McCulloch v. Maryland

I provided extended analysis of the cases last time, so the start of a new Landmark Cases season warrants a follow-up.

Upfront, this opinion's symbolic character in various constitutional debates -- including its defense in "living constitution" [the term is at times a dig] circles -- was not fully addressed in the limited time period of the episode. First, we have a reminded that the Tenth Amendment does not have the word "expressly," thus "leaving the question whether the particular power which may become the subject of contest has been delegated to the one Government, or prohibited to the other, to depend on a fair construction of the whole instrument."  The Constitution provides "great outlines" with specifics to be "deduced from the nature of the objects themselves." Finally, there is an ongoing character regarding such "deduction."

This provision is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs. To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.

The beginning of the quote underlines the "government" is involved here, so it is not just a matter of Congress  and "a Constitution" applies things across the board. "Great outlines" are in place but specific applications will occur in ways the original authors "must have seen dimly."  So, if broad equal protection principles are applied to protect homosexuals, the mere fact that in 1868 it would not have been seen except quite dimly doesn't end the question.  The opinion appeals to original understanding so who is loyal to that?  Well, the criticism showed a battle there.

The dispute between Marshall and Jackson was touched upon, but much could be said about that as well, including arguably how the Jacksonian position is reflected in various ways by many today as well.  The pushback of the defense, e.g., of the Affordable Care Act and so forth by McCulloch/Marshallian rhetoric underlines the continuing debate. Gerard N. Magliocca has an interesting book on the historical battle there, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes.  Repeatedly, concerned about limited power are cited by conservatives (in certain cases), but opinion promoted broad national discretion:

Is it true that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity so strong that one thing to which another may be termed necessary cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the world or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another.

Marshall put his thumb on the side of national power, which was quite possible since the Constitution itself expanded it.  The opinion was careful to state that easily admitted fact that we have a limited government and that when any government (there being limits to both state and federal bodies) clearly crosses the line that judicial review will respond. But:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

The test is broad though has somewhat unclear contours. For instance, what does the "spirit" of the Constitution entail?  If Congress can establish a corporation, a monopoly at that, not expressly allowed by the Constitution ... that is if it is "proper" to do so under the Necessary and Proper Clause ... the words "necessary" and "proper" have both a broad and limited reach. After all, some argued -- unlike Marshall's Hamiltonian arguments [originally rejected as to the bank by the same person who eventually signed the law establishing the bank now at issue]  -- that the bank was not necessary or proper. Likewise, the opinion said states taxing a national bank was not "proper," not by express constitutional terms but by appeal to overall principle.  Such techniques can be used to restrict national power as well as we saw by the controlling opinion in the Affordable Care Cases.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The word "appropriate" is notable since it pops up in the Reconstruction Amendments and there is clear evidence that this opinion had influence [see the book cited as well as -- to jump ahead to next week -- the dissent in the Civil Rights Cases].  The limits of the Fourteenth and Fifteenth (Shelby v. Holder) has been an important them during the Rehnquist and Robert Courts with key cases being 5-4 battles. A telling except is the Boerne case, the main dispute [Souter and Breyer chose not to decide the federalism issue; Stevens and Ginsburg accepted it silently]  over the reach of the Free Exercise Clause. The concern there was that the Congress was not "enforcing" the amendment at all.  This would not be "appropriate."

Still, I think it reflects the means/end discussion of McCulloch -- Marshall basically said that as long as something was a necessary means to an end -- not an end in itself -- it was acceptable. RFRA was just to broad in that sense, apparently covering anything the state did. Shelby was more problematic since there was more an appropriate fit to the end.  The same applied to PPACA -- it clearly regulated more than one power and in respect to interstate commerce, the means was not in violation to the letter or spirit of the Constitution.  Use of a tax or regulation of commerce itself (by encouraging purchase) of those who are likely to directly and surely indirectly without "inference leveled on inference" to refer to U.S. v. Lopez [federal guns near schools law] where the link very well was weaker be involved in the health insurance market was not "improper."  The case to many of us was patently obvious, thus the ruling was offensive. 

Anyways. As touched upon in the episode, banking was a major policy concern in the era in question, battles over the Bank of the U.S. particularly striking during Jackson's presidency. As noted by the book cited, it might very well have been a historical accident that McCulloch v. Maryland itself held up. The opinion had a "Whiggish" character (Madison did eventually support the bank, but what if Jefferson/Madison's picks weren't largely nonentities and Federalist deep down Joseph Story?) and the election of William Henry Harrison (Whig) might have led to a conflict with the Taney Court. But, Harrison soon died, and Tyler was basically an anti-Jackson Democrat.

The case therefore continues to be of central importance regarding how to interpret the Constitution, the reach of governmental power and deep divisions (originally even among the two leading authors of the Federalist Papers) on basic questions.  This is so even though the basics of the case now seems fairly clear -- a few aside, sure most might say, Congress has the power to establish a national bank and state taxation of the then sizable amount of fifteen thousand dollars clearly would infringe on its power to do so. But, the reasoning will take us places many will not like.