Mcculloch and the Fourteenth Amendment
27 Pages Posted: 21 Jun 2004
The issue of the nature and scope of Congress' enforcement power under section five of the Fourteenth Amendment has been a source of ongoing debate and discussion since the adoption of that amendment. This dispute has only intensified since the Supreme Court's 1997 decision in City of Boerne v. Flores, which limited congressional power to remedial, rather than substantive, measures through a "congruence" and "proportionality" test.
City of Boerne has been the target of extensive attack from the date of its decision. Chief Justice John Marshall's classic 1819 opinion in McCulloch v. Maryland has been one of the main clubs used by critics to beat up on the Court here. Although McCulloch was a Commerce Clause case decided a half century before the adoption of the Fourteenth Amendment, its relevance to City of Boerne is manifest. Both the framers of the amendment and its early judicial interpreters hearkened back to Marshall's "necessary and proper" analysis of Congress' power to enforce its enumerated powers.
My paper develops two ironies in the McCulloch-based critique of City of Boerne. The first and larger irony derives from the fact that these critics misunderstand McCulloch. Despite the appearance given by the progress of the controversy to date, the Court's opinion in City of Boerne is, in fact, consistent with Marshall's McCulloch doctrine of Congress' enforcement (he would say "incidental") powers. Marshall's doctrine, which derives from Alexander Hamilton's arguments in "The Federalist Papers" and "Opinion on the Constitutionality of the Bill for Establishing a National Bank" and which is also repeated in Joseph Story's "Commentaries on the Constitution," places a means/ends limitation on the exercise of Congressional enforcement power, not the looser rational basis non-limit proffered by City of Boerne critics.
The means/ends or "necessary and proper" doctrine of congressional enforcement/incidental power finds support not merely in history and precedent, but also in the text of the Constitution (especially the "Necessary and Proper Clause") and the structure of the government it puts in place (a federal system, no longer a confederation, and not a unified national system like England or France).
The second and double irony is that the very doctrine put in Marshall's mouth by contemporary doubters of City of Boerne is precisely that with which he was accused in the 1819 attack on McCulloch by the "Richmond Junto" and which he refuted in his pseudonymous defense as a "Friend of the Union."
Keywords: McCulloch, constitution, fourteenth amendment, enforcement power
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