Hugo Grotius addressed the morality of enforcing bad laws.
On October 22, 1819, Chief Judge Spencer Roane of the Virginia Court of Appeals (now the Virginia Supreme Court) dashed off a quick cover letter to former President James Madison. “The enclosed Numbers, written by me,” said the judge, “were published, a few weeks ago, in the [Richmond] Enquirer. They relate to a subject as cardinal, in my judgment, as that which involved our Independence.” The “Numbers” to which Roane referred were his four “Hampden” essays. They conveyed the full Virginia argument, marked by both alarm and fury, against John Marshall’s opinion for the Supreme Court in a case decided that year, McCulloch v. Maryland.
Madison’s reply to Roane’s newspaper essays no doubt pleased the judge. This great constitutional authority began by observing that, rather than rule in the case at hand and leave the general doctrinal matter to be elucidated by a line of cases, the Supreme Court through the chief justice had in its decision and opinion in McCulloch “interwoven” a “general & abstract doctrine . . . with the decision on the particular case,” thus “forego[ing] the illustration to be derived from a series of cases actually occurring for adjudication.” Madison expressed distaste at this latest instance of Marshall’s speaking for the whole court, which gave the impression that the judges all agreed concerning “every argument and dictum” of the opinion.
With that by way of prologue, Madison turned to the main problem posed by the decision: “the high sanction given to a latitude in expounding the Constitution, which seems to break down the landmarks intended by a specification of the powers of Congress; and to substitute for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limit can be assigned.” In plain 2019 English, Madison read Marshall’s opinion as meaning that Congress’s legislative power was essentially unlimited.
Marshall had said that if the Congress had in mind an end given over to its care by the Constitution, the means to that end would, if “proper,” be considered legitimate. Madison lamented that virtually any exercise of legislative power might be justified under this rubric. “Is there a Legislative power, in fact, not expressly prohibited by the Constitution,” Madison asked, “which might not, according to the doctrine of the Court, be exercised as a means of carrying into effect some specified power”? He thought it a rhetorical question.
Opening the Door to Legislative Action Too Wide
Madison believed that the Supreme Court had by its McCulloch decision, as explained by John Marshall, “relinquish[ed] . . . all controul on the Legislative exercise of unconstitutional powers.” “Expediency & constitutionality of means for carrying into effect a specified power” had been made by the court to be “convertible terms,” with Congress “to be judges of the expediency.” This thwarted the plan of the people who created the Constitution.
That for Madison was the chief argument against John Marshall’s reasoning in this, his most important case. Madison mused that, “It could not but happen, and was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise, in expounding terms & phrases necessarily used in such a Charter, more especially those which divide legislation between the General and the local Governments.” The response of the highest federal court was not to be to wash its hands of the matter by adopting “a rule of construction . . . as broad and pliant as what has occurred.” Then came the climax of his argument: “Those who recollect, and still more, those who shared in what passed in the State Conventions, thro’ which the people ratified the Constitution, with respect to the extent of the powers vested in Congress, can not easily be persuaded that the avowal of such a rule would not have prevented its ratification.”
James Madison was a careful man. He thought through what he said. He no doubt knew that not only Roane, but Roane’s fellows atop the Virginia political elite, would read this letter. This was the same man who had sat in the front of the room at the Pennsylvania State House in the summer of 1787 and recorded much of the proceedings of the Philadelphia Convention with an eye to our having his records available to us, and who saved his extensive correspondence with such as Roane. He would perhaps be pleased, but not exactly surprised, that for the bicentennial of McCulloch v. Maryland, we would be considering his criticism of it.
Madison closed by pointing to the central reality of the federal system, the one highlighted by James Wilson in his pro-ratification State House Speech of 1787. A state government’s powers “are understood,” Madison said, to include all powers “required for the welfare of the Community, and falling within the range of just Government.” Withholding such a power from a state government would be harmful. When it came to the general government, on the other hand, withholding a power would not mean the people could not have the benefit of such power, because they could look to their state government for its exercise. If the general government was found to lack a power, then, that might be because the people preferred for the states to exercise it. The way to change such a situation was through a formal amendment, which the people could make if they wanted to. The Marshall Court in setting up an alternative had engaged in, as the chief justice’s biographer R. Kent Newmyer said in his 1968 classic, The Supreme Court Under Marshall and Taney, “a bold exercise in judicial lawmaking.”
If James Madison leveled as critical a commentary as he could muster against McCulloch v. Maryland, you would not know it from reading the most noted historians of the Marshall Court, or even of the Jeffersonian era. The earliest Marshall biographer still consulted today, U.S. Senator Albert J. Beveridge (R-Ind.), used the mightiest superlatives he could muster in his descriptions of the oral argument (“Indeed, all the lawyers in this memorable contest appear to have surpassed their previous efforts at the bar”) and Marshall’s opinion (“the decision of this case involved the very existence of the Constitution as ‘an ordinance of Nationality,’ as Marshall so accurately termed it”). Marshall, according to Beveridge, “gives an historical account of the Constitution which, for clearness and brevity, never has been surpassed.”
For clearness and brevity, perhaps. For accuracy is another matter. Beveridge relegates his explanation of the fundamental matter at issue in the case, the nature of the federal union, and thus of the Constitution, to a footnote. Well he might: that is the weakest element of Marshall’s opinion.
A Tendentious Account of “Antifederal Fears”
Marshall criticized the claim of “counsel for Maryland,” Philadelphia Convention Framer Luther Martin, that the Constitution had been created by the states, which through it delegated the Federal Government enumerated powers. Not so! said Marshall. The Constitution is the creature of the American people—which perforce acted in the states because that is where they live—but of one American people, nonetheless. The states reserved nothing, as they did not create the Constitution.
Marshall’s claim always reminds me of Justice Robert Jackson’s observation of the court that, “We are not final because we are infallible, but we are infallible only because we are final.” As Madison explained in his Virginia Report of 1800, the states in this context were the sovereign people of each state. Article VII of the Constitution says, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” Neither ratification by a majority of the states nor ratification by states containing a majority of the citizen population of the country sufficed to bring the remainder under the Constitution. Rather, North Carolina joined the new federal union months after George Washington’s first inauguration, and Rhode Island remained outside it for a year. Each state ratified the Constitution for itself, not as one of 13 portions of one sovereign American people.
In his rightly lauded John Marshall and the Heroic Age of the Supreme Court (2001), Newmyer muses that, “Marshall fully understood the provenance of the argument, that it went back to the Anti-Federalists at the time of ratification, back to the Virginia and Kentucky Resolutions, back to Thomas Jefferson.” The editor of Marshall’s papers, Charles F. Hobson, says, “The bank case . . . aroused all the latent antifederal fears about consolidation that had been lurking near the surface since the Constitution had gone into effect in 1789.” Richard E. Ellis wrote in his study of McCulloch that Virginia’s negative response to the decision “buil[t] upon a strong Antifederalist heritage.” These great students of Marshall are mistaken.
That Article VII described the ratification process, and that it had certain logical ramifications, had in fact been the Federalist position in the Virginia Ratification Convention of 1788. Jefferson had not been a member of that convention, but his friend Madison and Jefferson’s cousin, Governor Edmund Randolph, had been among the three leading Federalist orators there. So too had Jefferson’s fellow citizen of Albemarle County, George Nicholas. As that convention reached its conclusion, a committee chaired by George Wythe drafted an instrument of ratification saying that the new government would have only the delegated powers, and that those could be reclaimed whenever they were abused. It was Nicholas who, in that assemblage’s final significant speech, explained the meaning of voting for that instrument in the following way:
The Constitution cannot be binding on Virginia but with these conditions. If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote, that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted—I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.
(Incidentally, as to the last line, not just Nicholas but Governor Randolph used the word “expressly” in this way throughout the Richmond convention.) Not only did Marshall, setting the style for most of his students, label this explanation “antifederal,” but he also in McCulloch made much of the absence of the word “expressly” from the Tenth Amendment—thereby turning the Tenth Amendment into a warrant for reading the powers of Congress more broadly than the chief Federalists of the Richmond Ratification Convention had said they would be read if the Constitution went unamended. In other words, according to this reading, the Tenth Amendment broadens the powers of Congress!
One of the weakest bits of rhetoric Marshall deploys in his opinion concerns the pattern of governmental practice. There was a First Bank of the United States, he says. It was created by legislation passed by both houses of Congress, debated in the cabinet, and signed by the President. Now there is a second, nearly identical Bank, created in the same way. At this point, therefore, the constitutionality of a law chartering such a bank is no longer an issue. Daniel Webster, counsel for the Bank, made this assertion at oral argument. Surprisingly, Marshall experts generally find this argument persuasive. I for one can think of dozens of long-standing precedents that were deservedly overturned and several longstanding practices that should be ruled unconstitutional now. For the federal government to exercise power it was never granted does not over time make that exercise legitimate.
A final observation: Prominent Marshall scholars such as Gerald Gunther, Jean Edward Smith, G. Edward White, Richard Brookhiser, Beveridge, Newmyer, and Hobson have excused or praised (depending on one’s perspective) the Marshall Court’s McCulloch opinion by noting that without it, some or another significant event in history would have been different. Grant that. I am not persuaded that America would be worse were the Constitution enforced as the people were told by Federalists, for example in the Virginia Ratification Convention, that it would be. Self-government, which in this regard is living under a constitution to which the people consented, interpreted as they meant for it to be, is desirable in itself. (I take that to have been Madison’s point in referring to the ratification conventions in his letter to Roane.) Although prominent legal scholars assert that federalism is not inherently desirable, I disagree with them. Though not by the same route, then, I arrive at the same destination as Nelson Lund in his Liberty Forum essay.