their audacity in recognizing that only radical changes could save a floundering
Union—without equally celebrating their specific handiwork in Philadelphia,
especially in structuring our own polity today.
I suggested, as has been a recur-
rent emphasis of my own work, that as a society we dangerously over-celebrate,
even “venerate,” the Constitution.
But, quite obviously, that does not require
denigrating the Framers or, even more so, negate the value of paying close study
to the Constitution inasmuch as it plays an important part, for good and, I increas-
ingly believe, for ill in the actual workings of our political order.
So it is with McCulloch v. Maryland. The back jacket of David Schwartz’s
marvelous new book on McCulloch, which is definitely worth celebrating,
includes my justified praise of his “indispensable study of the single most impor-
tant Supreme Court case in the canon.”
I believe it is true both that his book is
“indispensable” and, even more to the point, that the case is of truly singular im-
portance in the canon of constitutional law. It is, I am confident, one of the few
cases that is taught in every course charged with introducing students to the
United States Constitution. In fact, in a constitutional law casebook that I co-edit,
it is the one and only case that is presented without any editorial erasures.
Jack Balkin and I published an essay in the Harvard Law Review about twenty
years ago on the multiple canons of constitutional law.
We identified three such
canons. First, there are cases that must be taught to law students, the pedagogical
1. See Sanford Levinson, Celebrating the Founders or Celebrating the Constitution: Reflections on
Constitution Day, 2019, 12 NE. U.L. REV. 375 (2020). This was originally delivered at the United States
Supreme Court as the annual Salmon P. Chase Lecture, under the auspices of the Supreme Court
Historical Society and the Georgetown Center for the Constitution’s Sixth Annual Salmon P. Chase
Distinguished Lecture & Faculty Colloquium on December 5, 2019. I am extremely grateful to Randy
Barnett for the invitation and the opportunity to participate in the ensuing discussions of McCulloch v.
Maryland on the following day at Georgetown University Law Center. Although I have revised the
lecture as delivered for publication, I have retained the overall tone of the lecture, including, in the
second paragraph, the reference to the specific date on which it was delivered. I had previously given an
“out-of-town-tryout” at a conference organized by David Schwartz at the University of Wisconsin. I am
grateful for the responses I received there, as well as for later detailed suggestions by Schwartz himself.
I also benefitted greatly from responses by Mark Killenbeck. And, as always, I am grateful to Jack
Balkin and Mark Graber.
2. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 185–94 (2d ed. 2011), which includes an
“Afterword” explaining precisely why I lost the “constitutional faith” I had been willing to profess by
“signing the Constitution” at the Bicentennial Exhibit in Philadelphia in 1987, the time when the first
edition was being written and published. For an explanation of why I refused to “sign the Constitution”
at the opening of the National Constitution Center in Philadelphia in 2003, see also SANFORD LEVINSON,
OUR UNDEMOCRATIC CONSTITUTION 11–24 (2006).
3. DAVID SCHWARTZ, THE SPIRIT OF THE CONSTITUTION: JOHN MARSHALL AND THE 200-YEAR
ODYSSEY OF MCCULLOCH V. MARYLAND (2019). It is worth noting that it is not the only recent notable
book published about the case. See ERIC LOMAZOFF, RECONSTRUCTING THE NATIONAL BANK
CONTROVERSY: POLITICS AND LAW IN THE EARLY AMERICAN REPUBLIC (2018), which throws
illuminating new light on the particular context of the debate over the Bank of the United States and the
arguments made by some “Madisonians,” albeit ignored by John Marshall, to justify their change of
constitutional position from 1791 to 1816
4. PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 39 (7th ed. 2018).
5. Jack M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963,
2 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:1