White on McCulloch and Judicial Statesmanship

Adam White, George Mason University Antonin Scalia Law School, has posted John Marshall's Judicial Statesmanship in McCulloch v. Maryland, which he wrote for “a volume on the 200th anniversary of McCulloch v. Maryland, edited by Gary Schmitt for the American Enterprise Institute”:

Writing on the early American republic, Alexis de Tocqueville observed that federal judges "must not only be good citizens, educated and upright men," but "one must also find statesmen in them." Yet nearly 200 years later, notions of "judicial statesmanship" remain nebulous — and divisive. Nevertheless, both proponents and critics of "judicial statesmanship" seem to largely agree on one thing: "judicial statesmanship" requires a judge to go beyond the law to decide cases.

There is a better way to think of "judicial statesmanship." In his seminal study of statesmanship and party, Professor Harvey C. Mansfield, Jr. observed that "[i]t is not that a statesman is unprincipled or above principle; it is rather that his principle loses its refinement in the translation to public speech, and thence to party program.” This is how "judicial statesmanship" is best understood — not in terms of what the judge adds to the law, but in terms of what the judge declines to add to the law, or at least what the judge declines to say about the law. And this is the statesmanship that Chief Justice Marshall exemplified in McCulloch v. Maryland.

--Dan Ernst