Statutory Jurisdiction and Constitutional Orthodoxy in Mcculloch , Cohens and Osborn

• Published date: 01 January 2021
• Date: 01 January 2021

Statutory Jurisdiction and Constitutional

Orthodoxy in McCulloch, Cohens and Osborn

KEVIN C. WALSH*

ABSTRACT

This essay examines the underappreciated element of statutory jurisdiction in

McCulloch v. Maryland, Cohens v. Virginia, and Osborn v. Bank of the United

States. One objective is to identify more precisely the Marshall Court’s jurisdic-

tional innovations in these three foundational decisions. A close look at the

question of statutory jurisdiction in the trio of McCulloch, Cohens, and Osborn

reveals a kind of constitutional magnetism at work. In constitutional avoidance,

a court adopts an interpretation in order to stay away from a constitutional

problem. In contrast, the Marshall Court in Cohens and Osborn expanded the

jurisdictional statutes at issue in order to conform to a constitutional vision of

the Supreme Court’s role as set forth in McCulloch. The jurisdictional maneu-

vering in that case likely brought to the Court’s attention the statutory jurisdic-

tional gaps that the Court f‌illed by construction in Cohens and Osborn.

Part I discusses McCulloch v. Maryland with particular attention to its juris-

dictional basis. Part II addresses the opposition to McCulloch in Virginia and

the Supreme Court’s answer in Cohens v. Virginia. Part III turns to Ohio’s

opposition and the Supreme Court’s response in Osborn v. Bank of the United

States. A concluding section offers some meditations on McCulloch and the

maintenance of constitutional orthodoxy.

TABLE OF CONTENTS

I. THE CURIOUS CASE OF THE FIVE UNSTAMPED BANKNOTES

IN MCCULLOCH V. MARYLAND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

II. WOKE VIRGINIA AND THE COHEN BROTHERS . . . . . . . . . . . . . . . . . 78

A. The Newspaper Essays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

B. Cohens v. Virginia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

III. OHIO’S INJURED INDEPENDENCE AND OSBORN V. BANK OF THE

UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

* Professor of Law, University of Richmond School of Law. Thank you to Randy Barnett for the

invitation to present, the participants in this symposium for helpful feedback, the editors of the

Georgetown Journal of Law & Public Policy for editorial improvements, and to Michelle Hoffer (UR

Law ’21) for excellent research assistance. © 2021, Kevin C. Walsh.

73

CONCLUDING MEDITATIONS ON JURISDICTION AND THE MAINTENANCE OF

CONSTITUTIONAL ORTHODOXY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

I. THE CURIOUS CASE OF THE FIVE UNSTAMPED BANKNOTES

IN MCCULLOCH V. MARYLAND

As the Supreme Court’s bid to serve as the ultimate locus of interpretive

authority in resolving constitutional questions open to resolution in a judicial fo-

rum, McCulloch v. Maryland elicited responses that highlighted the inadequacies

of existing jurisdictional rules. In particular, the Court needed a way to decisively

maintain preeminence over state legislatures in the competition for ultimate

authority. However, these kinds of problems were not in the foreground when

the Supreme Court sat in February 1819 to hear arguments in McCulloch v.

Maryland. After all, Maryland had colluded with the Bank to bring the case

before the Supreme Court for review. Far from competing with Maryland’s

legislature for ultimate interpretive authority, Maryland’s authorities presup-

posed the Court’s authority and contrived their case against the Bank to

obtain its exercise.

The Maryland tax law required covered banks to purchase stamps for their

banknotes or pay a lump sum of $15,000. The Baltimore branch of the Second

Bank of the United States refused to comply. This exposed the Bank and its off‌i-

cers to penalties under the law, including a penalty of $500 for each unstamped

banknote issued. For its part, Maryland faced potential enforcement diff‌iculties

related to proof about the in-state issuance of any particular banknote because the

Bank had branches in other states. As the outgoing Governor explained in a

December 1818 address to the legislature, this state of affairs gave rise to an “am-

icable arrangement” to obtain Supreme Court resolution:

The bank, . . . having early determined to stand a suit, negotiations were

entered into, and as it professed a sincere desire to bring the question of consti-

tutional right before the legal tribunals of the country, (to which their right to

resort was unquestionable,) and to wave [sic] at once all legal delays, and carry

it to the highest appellate jurisdiction, the Supreme Court of the U. States, an

amicable arrangement was entered into.

1

To carry out this contrivance, the State’s Treasurer of the Western Shore, John

James, brought a qui tam enforcement “action of debt” against the Baltimore

branch’s cashier, James M’Culloh. James sought to recover a $500 penalty for

each of f‌ive unstamped banknotes. The Baltimore county court ruled for the state.

M’Culloh appealed to the court of the appeals “for the western shore . . . upon a

1. Executive Communication to the Legislature, MD. GAZETTE AND POL. INTELLIGENCER (Dec. 17,

1818), https://msa.maryland.gov/megaf‌ile/msa/speccol/sc4800/sc4872/001288/html/m1288-0424.html

[https://perma.cc/6PKW-ZHS6].

74 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:73

case stated, so as to rest the question upon the constitutionality of the act. A deci-

sion in favour of the state was there had by consent, and the appeal carried up to

the supreme court of the United States.”

2

As it came to the Court, then, a judg-

ment in favor of “the plaintiffs” (John James and Maryland) would be “for

$2500, and costs of suit.”

3

If the Court were to rule for M’Culloh, by contrast,

“judgment of non pros shall be entered, with costs to the defendant.”

4

This all seemed straightforward, and everyone came into the Supreme Court

expecting the case to be a big one.

5

The Court allowed the parties to have three

lawyers argue for each side, instead of the usual two.

6

The arguments themselves

proceeded for several days.

Chief Justice Marshall issued his opinion for the Court on March 6, just three

days after the conclusion of arguments. The entire opinion is a bold bid for ulti-

mate interpretive authority. Marshall’s opening paragraph radiates a quiet conf‌i-

dence in the f‌irmness of the constitutional ground upon which the Court stood in

exercising such authority:

In the case now to be determined, the defendant, a sovereign state, denies the

obligation of a law enacted by the legislature of the Union, and the plaintiff, on

his part, contests the validity of an act which has been passed by the legislature

of that state. The constitution of our country, in its most interesting and vital

parts, is to be considered; the conf‌licting powers of the government of the

Union and of its members, as marked in that constitution, are to be discussed;

and an opinion given, which may essentially inf‌luence the great operations of

the government. No tribunal can approach such a question without a deep

sense of its importance, and of the awful responsibility involved in its decision.

But it must be decided peacefully, or remain a source of hostile legislation,

perhaps, of hostility of a still more serious nature; and if it is to be so decided,

by this tribunal alone can the decision be made. On the supreme court of the

United States has the constitution of our country devolved this important

duty.

7

Every sentence of this paragraph is charged with signif‌icance. But for the pur-

pose of trying to understand when the Court should have appreciated the fragility

of its jurisdictional grasp, we should dwell a bit on the f‌inal sentence.

Notice f‌irst how Marshall frames the Court as a passive recipient of a duty

from “the constitution of our country.” He spells out elsewhere the connection

between the existence of a single body politic (“We the people”) and the Court’s

claim to ultimate interpretive authority. The two issues are deeply connected. A

2. Id. Scholars have been unable to locate an opinion of either of the Maryland courts. It may be

because none exist, just the judgments.

3. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 320 (1819).

4. Id.

5. See MARK R. KILLENBECK, M’CULLOCH V. MARYLAND: SECURING A NATION 95–96 (2006).

6. Id. at 96–97.

7. Id. at 400–01.

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