Wrapping up the long-running symposium at Balkinization on his book The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David Schwartz responds to an earlier post on the book by Kurt Lash.
From Professor Lash's review (which is long and difficult to fairly excerpt):
Marshall’s emphasis on what is omitted from the Tenth Amendment altogether ignores what is in the Tenth Amendment—an inescapable declaration that we have a federalist Constitution. In his View of the Constitution, Tucker pointed to both the language of the Ninth and Tenth Amendments as jointly calling for a rule of strict construction. Marshall’s rule of nationalist construction dismisses the significance of the Tenth and ignores the Ninth altogether.
In his book, Schwartz tries to persuade the reader that McCulloch is not an “aggressively nationalist” opinion. When viewed in the historical context in which it was first handed down, however, it is clear that McCulloch was radically nationalist. Marshall sought to displace (indeed, up-end) what had been the dominant theory of the Constitution since the election of 1800 and which were articulated in the deeply influential writings of James Madison.
…
Although John Marshall’s reverse-Tenth Amendment reading of national power ultimately became the darling of the New Deal Court, Marshall’s account of our constitutional origins has never been particularly convincing. When the Rehnquist Court restored the idea of limited construction of federal power, it also restored a more historically plausible account of the Constitution as emanating from the still sovereign people of the several states. True, the Constitution brought into being a national people (rendering secession unconstitutional), but in doing so it created a system of dual sovereignty, a system preserved by the people in 1868 despite radical Republican efforts to erase American federalism.
Schwartz is entirely correct that, despite its mythological status, the nationalist possibilities of Marshall’s opinion in McCulloch v. Maryland have never been fully realized. Schwartz blames this failure, in part at least, on Marshall’s sometimes ambiguous language. But equal blame must fall on Marshall’s effort to spin a myth of his own–the myth of a fully nationalist Founding. One could, of course, argue that Madison and Tucker were spinning myths when they described the Constitution as a dual-federalist compact. Nevertheless, in the case McCulloch v. Madison, it is Madison’s vision that informs the opinions of the modern Supreme Court.
Schwartz therefore is right to bury the myth of McCulloch. But in doing so, we should recognize McCulloch for what it was—a failed effort to bury the federalist interpretive theories of James Madison and reinvent the nature and origins of the American Constitution.
Professor Schwartz responds, in part:
Kurt Lash is a superb constitutional historian trapped inside the body of an originalist. He is one of the few originalists bold enough to acknowledge that McCulloch v. Maryland needs to be ejected from the (conservative) originalist canon of great constitutional cases. While he attributes to me an intention “not to praise the mythological McCulloch, but to bury it,” it is Lash who seeks to bury McCulloch, which he views as a fraudulent “story of our constitutional origins.”
Characteristically, Lash’s debatable conclusions and interpretations are accompanied by keen and erudite historical insight. The centerpiece of Lash’s post is an implicit debate between John Marshall and St. George Tucker, the William and Mary law professor, judge, and author of the first major treatise on American constitutional law. For Lash, Marshall channels the nationalist view of broadly construed national powers, whereas Tucker advocates “Tucker’s rule,” requiring that the Constitution “be construed strictly, in all cases where the antecedent rights of a state may be drawn in question.”
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Lash is less convincing when he takes off his historian hat and puts on his originalist hat. Lash chides me for being “never completely clear” on what I think is “the correct reading of the Constitution.” But I take it as praise, rather than criticism, that I did not reduce the ongoing 230-year conflict over federalism to a single “correct reading of the Constitution.” …
Lash insists that Tucker’s rule supplies the “correct” (originalist) reading of the Constitution, requiring that federal powers be narrowly construed whenever they touch on reserved state powers. By rejecting Tucker’s rule and compact theory, Lash argues, Marshall tries to “reshape the story of our constitutional origins” by turning it into a mythical, nationalist one. But at this point, Lash offers a competing myth of his own. He relies heavily on James Madison’s mythical reputation as “father of the Constitution” to claim that Madison’s belated, politically motivated adoption of compact theory in the late 1790s is the true “original meaning” of the Constitution. In doing so, Lash ignores Madison’s earlier views in the Framing and ratification periods, that the national government’s powers were not ceded by the states, but were instead derived directly from the people, who redistributed powers from the states to create a national government with supremacy over the states. (Recall Madison’s cherished proposal at the Convention for a national legislative veto over all state laws.) Lash’s constitutional origin story also asks us to ignore the views of George Washington, James Wilson, Gouverneur Morris, and indeed the dominant majority of the 1787 Convention; the ratification debates over federal power, the Federalist party, Daniel Webster, Henry Clay and the national Republicans — in short, one entire side of the debate over national powers that began with the founding and has been, in Marshall’s words, “perpetually arising.” To read Tucker’s rule as the sole “original” and therefore “correct” interpretation of the Constitution’s grant of powers to the national government is to read half of constitutional history out of history.
Posted at 6:31 AM