Justice Oliver Wendell Holmes' two-paragraph dissent in Lochner v. New York does not grapple with the question: what does the 14th Amendment enact?
Nelson Lund’s encyclopedic interests include such diverse subjects as federalism, the separation of powers, the Second Amendment, the presidency, election law, judicial power, originalism, assisted suicide, due process, equal protection, and Jean-Jacques Rousseau’s political philosophy. On all of these, and more, he has shone great light and made us his intellectual debtors. When it comes to his Liberty Forum essay on Chief Justice Marshall’s opinion in McCulloch v. Maryland, I’m afraid, not so much.
If I read him right, the threefold thrust of Professor Lund’s argument comes to this:
1) That Marshall took unjustified liberties in his reading of the Necessary and Proper Clause; 2) that, even assuming Marshall’s latitudinarian reading of Article I, Section 8 were defensible, the Court ought to have imposed something like strict scrutiny when assessing congressional judgments about what was truly necessary and proper; and 3) that, in any event, McCulloch unfortunately gave Congress carte blanche to determine the reach of Article I’s grant of legislative power.
The Situation in 1819
In many respects, Professor Lund’s criticism merely reiterates a canard that was levelled against Marshall in his own day and has warmed the arguments of many critics of big government ever since. The chief justice’s opinion, to be sure, was certainly capacious in its understanding of national power as a matter of originalist construction, but his support for nationalism was mostly deployed to counter assertions of state sovereignty contrary to the principles of the ratified Constitution.
In light of unforeseeable subsequent developments since Marshall’s time, the Great Man might be inclined to trim some of the soaring nationalist rhetoric found in McCulloch (2019) and Gibbons v. Ogden (1824). But one would be hard pressed to find a Marshall opinion even winking at the routine sorts of congressional power we’re accustomed to today.
Although numerous Progressives have worked overtime to harness Marshall’s rhetoric to their purposes, one cannot fairly draw even a jagged a line that runs from Marshall to the New Deal. Marshall’s devotion to limited government (in contradistinction to energetic government) is hardly questionable, and despite brickbats hurled at him by disgruntled critics of Anti-federalist disposition, his nationalism was not consolidationalist. He would be appalled by modern constitutional jurisprudence in all of its pomp and works, on everything from federalism, to the role of courts, to the invention of rights and the instantiation of the administrative state. To imply that today’s national government hegemony finds its roots in McCulloch’s rhetoric is, to say no more, both ahistorical and unjust.
We need to remind ourselves that the constitutional problems facing the Marshall Court were fundamentally different from what we face today. The federal judiciary then was still in its infancy, its power widely questioned, its decrees not infrequently ignored; Congress was hardly the Pelosian Moloch we’re familiar with today; and the states were infinitely more powerful than they are now. For most of his tenure on the Court, Marshall struggled to explain and justify the Framers’ vision of the federal union—at least the Framers of 1787 through 1789 whose views were more or less comprehensively articulated in The Federalist. Not everyone shared that vision, and ere long, as we know, some of the more prominent Framers fell out among themselves. In truth, the Constitution in critically important places either remained silent (implied powers generally, the removal power) or invited reasonable differences of opinion (the Commerce Clause, the Necessary and Proper Clause, the precise metes and bounds of federalism).
On some of these issues, differences of opinion began to harden into partisanship before the Constitution’s ink had dried. None of these differences proved more nettlesome than those connected with the question of national versus state power. It was here that Marshall met his most formidable opposition, and it was here that he mounted his most eloquent defenses of what he believed the Constitution meant to do.
The story is too long and complicated to be recounted here, but Marshall’s intention in McCulloch cannot be understood apart from this context. Without putting too fine a point on it, what Marshall faced was a more or less wholesale rejection of the premises (at least as Marshall, relying on Publius, had understood them) on which the new Constitution had been erected. The principal source of opposition here came from Virginia, where those associated with the so-called “Richmond Junto” and John Taylor of Caroline worked mightily to interpose state power against federal encroachment and consolidation.
It will be recalled that in the debate on adopting the Bill of Rights in the First Congress, Representative James Madison beat back Anti-federalist efforts to add the word “expressly” to the wording of the Tenth Amendment. Had these efforts succeeded, the text would have read thusly: “The powers not expressly delegated to the United States, not prohibited by it to the States, are reserved to the States respectively, or to the people.” Adoption of the adverb would have radically altered the entire tenor of the Constitution, which is precisely what the Anti-federalists wished to do. Its addition would have all but extinguished the idea of implied powers, which was the intent of Marshall’s Virginia critics.
Their default position on the nature of the Union was that it was but a compact among the states, a somewhat improved model of the Articles of Confederation, but a confederation nevertheless, in contrast to the compound republic envisioned by The Federalist. The state-compact theory animated the Richmond Junto crowd, who enjoyed the tacit, and likely more than tacit, support of Thomas Jefferson (the “great Lama of the Mountain” as Marshall mocked him). Similar sentiments were echoed in other states, especially in the South, and by 1832 would furnish the intellectual foundations of the Nullification Crisis.
In the Bank Case, in short, John Marshall was hardly conjuring enemies out of the air. Indeed, counsel for Maryland in McCulloch argued explicitly in favor of the state-compact theory as a justification for the state’s taxation of the Bank of the United States. Marshall knew where that logic led. Anticipating the assault against his opinion in McCulloch, he wrote to Justice Story that while his opponents couched their arguments as criticisms of federal judicial power, their strategic salient was to undermine the Union and to establish a regime closer to the letter and spirit of the Articles.
This background explains, among other things, why the chief justice decided to undertake the extraordinary and risky effort to reply pseudonymously to the acrimonious attacks against him launched by Thomas Ritchie, John Brockenbrough, and Spencer Roane of the Richmond Junto. Marshall’s rebuttals (there were nine in all) to their stinging criticism were certainly vigorous and occasionally over the top, as we would say, but not in the same class as the imprecations hurled against him and the Court.
In short, the argument about McCulloch is about much more than the constitutionality of a nationally charted bank, even much more than how one ought to read the Necessary and Proper Clause. It is, as Marshall said to Story, essentially about the very nature of the Union itself, and how one reads the core bargain struck at Philadelphia and the state ratifying conventions. Lord knows, there was plenty of room for disagreement even among those who agreed with that bargain as articulated by Publius. (I leave to one side the argument James Madison had with himself about the nature of the Union he helped to create.) But Marshall believed the extra-chromosome states-righters exemplified by the Richmond Junto to be a thing apart.
He was right to be alarmed by their excesses and brilliant in his responses to them, both in his pseudonymous essays and in cases like McCulloch and Cohens v. Virginia (1821). He was struggling to keep the Union together at a time when significant forces were arrayed that threatened to take it apart. If in his effort to halt their progress John Marshall occasionally overstated the case for his side, it was, under the circumstances, a small and forgivable vice.
Don’t Blame the New Deal on Marshall
I share Professor Lund’s lament about the explosion of national power in the modern era, but to lay even part of the blame at Marshall’s door is unwarranted. Among other things, between him and us there are diverse exogenous events of great import that have more to do with the growth of government than anything spoken or even imagined by John Marshall—to name just a few, the Civil War and the Fourteenth Amendment, two world wars, the 50-year fight against communism, the emergence of the United States as a world power generally, the Sixteenth and Seventeenth Amendments, and the Progressive assault against the Founders’ Constitution. Measured against these weighty forces, any excessive rhetoric on the part of John Marshall hardly makes a mark.
Finally, a word about Professor Lund’s suggestion that one way to check wretched legislative excess might be for courts to peek beneath the veil when Congress relies on the Necessary and Proper Clause. Such a prospect has undeniable appeal; indeed, something akin to this may be found in the effort to trim or eliminate Chevron deference. But the efficacy of the proposal will necessarily depend on the disposition of federal judges. Even if Lund’s more exacting judicial scrutiny had been adopted decades ago, would a bench dominated by the likes of Earl Warren, William Brennan, or Ruth Bader Ginsburg have paid any attention to it whatsoever?