McCulloch v. Maryland and the Incoherence of Enumerationism

19 Georgetown Journal of Law & Public Policy (Fall 2020, Forthcoming)

Univ. of Wisconsin Legal Studies Research Paper No. 1581

50 Pages Posted: 12 Feb 2020

See all articles by David S. Schwartz

David S. Schwartz

University of Wisconsin Law School

Date Written: February 10, 2020

Abstract

The theory and jurisprudence of American federalism remains a muddle. The Supreme Court has never managed to settle three intertwined jurisprudential questions of federalism.

(1) Can an effectual national government with implied powers be meaningfully limited to a set of enumerated powers?

(2) Can the Tenth Amendment's concept of reserved state powers be presumptive, or meaningfully specified under a system of implied national powers?

(3) Can the federal and state governments meaningfully be called "sovereign" in either of the two distinct senses usually meant?

The ideology of "enumerationism" - that the Constitution creates a national government of limited enumerated powers - answers these questions yes. But McCulloch v. Maryland answered these questions no, and is therefore at odds with enumerationism. A limiting enumeration is incompatible with McCulloch's conception of a grant of implied powers compatible with an effective national government that can address national problems without reliance on the states. McCulloch clearly rejected the various versions of implied powers that were aimed at preserving a limiting enumeration. Moreover, as McCulloch makes clear, a system of implied national powers cannot be reconciled with "reserved" state powers having any definable content. Implied powers can grow and change with new circumstances and new legislative ideas, and therefore cannot be specified in advance, making it impossible to specify a "reserve" of state powers that excludes federal regulation. Finally, McCulloch recognized that federal supremacy necessarily makes the makes the states "subordinate governments" that lack power to block prima facie federal powers, whether express or implied. McCulloch thereby rejected the idea that state sovereignty is either a power to resist federal implied powers or a mirror image of a limiting enumeration of federal power.

Keywords: federalism, McCulloch v. Maryland, John Marshall, reserved state powers, sovereignty, state sovereignty, limited enumerated powers, Tenth Amendment, Necessary and Proper Clause, implied powers, James Madison

JEL Classification: K40

Suggested Citation

Schwartz, David S., McCulloch v. Maryland and the Incoherence of Enumerationism (February 10, 2020). 19 Georgetown Journal of Law & Public Policy (Fall 2020, Forthcoming); Univ. of Wisconsin Legal Studies Research Paper No. 1581. Available at SSRN: https://ssrn.com/abstract=3535750

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
31
Abstract Views
75
PlumX Metrics