Defying McCulloch? Jackson's Bank Veto Reconsidered

36 Pages Posted: 26 Apr 2019 Last revised: 21 Jul 2019

See all articles by David S. Schwartz

David S. Schwartz

University of Wisconsin Law School

Date Written: April 25, 2019

Abstract

Andrew Jackson's 1832 veto of the bill to recharter the Second Bank of the United States is conventionally understood as a monumental rejection of judicial supremacy, in which the President defied the Supreme Court's constitutional ruling in McCulloch v. Maryland and asserted the right of the president to interpret the Constitution independently. Constitutional scholars view the Bank Veto as the archetypal statement of "departmentalism," the view that each branch of the government has the power and duty to interpret the Constitution for itself. As revisionists have pointed out, however, that extreme characterization of the Bank Veto is plainly wrong: by saying only that the Bank was constitutional, McCulloch necessarily left discretionary space on policy grounds to reject a national bank. And by leaving the "degree of necessity" to congressional determination, McCulloch allows legislators " and the President, who acts in a legislative capacity when considering whether to sign a bill into law " to decide that a legislative proposal is unconstitutional for reasons not necessarily discussed by the Supreme Court. In this article, I argue that both accounts are radically incomplete. The Bank Veto Message, ghost-written in large part by future Chief Justice Roger B. Taney, was a lawyerly doctrinal text, offering a road map for an impending Taney Court jurisprudence of states' rights that does not defy, but subtly undermines McCulloch's conception of implied federal powers without overruling McCulloch.

Keywords: Andrew Jackson, John Marshall, McCulloch v. Maryland, Second Bank of the United States, bank veto, bank veto message, departmentalism, Taney Court, states' rights, judicial supremacy, federalism, separation of powers

JEL Classification: K40

Suggested Citation

Schwartz, David S., Defying McCulloch? Jackson's Bank Veto Reconsidered (April 25, 2019). 71 Ark. L. Rev. 129 (2019), Univ. of Wisconsin Legal Studies Research Paper No. 1472, Available at SSRN: https://ssrn.com/abstract=3378234

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

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Madison, WI 53706
United States

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