Misreading McCulloch v. Maryland

95 Pages Posted: 4 Mar 2015 Last revised: 4 Jan 2016

David S. Schwartz

University of Wisconsin Law School

Date Written: March 2, 2015

Abstract

The conventional reading of McCulloch v. Maryland maintains that the opinion established the constitutional foundations of a broad conception of congressional power. This reading of McCulloch is part of a broader depiction of Chief Justice John Marshall as an "aggressive nationalist" and "nation builder" whose "spacious" interpretations of the powers of Congress contributed significantly to national unification and growth. This Article argues that the conventional account seriously misreads McCulloch by exaggerating its nationalism. Marshall, though a nationalist, was far more cautious and moderate in his views than the standard story holds, and the text of McCulloch reflects significant ambivalence about most of its most celebrated principles. In crafting the McCulloch opinion, Marshall systematically steered a moderate course relative to the arguments urged by the Bank's defenders and other prominent nationalists of the time. In particular, McCulloch avoided taking a clear position on any of the leading constitutional controversies of his day internal improvements, a national power over the money supply, and the scope of the Commerce Clause. Marshall also stopped conspicuously short of endorsing the Bank's lawyers' arguments for an extreme version of judicial deference to Congress's choice of means and its interpretation of the scope of its own powers.

Keywords: Marshall, McCulloch, implied powers, necessary and proper clause, enumerated powers, national bank, bank of the United States, nationalism, federalism, powers of Congress, congressional power, internal improvements

Suggested Citation

Schwartz, David S., Misreading McCulloch v. Maryland (March 2, 2015). 18 Penn. J. Con. L. 1 (2015); Univ. of Wisconsin Legal Studies Research Paper No. 1345. Available at SSRN: https://ssrn.com/abstract=2572408 or http://dx.doi.org/10.2139/ssrn.2572408

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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