Constitutional principles for the ages: McCulloch for Maryland

Chief Justice John Marshall’s landmark opinion for the Supreme Court in McCulloch v. Maryland (1819), articulated foundational principles that have shaped American constitutional law to this day.

In words that have become a legendary incantation, Chief Justice Marshall wrote: “We must never forget that it is a constitution we are expounding … a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

The Court’s ruling on key questions enmeshed in the controversy about the origins of the nation, the nature and parameters of federalism, and the scope of congressional authority, unleashed a firestorm of controversy.

Marshall wrote that the Constitution springs from the hands of the sovereign people, not the states. The Constitution, he emphasized, was a not a “compact” or agreement among the states, which is what the Articles of Confederation was. Rather, it was the result of the sovereign people approving, that is, ratifying the Constitution submitted by delegates to the Constitutional Convention. Southern opponents, particularly, expressed alarm about the ruling. Mississippi and Kentucky newspaper editorials warned that the Court’s ruling had “obliterated” state sovereignty and independence.

In sympathy with Kentucky and Mississippi, Virginia Judge Spencer Roane delivered a strong attack on McCulloch. His stature compelled Marshall to defend the Court’s decision in an unprecedented series of “off-the bench,” anonymous op-ed pieces, not discovered until 1967 when Gerald Gunther, one of the nation’s eminent constitutional law scholars, stumbled across them in the course of conducting research for a biography on Judge Learned Hand. In 1969, Gunther published Marshall’s op-writings in a book, “John Marshall’s Defense of McCulloch v. Maryland,” which answered the question raised by his contemporaries: Who has the knowledge to write such an insightful and detailed explanation of the Court’s reasoning in McCulloch?

The Court in McCulloch had upheld congressional authority to create the National Bank by adopting a broad interpretation of the Necessary and Proper Clause (Article I, section 8, paragraph). If Congress decided that the bank represented a “useful and convenient” means of carrying out its authority to “lay and collect taxes,” it was not the role of the judiciary to second-guess the policy choice of legislators. To reduce Congress, as Roane and other critics urged, through a “strict construction” of its powers, to those means absolutely “necessary” would, as Marshall wrote, “embarrass Congress” and exalt the Court as a supreme legislature.

In words made famous through their repetition, Marshall wrote for the Court: “Let the end be legitimate, let it be within the scope of the constitution; and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist within the letter and spirit of the constitution, are constitutional.” In an op-ed piece, Marshall argued that a strict interpretation of the Necessary and Proper Clause, if it did not “arrest the progress of government, it would certainly deny to those who administer it the means of executing its acknowledged powers.” Marshall meant to ensure that the nation possessed the powers necessary to govern.

Chief Marshall’s deference to Congress in the exercise of its constitutional powers reflect the Court’s exercise of judicial self-restraint. The alternative — judicial determination of the wisdom of policy choices — would have rendered Congress subordinate to the judiciary.

Looming large in Marshall’s defense of McCulloch v. Maryland was the matter of ensuring federal supremacy, as declared in the Supremacy Clause of Article VI. As Marshall expressed in a letter to Justice Joseph Story, “If the principles which have been advanced on this occasion were to prevail, the Constitution would be converted into the old confederation.” That was the essential thrust of Judge Roane’s criticisms. He, and others, found it very difficult to accept the fact that the Constitutional Convention had rejected the concept of state sovereignty in favor of popular sovereignty. As history revealed, that worldview died hard, particularly in the South. It is fair to say, moreover, that many in the region were not willing to accept the Court’s ruling until the Civil War ended with the surrender at the Appomattox Courthouse.

It is true that some in our nation continue to embrace a theory of state sovereignty that asserts the right of states to resist the federal government and federal laws. But those remote outposts do not command the respect of the nation. Rather, as Chief Justice Marshall wrote in his defense of McCulloch, “the United States is a nation.” In words that resonate in our time, he warned Americans to think carefully about plunging our nation into the chaos and weakness it suffered under the Articles of Confederation. It was, after all, “We the People” that rescued the nation from the disaster of the Articles and created through the Constitution, a viable, effective and sustainable republic.