Friday, March 6, 2015

Schwartz on Misreading McCulloch v. Maryland

David S. Schwartz, University of Wisconsin Law School, has posted Misreading Mcculloch v. Maryland.  Here is the abstract:    
The conventional reading of McCulloch v. Maryland maintains that that opinion established the constitutional foundations of a broad conception of congressional power. This reading of McCulloch is part of a broader depiction of John Marshall as an “aggressive nationalist” and “nation builder” whose “spacious” interpretations of the powers of Congress contributed significantly to national unification and growth.

This article argues that the conventional account seriously misreads McCulloch by exaggerating its nationalism. Marshall, though a nationalist, was far more cautious and moderate in his views than the standard story holds, and the text of McCulloch reflects significant ambivalence about most of its most celebrated principles. In crafting the McCulloch opinion, Marshall systematically steered a moderate course relative to the arguments urged by the Bank’s defenders and other prominent nationalists of the time. In particular, McCulloch avoided taking a clear position on any of the leading constitutional controversies of his day — internal improvements, a national power over the money supply, and the scope of the commerce clause. Marshall also stopped conspicuously short of endorsing the Bank’s lawyers’ arguments for an extreme version of judicial deference to Congress’s choice of means and its interpretation of the scope of its own powers.