Tenth Amendment Center: McCulloch v Maryland Supreme Ct Did NOT Support Expansive Federal Power

Chief Justice John Marshall

This article at the Tenth Amendment Center discusses the McCulloch v Maryland case. Harvard Law Today earlier this year said that the 1819 case paved the way for the modern administrative case. But Constitutional scholar Rob Natelson here says that this was not the intent Chief Justice John Marshall’s opinion at the time, but rather that the case in point was a much narrower ruling.

Why McCulloch v. Maryland – now 200 years old – is not a “big government” manifesto

…There are at least two well-grounded reasons Marshall’s opinion in McCulloch is important. The first is that it clarified some basic facts about the constitutional system.

McCulloch explained that the people, not the states, created the federal government and granted its powers. As a young lawyer, Marshall had been a leading spokesman for the Constitution, particularly in Virginia. In McCulloch, Marshall explained—as James Madison had before him—that the Constitution’s legal force comes from approval by popularly-elected state ratifying conventions meeting from 1787 through 1790.

It follows that the first rule of constitutional interpretation is the understanding of the ratifiers. It is not, as some conservatives say, the “intent of the framers” or “the original public meaning.” Nor should we, some liberals contend, construe the Constitution through “evolving social standards” or novel interpretive theories.

Moreover, McCulloch clarified that under the Constitution state and federal governments operate fairly independently of each other. Neither level of government should try to dictate to the other nor obstruct the other’s core functions. Because Congress designed the national bank to assist Congress in carrying out its core functions, McCulloch voided a state attempt to tax the bank.

The second reason McCulloch is so important is Marshall’s use of established law and legal methods—rather than tailor-made theories—for interpreting the Constitution. This is noteworthy in his discussion of whether the national bank was valid under the Constitution’s Necessary and Proper Clause.

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “The Congress shall have Power . . . To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution list of explicit powers does not include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carrying out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions…

…In the 20th century, the Supreme Court cited McCulloch to uphold unprecedented federal spending and regulatory programs. Law school constitutional law courses sometimes treat McCulloch the same way.

But with all respect, this approach is the product of historical ignorance. Those who depict McCulloch as a “big government” decision generally are unaware of how the Founders understood the Necessary and Proper Clause and how the bank debates of 1791 focused on the details of incidental powers law. They usually are unaware of critical changes in the English language—such as the fact that when Marshall’s used the words “convenient”and “appropriate” they embodied narrower and tougher standards than they do today. Without that kind of historical perspective, McCulloch is a difficult case to understand…

Click here to read the entire case at the Tenth Amendment Center.

Tenth Amendment Center: How Our Constitution Was Supposed to Work

Constitutional scholar and co-author of The Origins of the Necessary and Proper Clause  and The Original Constitution Rob Natelson has written an article based on information from newly re-published essays by founder Tench Coxe about some limitations on federal power that were known and spelled out by the founding fathers.

How our Constitution was supposed to work: new evidence comes to light

Judging by the promises of presidential candidates, you might think the federal government is designed to fix whatever ails us: health care, education, crime, infrastructure, the common cold.

But the Constitution doesn’t grant the federal government such unlimited authority. And neither Congress nor the presidency nor the courts were created to exercise it.

The Constitution fashioned the federal government to address a limited number of activities, contained in the document’s “enumerated powers.” The remainder were exclusively the domain of state and local government and the private sector. This system of divided authority is called “federalism.”

…Despite the Constitution’s federal structure, many in the founding generation didn’t think it limited the central government sufficiently. They wanted to be able to govern themselves in their own states and local communities. They didn’t want Congress or federal judges or officials imposing uniform policies on the entire country.

These members of the founding generation had good reasons for fearing centralized power. They knew their history: Concentrated power usually grows into oligarchy or dictatorship. They questioned whether Congress would have the information or judgment necessary to tailor laws for every nook and cranny in the nation. They recognized that when government remained local, citizens enjoyed more say in how it was run. If someone was severely disaffected with state policies, he always could move to a different state.

This option of moving away is a vital safety valve. Without it, there is no practical way to vent anger among persistent political losers. Anger gives rise to hate: Hate fosters divisiveness and repression and, and in extreme cases, civil war.

Indeed, modern federal efforts to impose uniform “solutions” on the entire nation may be a leading cause of today’s toxic political environment.

…Coxe’s essays itemize many of the activities over which the Constitution granted the federal government little or no jurisdiction. Among them were social services (i.e., care for the poor and health care), education, religion, real estate, local businesses, most roads and other infrastructure, nearly all criminal law matters, and most civil court cases.

When people believed government should regulate those areas, the Constitution mandated that they turn to state and local government. No fleeting national coalition would be permitted to dictate to the entire country…

Click here to read the entire article at the Tenth Amendment Center.