The Destructive Legacy of McCulloch v. Maryland

McCulloch v. Maryland at 200, Gary J. Schmitt, editor. (Forthcoming)

George Mason Legal Studies Research Paper No. LS 19-13

36 Pages Posted: 15 Aug 2019

See all articles by Nelson Lund

Nelson Lund

George Mason University School of Law

Date Written: August 13, 2019

Abstract

McCulloch v. Maryland is probably the Supreme Court’s single most influential opinion, and certainly one of its most celebrated. As countless commentators have recognized, McCulloch’s importance arises from its doctrine of implied congressional powers, which has been applied even to constitutional amendments adopted decades after the McCulloch decision itself. Revered though it may now be, Chief Justice Marshall’s opinion provoked a hostile commotion when it was issued. So much so that he was moved to defend it in a series of anonymous newspaper essays. The opinion remained controversial for many years, and it deserves to become controversial once again.

Like Marshall, all of the current Justices can say that the abstract principle of limited and enumerated powers is “now universally admitted.” But the legacy of his opinion has been the effective destruction of that principle. McCulloch famously proclaimed that “we must never forget, that it is a constitution we are expounding.” This sonorous aphorism is frequently, if unnecessarily and improperly, taken to mean that it is merely a constitution, which judges are free (or obligated!) to amend under the guise of interpretation. That attitude has triumphed historically, and perhaps irrevocably. Constitutional law is widely regarded now as a branch of political philosophy or as a field on which to play junior varsity statesmanship. Or, not infrequently, as an arena for flamboyant moral posturing or as a weapon of partisan warfare.

Rather than submissively celebrate these developments, we could choose to stop forgetting that the Constitution was originally meant to be a law, and that it was meant to be more authoritative than what the Supreme Court says about it. If we did, McCulloch and its rank progeny would become controversial once again.

Keywords: Supreme Court, Constitution, Congress, Implied Powers, Necessary and Proper Clause

JEL Classification: K1, K10, K3, K30

Suggested Citation

Lund, Nelson Robert, The Destructive Legacy of McCulloch v. Maryland (August 13, 2019). McCulloch v. Maryland at 200, Gary J. Schmitt, editor. (Forthcoming); George Mason Legal Studies Research Paper No. LS 19-13. Available at SSRN: https://ssrn.com/abstract=3436876

Nelson Robert Lund (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)

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