America's Unwritten Constitution: The Precedents and Principles We Live By (6 page)

WERE SOME FUTURE GENERATION EVER
to erect a monument to America’s greatest judicial decisions—a case-law version of Mount Rush-more—
McCulloch v. Maryland
would surely make the final cut. So would
Marbury v. Madison
and
Brown v. Board of Education
, but unlike most other landmark cases,
McCulloch
deserves its place in the pantheon for its style as well as its substance. To read
McCulloch
is to behold the art of constitutional interpretation at its acme.

The
McCulloch
case arose when Maryland tried to impose a targeted tax on the Bank of the United States—a bank that Congress had initially set up in 1791 and had revived in the wake of the War of 1812. In an opinion by Chief Justice Marshall writing for a unanimous bench in 1819, the
McCulloch
Court decided two important issues. First, the Court held that Congress had acted within its constitutional powers in creating and renewing the national bank. Second, the justices ruled that no state could, in the absence of congressional consent, impose a tax on that bank.

This much is well understood by both modern civics textbooks and modern Court opinions. But the actual chain of constitutional argumentation that Marshall forged to reach these results has become twisted in the modern retelling. Prominent modern citations to
McCulloch
are miscitations, treating the opinion as if it rested on certain explicit constitutional clauses. In fact, Marshall repeatedly relied not on explicit clauses but on the implicit meaning of the Constitution as a whole.

Begin with the first issue decided by
McCulloch
—the question of congressional power to create a national bank. Ask a lawyer or a knowledgeable layperson to name the basis for Marshall’s decision, and he will probably point you unhesitatingly to the necessary-and-proper clause. This clause—the concluding language of Article I, section 8, of the Constitution—declares that “Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

According to conventional wisdom,
McCulloch
read this specific clause as giving the federal government important additional powers—powers above and beyond those conferred on the central government by the preceding (“foregoing”) clauses of Article I, section 8, such as the powers to regulate interstate commerce and to raise armies. In a notable 2005 case,
Gonazales v. Raich
, Justice Antonin Scalia cited
McCulloch
for exactly this point. (The issue in
Raich
was whether Congress had power to criminalize medicinal marijuana use in a situation where a state had legalized medicinal use. By a vote of six to three, the Court sided with Congress.) All told, the various justices who wrote opinions in
Raich
cited
McCulloch
ten times, and while they disagreed about many things, no one took issue with Justice Scalia’s claims that
McCulloch
had relied on the necessary-and-proper clause and had read that clause as adding to the other powers enjoyed by the central government.
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In fact,
McCulloch
did no such thing.
McCulloch
said something closer to the opposite—that perhaps the necessary-and-proper clause conferred no additional power on the federal government.
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Before Marshall in
McCulloch
said a single word about this clause, he declared that the Constitution as a whole seemed to empower Congress to create a national bank and that anyone who thought otherwise must shoulder the burden of proof. According to Marshall, even “in the absence” of a necessary-and-proper clause, congressional power should be read in a generous and commonsensical way so as to achieve the basic purposes for which the American people had established the Constitution. Marshall believed that, had the Constitution not contained a necessary-and-proper clause, Congress would nonetheless enjoy considerable flexibility in exercising its “great powers,” including the powers to regulate interstate commerce and to raise armies. Such flexibility, wrote Marshall, surely encompassed the power to create a national bank.

True, Marshall did devote several pages to the necessary-and-proper clause. Marshall claimed that Maryland (which was attacking the bank) had invoked the clause to
limit
what would otherwise be the broad natural sweep of the earlier enumerated powers of Congress. It was enough for Marshall to show—and it was all he purported to show—that the necessary-and-proper clause did not subtract anything from the earlier enumerations of federal power. Whether the clause added power, Marshall pointedly declined to say. Perhaps, he suggested, the clause did expand power. “Its terms purport to enlarge, not to diminish.” Or perhaps, he mused, the clause simply was meant to “remove all doubts” that all the other congressional powers should be read with suitable breadth. Either way—whether the clause was a plus or merely a zero so far as federal power was concerned—it was not a minus, said Marshall. The clause “cannot be construed to restrain” the earlier enumerated powers.

There is a reason why
McCulloch
has been so widely misread. The necessary-and-proper clause is a concrete and seemingly specific text. Like the ex-post-facto clause, it is something, we instinctively feel, that judges and other faithful interpreters may properly “take hold of.” By contrast, we may worry that once a judge goes beyond a specific clause, he might simply make things up, faithless to his constitutional oath. The thought that Marshall may have been faithless in perhaps the most canonical Court decision of all time unnerves us. So Marshall is depicted as a narrow textualist, building his constitutional church on the solid rock of an explicit clause.
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Marshall in
McCulloch
was indeed a faithful interpreter, but he was not a clause-bound textualist. Rather, he elegantly blended a close reading of the written Constitution with a sensitive understanding of America’s unwritten Constitution.

He began by stressing that not everything in the Constitution was, or could sensibly be, explicit. Some things were merely implied. “Among the enumerated powers, we do not find that of establishing a bank.…
But there is no phrase in the instrument which… excludes incidental or implied powers; and which requires that every thing granted shall be expressly and minutely expressed”
(emphasis added). Later in this section, he reiterated that he read the Constitution as generally giving Congress an “
implied”
authority “of selecting means for executing the enumerated powers” (emphasis added).

The need for such implications was not due to poor draftsmanship at Philadelphia. Rather, Marshall insisted, this need derived from the very essence of the Constitution as an embodiment of American popular sovereignty. If every aspect of constitutional law—every constitutional power, every constitutional limit on power, every minor constitutional exception and niggling qualification to a general constitutional rule, every constitutional principle entitled to weight in constitutional interpretation—had to be expressly and minutely included in the text of the Constitution itself, the document would, said Marshall, “partake of the prolixity of a legal code.” (He had in mind here something like today’s tax code.) Such a detailed and labyrinthine text “would probably never be understood by the public.” At that point, the essence of America’s Constitution as the people’s law—as a terse, accessible text that had been understood, debated, and ratified by the people, and that could thereafter be understood, interpreted, and, if necessary, amended by the people—would have been fatally compromised.

If not the necessary-and-proper clause, then which enumerated powers authorized Congress to create a national bank? The chief justice did almost all the heavy lifting in a single paragraph that did little more than gesture toward a cluster of clauses. None of these clauses did Marshall closely parse. Several he only paraphrased:

       
Although, among the enumerated powers of government, we do not find the word “bank” or “incorporation,” we find the great powers
to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government.…A government, entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution.

Viewed one by one, virtually every clause that Marshall invoked can be dismissed if read in a narrow, literalistic, autistic way—the way Congressman James Madison read them in 1791, when he (unsuccessfully) argued in the House of Representatives against the constitutionality of the first national bank. Strictly speaking, the law creating the bank did not
itself
lay taxes or borrow money. As a matter of strict logic, one can imagine an army without a bank, and a bank without an army. And so on.
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Marshall’s constitutional genius was to grasp that Americans had not ratified the Constitution clause by clause, enumerated power by enumerated power. The people had ratified the Constitution as a whole, and thus the federal government’s powers needed to be read as a whole rather than as a jumble of discrete clauses. In Marshall’s words, the question of federal power should “depend on a fair construction of the
whole instrument”
(emphasis added), read through the prism of the general purposes that the American people had in mind when they framed and ratified the document.

In one of
McCulloch’s
most quotable—if least understood—lines, Marshall stressed (with italics) that “we must never forget, that it is
a constitution
we are expounding.” Three intertwined ideas lay close to the surface of this reminder. First, the Constitution could not remain true to its nature as a document from and for the people were it to become overly long and intricate. Here, the distinction was between “a constitution” and a code. Second, the Constitution warranted rules of interpretation that were different from those of the earlier Articles of Confederation, which, Marshall reminded his readers, had openly purported to “exclude[] incidental or implied powers.” Here, the distinction was between “a constitution” and
a pure confederation based entirely on state sovereignty. Third, the Constitution was a “whole instrument.” Here, the distinction was between “a constitution” and an assortment of clauses read in disjointed fashion.

McCulloch
’
s
pivotal paragraph exemplified Marshall’s trademark brand of holistic analysis. The great chief proceeded in three steps. Step One: The central purpose of the Constitution was to safeguard national security across a vast continent. This was apparent when one pulled back from specific clauses and saw the big picture—in Marshall’s words, “[t]he sword and the purse.” (Though Marshall did not mention it, this purpose was also evident in the words “common defence” and “general Welfare,” which appeared both in the Constitution’s Preamble and at the outset of Congress’s enumerated powers.) Step Two: Creating a national bank fit sensibly within that central purpose, given all the ways that a continental bank might facilitate continental defense. In particular, Marshall underscored that a national bank with branches across the land could ensure that American soldiers—who might need to march from “the St. Croix to the Gulph of Mexico, from the Atlantic to the Pacific”—would be paid on site and on time. (As a veteran of Valley Forge, Marshall knew deep in his bones how all could be lost if men at a decisive time and place deserted or deteriorated for want of funds or supplies.) Step Three: This kind of sensible fit with the Constitution’s broad purposes, as opposed to a mathematically perfect nexus between a statute and a specific empowering clause, was all that was required. Had the Constitution’s words “imperiously require[d]” a tighter fit, judges would “have only to obey.” Absent an explicit constitutional command to this effect, the commonsensical connection between a national bank and national defense (not to mention national fiscal operations more generally) would easily suffice.

WITH THIS ANALYSIS OF ENUMERATED
powers in mind, let’s now return to Marshall’s discussion of the necessary-and-proper clause. Why, we might wonder, didn’t Marshall try to expand federal authority still further by arguing that the necessary-and-proper clause added something extra to the previous enumerations? Given that the clause, as Marshall read it, did not subtract from the earlier enumerations, what was its purpose if it did not add some extra power?

Marshall suggested that perhaps the clause was merely
declaratory
of what would have been the best reading of the Constitution even had this clause not existed. Viewed this way, the clause aimed neither to increase nor decrease federal power but rather to add clarity and remove doubt. With this clause in place, it would be plain to all that, in sharp contrast to the old Confederation’s Congress, the new Constitution’s Congress would have some latitude in implementing its enumerated powers.

This was how the clause had been presented to the American people by leading Federalists during the ratification period. In the first major battleground state to hold a ratifying convention, Pennsylvania, James Wilson explained that the clause “say[s] no more than that the powers we have already particularly given, shall be effectually carried into execution.” Writing as “Publius,” Alexander Hamilton in
The Federalist
No. 33 admitted that the clause “might be chargeable with tautology or redundancy” because it was added merely for clarity and “greater caution” to guard against a stingy reading of the other enumerated powers. Madison/Publius echoed the point in
The Federalist
No. 44. Even without this explicit clause, “there can be no doubt that all the particular powers requisite as means of executing the general powers would have resulted to the government
by unavoidable implication”
(emphasis added).
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