Wednesday, May 1, 2019

Schwartz on Jackson's Bank Veto and McCulloch

David S. Schwartz, University of Wisconsin Law School, has posted Defying McCulloch? Jackson's Bank Veto Reconsidered, which is forthcoming in volume 71 of the Arkansas Law Review (2019):
President Andrew Jackson (LC)
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.
---Daniel Ernst

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