Madison & Marshall on McCulloch v. Maryland:

In the comments on my previous post, Marty Lederman asks,

[W]asn’t the Madisonian view of the *Necessary &Proper Clause*, in particular, laid to rest in McCulloch v. Maryland, for better or for worse . . . ? If so, are you genuinely proposing a reconsideration of Justice Marshall’s apparent resolution of that question?

This is actually a rather complicated question that is not easily answered in a blog post. The short answer (which is here no more than an assertion) is that McCulloch v. Maryland was seriously “reinterpreted” by the New Deal Court to be much more permissive than it originally was written (as explained by David Currie in The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, p. 165). This was perhaps, Currie suggests, because Marshall failed to apply his own test to the case at hand.

Even so limited, Marshall’s opinion was widely condemned as a usurpation at the time it was issued, including by James Madison who, as President, had signed the very law that Marshall had upheld in the McCulloch. Wrote Madison:

[O]f most importance is the high sanction given to a latitude in expounding the Constitution, which seems to break down the landmarks intended by a specification of the powers of Congress, and to substitute, for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limit can be assigned.

Madison then both acknowledged the supposedly modern insight that the national economy is interconnected and rejected this as a basis for a latitudinarian interpretation of “necessary”:

In the great system of political economy, having for its general object the national welfare, everything is related immediately or remotely to every other thing; and, consequently, a power over any one thing, if not limited by some obvious and precise affinity, may amount to a power over every other thing. Ends and means may shift their character at the will and according to the ingenuity of the legislative body.

As Madison contended:

Is there a legislative power, in fact, not expressly prohibited by the Constitution, which might not, according to the doctrine of the court, be exercised as a means of carrying into effect some specified power?

For Madison, the main problem with the definition of “necessary” used by Marshall was that it made judicial review impractical: “Does not the court also relinquish, by their doctrine, all control on the legislative exercise of unconstitutional powers?” Madison objected to interpreting necessary as merely expedient or convenient, in part, because doing so would place the matter “beyond the reach of judicial cognizance. . . . By what handle could the court take hold of the case?” (For the entire text, click here.)

For his part, Marshall denied that his decision provided no effective limit to the powers of Congress. Writing anonymously as A Friend of the Constitution, he defended his decision in McCulloch:

In no single instance does the court admit the unlimited power of congress to adopt any means whatever, and thus to pass the limits prescribed by the Constitution. Not only is the discretion claimed for the legislature in the selection of its means, always limited in terms, to such as are appropriate, but the court expressly says, “should congress under the pretext of executing its powers, pass laws for the accomplishment of objects, not entrusted to the government, it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land.

Of course, there is much more pertinent evidence to be discussed, but I have confined myself to Madison’s reaction to McCulloch and Marshall’s denial that his decision in McCulloch provided a blank check to Congress. I think neither man’s views match Justice Scalia’s rendition of the Necessary and Proper Clause in his Raich concurrence, but certainly Madison’s does not.

The fundamental error is to read McCulloch and, for that matter, Gibbons v. Ogden through the eyes of the New Dealers. In Raich we contested neither case because we did not need to. Nor, for that matter, did we need to contest Darby or Wickard. It was the majority, joined by Justice Scalia, who decided to extend the Commerce Clause/Necessary and Proper Clause combo beyond Wickard—which upheld a statute that was limited by Congress to commercial farms over a certain size—to reach entirely personal noncommercial intrastate backyard behavior. I do not deny that, for decades, law professors have assumed that Congress had such broad powers, but even the New Deal Court never claimed this degree of power for Congress.

[Those who want to know more about the original meaning of the Necessary and Proper Clause can click here.)

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