of the constitution" to which Marshall refers, none of these scholars pauses to consider whether these ends include the objects enumerated in the Preamble.

David Schwartz is a welcome exception to this pattern. In his fascinating new book, The Spirit of the Constitution, Schwartz highlights the fundamental ambiguity of the "let the end be legitimate" passage, in the course of making clear just how evasive and unsatisfying Marshall's entire opinion in McCulloch really is. Most scholars recognize that Marshall's text supports different and, at times, incompatible readings of implied powers, some breathtakingly wide and others cautiously narrow. With unrivaled depth, sophistication, and attention to detail, Schwartz hammers home this point like never before. Along the way, he places certain nationalist readings of McCulloch that have been ignored or minimized more squarely on the table, including two that are especially noteworthy: the early Federalist theory of implied powers rooted in the Preamble and Sweeping Clause, and a narrower, but still robust, conception of "implied commerce powers" given by the Commerce Clause and the foregoing powers provision.

Schwartz focuses most of his attention on implied commerce powers (pp. 5-6, 22-23, 29-30). His treatment of this subject, and of Marshall's ambivalence about taking full advantage of the power to pass all necessary and proper laws for regulating interstate commerce, is simply masterful. Schwartz's careful analysis of the many subtle lines of constitutional argument flowing from McCulloch through Gibbons, (7) Miln, (8) Cooley, (9) Dewitt, (10) and the Legal Tender Cases, (11) along with the rest of the nineteenth-century commerce power canon (pp. 24-58, 59-83, 87-110, 142-55), is likewise brilliant and penetrating, and it has taught me a great deal that I did not know or fully appreciate about these cases. The same is true of his dazzling discussion of how implied commerce powers fared in the Lochner, New Deal, and Civil Rights eras, along with "the Long Conservative Court" led by Chief Justices Rehnquist and Roberts (pp. 177-93,194-212, 213-36, 237-47). Finally, as if that weren't enough, Schwartz also supplies a fresh new perspective on McCulloch's relationship to the enforcement provisions of the Reconstruction Amendments (pp. 124-41, 230-36). All this makes the book invaluable reading for constitutional scholars, particularly those of us tasked with teaching McCulloch and its progeny to law students.

Although Schwartz's focus on implied commerce powers makes sense from a modern doctrinal perspective, at the end of the day I am unconvinced that these powers, grounded in the Commerce Clause and the foregoing powers provision, are the best lens through which to understand the historical significance of McCulloch. Arguably, a better framework is the other nationalist argument implicated by the "let the end be legitimate" passage--the original theory of implied powers, grounded in the Preamble and Sweeping Clause, which received perhaps its most significant early expression in congressional debates over slavery and the First Bank of the United States. The implied commerce powers story begins primarily in 1824 with Gibbons, and as Schwartz so helpfully recounts, it eventually comes to dominate the Supreme Court's implied powers jurisprudence in cases like Darby, (12) Wrightwood Dairy, (13) Heart of Atlanta,, (14) and Raich (15) (pp. 217-23, 232-34, 242-47). McCulloch itself, however, is arguably not an enumerated powers/foregoing powers provision case at all. Rather, it is better understood as a case in which Marshall kept alive the older Federalist theory of implied powers, rooted primarily in the Preamble and the Sweeping Clause's reference to "all other powers vested by this Constitution in the Government of the United States," (16) while nonetheless shrouding that theory in a certain amount of strategic ambiguity, and generally signaling that the Court would not permit implied powers to be used to threaten slavery.

To see why this alternative reading of McCulloch seems plausible, it helps to recall some key facts about Marshall and the historical background to his analysis of implied powers in that case. At least five key episodes in Marshall's life stand out in this regard, all of which help to illuminate and reinforce Schwartz's thesis that Marshall's embrace of implied powers in McCulloch was more cautious than is commonly recognized. These episodes help to explain why Schwartz seems essentially correct to conclude that McCulloch "offered something to both nationalists and moderate Jeffersonian Republicans" in 1819 and "is simply too ambiguous to mandate a particular result in most contested cases about congressional power" today (pp. 58, 253). In what follows, I discuss each of these events in turn, before drawing some overarching lessons from Marshall's encounters with implied powers before McCulloch.

RATIFICATION

A useful starting point is the Virginia ratifying convention, which Marshall attended as a delegate from Henrico County. Much could be said about how Virginians felt threatened by implied powers and how that fear manifested itself at this convention. For our purposes, the most important point to recognize about this topic is that, along with Edmund Randolph, George Nicholas, James Madison, and Francis Corbin, Marshall was a member of the five-member committee that drew up the "Form of Ratification" with which the Virginia convention adopted the Constitution. According to this carefully worded document, the convention declared that:

the powers granted under the Constitution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes. (17) The most pertinent fact about this convoluted language is that it implies that all of the powers delegated by the Constitution are vested directly in Congress, the President, or other Departments or Officers of the United States. The likely purpose of this enumeration was to counteract the dangerous provision of the Sweeping Clause that had caused Randolph and George Mason so much anxiety in Philadelphia and had prevented them and Elbridge Gerry from signing the Constitution in the first place: namely, its reference to "other powers" vested in the Government of the United States itself, over and above the powers vested in Congress or other Departments or Officers of the federal government. By liquidating the troubling ambiguity of this clause, Randolph informed the convention, the "Form of Ratification" would enable Virginians to consider "every exercise of a power not expressly delegated" (18) by the Constitution to be a violation of its terms. Laying the predicate for what eventually became the compact theory of the Constitution, Nicholas went further and explained that Randolph's idea would justify a contractual understanding of ratification:

Mr. Nicholas contended that the...

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