The Expanding Universe of Mcculloch ’s Known Unknowns

The Expanding Universe of McCulloch’s Known

Unknowns

ERIC LOMAZOFF*

ABSTRACT

In this essay, I argue that over two hundred years after McCulloch v. Maryland

(1819) was decided, we actually have more unanswered questions about the case

than ever before. I open the essay by presenting the conventional universe of

McCulloch’s “known unknowns;” this list includes, but is surely not limited to, the

question of why Chief Justice Marshall construed congressional power as broadly as

he did in the case. I then explain why this conventional universe is too small. I draw

heavily here upon my recent book, Reconstructing the National Bank Controversy

(Chicago, 2018), which highlights the centrality of the Coinage Clause to the revival

of the Bank of the United States in 1816. The heretofore unappreciated salience of

this provision should lead us to ask, among other things, why Marshall and his peers

proceeded to ignore it altogether in deciding McCulloch. I close the essay with an

effort to catalogue an expanded universe of McCulloch’s “known unknowns,” both

as a descriptive exercise and as a guide for future scholars of the case.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

I. OF ANCIENT VINTAGE: MCCULLOCH’S LONG-UNANSWERED

QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

II. RECONSTRUCTING THE ROAD TO MCCULLOCH . . . . . . . . . . . . . . . . 121

1. May 1812 to January 1815: Funding a War. . . . . . . . . . . . . . . . 124

2. February 1815 to April 1816: Restoring the Currency. . . . . . . . 128

III. OF RECENT VINTAGE: MCCULLOCH’S NEW KNOWN UNKNOWNS . . . 136

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

INTRODUCTION

Those engaged in the enterprise of writing constitutional history—whether

trained in law, history, or (in my case) political science—operate within a space

* Associate Professor of Political Science, Villanova University. A draft of this essay was presented

at the 6th Annual Salmon P. Chase Faculty Colloquium at the Georgetown University Law Center, 6

December 2019 (Washington, DC). The author is grateful to all of the participants in the Chase

Colloquium for their helpful feedback on that draft. © 2021, Eric Lomazoff.

111

containing three types of phenomena. We have (1) known knowns, or facts whose

existence we recognize and whose content lay within our consciousness (e.g.,

we know that the fate of Obamacare’s individual mandate was determined by the

Supreme Court in NFIB v. Sebelius and that the Court held the mandate constitu-

tional

1

). We also have—and I imagine that my Rumsfeldian approach here

2

is al-

ready obvious—(2) known unknowns, or facts whose existence we recognize but

whose content currently lay outside our consciousness (e.g., we know that Chief

Justice Roberts had a reason for ultimately voting to uphold the individual man-

date in Sebelius after initially voting to strike it down, but we do not know with

certainty what that reason was

3

). Finally, we have (3) unknown unknowns, or

facts whose very existence—to say nothing of their content—lay outside our con-

sciousness (e.g., imagine some future scholar unearthing Justice Ginsburg’s pri-

vate diary and learning, without an account of his reasoning, that Justice Scalia

brief‌ly but strongly considered voting to uphold the individual mandate following

oral argument

4

).

If I have correctly described the epistemological space within which constitu-

tional history is written, then three claims respecting the enterprise itself are in

order. First, our principal objective is to shrink the universe of known unknowns,

thereby expanding the universe of known knowns. Constitutional history at its

best is able to do this. Second, constitutional historians cannot always achieve

this objective. Sometimes, the best we can do is take a known unknown, proffer

(on the basis of empirical evidence) an answer to its underlying question, “accept

that we cannot know for certain if our answer[] [is] right[,]” and then report how

certain we are of its accuracy.

5

Finally, even if some known unknowns ultimately

evade conversion into known knowns—either because the best we can do is to

reduce uncertainty about them or because our work reveals them to be truly

unknowable—we assume that with respect to any given episode in our constitu-

tional history, there will generally be a negative relationship between time and

1. 567 U.S. 519 (2012).

2. DONALD RUMSFELD, KNOWN AND UNKNOWN: A MEMOIR xiii (2011). To be clear, a self-

characterization of my approach as “Rumsfeldian” should not be confused with a claim that Donald

Rumsfeld actually invented this typology. As Lawrence B. Solum rightly noted while commenting on

my draft, “this schema goes back to work in social psychology in the 1950s, [namely the] Johari

window” created by Joseph Luft and Harry Ingham. See JOSEPH LUFT, GROUP PROCESSES: AN

INTRODUCTION TO GROUP DYNAMICS 10–11 (1970).

3. On the initial report of Roberts switching his vote between the justices’ private conference (March 2012)

and the announcement of the Court’s opinion (June 2012), see Jan Crawford, Roberts Switched Views to

Uphold Health Care Law, CBS NEWS (July 2, 2012), available at https://www.cbsnews.com/news/roberts-

switched-views-to-uphold-health-care-law/ [https://perma.cc/BR54-3CSD]. For an explanatory account that

prioritizes Roberts’ discomfort with both striking down an “entire law that had been approved through the

democratic process” and doing so along perceived ideological lines, see JOAN BISPUKIC, THE CHIEF: THE LIFE

AND TURBULENT TIMES OF CHIEF JUSTICE JOHN ROBERTS 238 (2019).

4. Imagine speculation immediately commencing that his reasoning probably mirrored his

concurring opinion in Gonzales v. Raich, 545 U.S. 1 (2005).

5. Adrian Blau, Uncertainty and the History of Ideas, 50 HISTORY AND THEORY 358, 358 (2011).

Blau’s focus here is intellectual history, but I see no reason why his logic does not apply to constitutional

history.

112 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:111

the size of the universe of known unknowns. In simpler terms, as time goes on, we

expect to know more (and thus, be knowingly ignorant of less).

This has not been my experience with either McCulloch v. Maryland

6

or the

broader controversy over a national bank of which it is a part. My experience has

been marked less by answering the questions we knew existed (or converting

known unknowns into known knowns) and more by learning things which intro-

duce questions we did not know existed (or converting unknown unknowns into

known unknowns). With respect to McCulloch in particular—an episode encom-

passing everything from the circumstances which brought a bank cashier and the

State of Maryland to the Court down through the pseudonymous epistolary war-

fare which followed the decision’s announcement

7

—I see the relationship

between time and the size of its universe of known unknowns as positive. With

apologies to its most recent students,

8

I submit that two hundred years in, we

have more unanswered questions about the case than ever before.

This essay is designed to defend that claim, if for no other reason than to col-

late the list of McCulloch’s known unknowns for current and future students of

constitutional history. It proceeds in three parts. First, I describe the conventional

universe of known unknowns with respect to McCulloch (and I do largely limit

myself here, contra Sandy Levinson’s 2019 Chase Memorial Lecture, to its con-

gressional power component

9

). This list includes, but is surely not limited to, per-

haps the core unanswered question respecting McCulloch: Why, precisely, did

Chief Justice John Marshall, writing for the Court, embrace an “aggressively na-

tionalist” interpretation of congressional power?

10

Second, I explain why this list

needs to expand. This includes an overview of the most salient f‌indings from my

own recent contribution to scholarship on McCulloch and the broader controversy

over Congress’s power to charter a national bank, Reconstructing the National

Bank Controversy: Politics and Law in the Early American Republic.

11

My cen-

tral claims here are that (1) a narrow justif‌ication for chartering a new Bank of the

United States—one anchored to the Coinage Clause of Article I, Section Eight—

was both embraced by the 14th Congress (1815–17) and at least recognized

approvingly by President James Madison in his f‌inal annual message, and (2) the

failure of that heretofore underappreciated justif‌ication to play any signif‌icant

role in the McCulloch episode invites us to ask a number of new questions about

the case, including (but not limited to) the reasons for its absence from both oral

6. 17 U.S. (4 Wheat.) 316 (1819).

7. JOHN MARSHALL’S DEFENSE OF MCCULLOCH V. MARYLAND (Gerald Gunther ed. 1969).

8. MARK R. KILLENBECK, MCCULLOCH V. MARYLAND: SECURING A NATION (2006); RICHARD E.

ELLIS, AGGRESSIVE NATIONALISM: MCCULLOCH V. MARYLAND AND THE FOUNDATION OF FEDERAL

AUTHORITY IN THE YOUNG REPUBLIC (2007).

9. Sanford V. Levinson, McCulloch II: (the Oft-Ignored Twin) and Inherent Limits on ’Sovereign’

Power, (October 2, 2019) (unpublished manuscript) (on f‌ile with the author).

10. For an important critique of this “conventional reading” of what Marshall did, see David S.

Schwartz, Misreading McCulloch v. Maryland, 18 U. PA. J. CONST. L. 1 (2015).

11. ERIC LOMAZOFF, RECONSTRUCTING THE NATIONAL BANK CONTROVERSY: POLITICS AND LAW IN

THE EARLY AMERICAN REPUBLIC (2018).

2021] THE EXPANDING UNIVERSE OF MCCULLOCH’S KNOWN UNKNOWNS 113