Schwartz on McCulloch and the Incoherence of Enumerationism

Former LHB Guest Blogger David S. Schwartz, University of Wisconsin Law School, has posted McCulloch v. Maryland and the Incoherence of Enumerationism, which is forthcoming in the Georgetown Journal of Law & Public Policy 19 (Fall 2020):

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.

--Dan Ernst