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Alexander Hamilton’s “Implied Powers” Wrecked the Constitution

During the ratification debates, supporters of the Constitution insisted that the new general government would only exercise the powers explicitly enumerated in the document. But less than three years after ratification, Alexander Hamilton did a complete 180, suddenly discovered “implied powers” and wrecked the Constitution.

During the Philadelphia Convention, many framers favored a strong national government. In fact, James Madison even proposed a federal veto on state laws. But as the convention wore on, delegates voted down proposals to create a centralized “national” government one by one – including Madison’s federal veto. The Constitution that emerged from the Convention created a general government with a few, defined, enumerated powers.

Opponents of the Constitution warned that the proposed “federal” government would quickly grow in power and scope. But, supporters of the Constitution, including Hamilton, swore this wouldn’t happen. They “sold” the Constitution to a relatively skeptical public by promising that the general government would not be able to go beyond the specific powers laid out in the document.

James Madison gave perhaps the most succinct and clear explanation of the limited nature of the federal government in Federalist #45.

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce; with which the last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.” [Emphasis added]

Harry Lee, a delegate to the Virginia ratifying convention, emphasized the limited nature of the proposed government as he summed up the proper way to interpret the Constitution.

“It goes on the principle that all power is in the people, and that rulers have no powers but what are enumerated in that paper. When a question arises with respect to the legality of any power, exercised or assumed by Congress, it is plain on the side of the governed. Is it enumerated in the Constitution? If it be, it is legal and just. It is otherwise arbitrary and unconstitutional.” [Emphasis added]

Even Hamilton took up the limited federal power banner, writing in Federalist #32.

“The State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.” [Emphasis added]

It didn’t take Hamilton long to change his tune. Less than three years after the ratification of the Constitution, Hamilton discovered “implied powers” hidden in the Constitution to justify Congress chartering the First Bank of the United States.

Opponents of the bank, including Thomas Jefferson and James Madison, argued that the lack of specific delegated authority barred Congress from chartering a bank. In response, Hamilton affirmed the doctrine of delegated powers, and then effectively nullified its limiting force. He wrote, “The main proposition here laid down, in its true signification is not to be questioned.” But he continued, insisting, “It is not denied that there are implied as well as express powers, and that the former are as effectually delegated as the latter.”

It’s important to note that had such a concept been advanced during the ratification debates, the states would have never adopted the Constitution.

Madison warned against “the doctrine of implication,” saying, “the danger of it has been felt in other governments. The delicacy was felt in the adoption of our own; the danger may also be felt, if we do not keep close to our chartered authorities.”

The question becomes: who decides the extent of these implied powers? Who determines their limits?

In effect, Hamilton conjured up an almost unlimited reservoir of power the general government can dip into in order to take whatever actions it deems appropriate. Again, this was a 180-degree reversal from the position he took during the ratification debates when he insisted that the new general government would only have the authority to exercise its expressly enumerated powers.

Hamilton’s arguments won the day and Geroge Washington signed the bill chartering the First Bank of the United States.

Hamilton’s victory was a profound defeat for the Constitution. His “implied powers” doctrine set the stage for much of the federal overreach we live with today. Hamilton effectively flipped the constitutional structure on its head. Instead of exercising powers “few and defined,” the powers of the federal government today are “numerous and indefinite.”

The post Alexander Hamilton’s “Implied Powers” Wrecked the Constitution first appeared on Tenth Amendment Center.

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The Founders’ words were not “meaningless” or “vague”

A common accusation, especially from liberal academics and judges, is that many constitutional phrases are vague or meaningless. Or, as stated by former Supreme Court Justice William J. Brennan, they are “luminous and obscure.”

Advocates of an all-powerful central government draw two lessons from their belief that constitutional clauses are vague. The first is that the document doesn’t deserve great respect because it isn’t well drafted. The second is that vagueness justifies a very wide scope for exercise of federal and judicial power.

But the charge of “vagueness” is based on ignorance. The usual reason critics think constitutional phrases are vague or meaningless is that they don’t know that those phrases had specialized meanings in 18th century law. The Constitution is a legal document, and most of the framers and leading ratifiers were top-flight lawyers. In the founding era, even the general public was unusually knowledgeable about law. Hence, many of the Constitution’s ordinary-sounding expressions are packed with legal content. Here are some illustrations:

  • “regulate … Commerce,”
  • “establish Post Offices,”
  • “post Roads,”
  • “natural born Citizen,”
  • “Corruption of Blood,”
  • “Privileges and Immunities,” and
  • “necessary and proper.”

Several years ago I wrote a book explaining these and other terms. Behind that book were many individual investigations into the true meaning of constitutional words and phrases. Following is the story of one investigation.

Critics leveling the “vagueness” charge long pointed to the Necessary and Proper Clause as an example. Confused law professors and students scratched their heads over the clause and the most important Supreme Court case on the subject: Chief Justice John Marshall’s famous opinion in McCulloch v. Maryland (1819). Some tagged it “the elastic clause” and claimed it could justify almost anything.

The Necessary and Proper Clause (Article I, Section 8, Clause 18) ends a long list of powers the Constitution grants to Congress. It reads as follows:

“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Critics asked, “What makes a law ‘necessary’ to carry out another power? What does ‘proper’ mean? Moreover, the Constitution grants authority only to agencies and officials; ‘Powers vested … in the Government of the United States’ must be a typo!”

No one seems to have consulted 18th century legal materials about these questions – until I did so, beginning in 2003.

I labored under some disadvantages. I had no internet access to materials I needed. The law school where I was a faculty member had only a small library and was 200 miles from any other law school. The administration was uninterested in my research, even hostile.

But I had one huge advantage that the overwhelming majority of other constitutional scholars did not have: I had practiced law for many years. And although my law practice was in the 20th century rather than in the 18th, I had worked with many of the same kinds of legal documents the Founders employed.

As I examined the Necessary and Proper Clause, a little voice told me, “You’ve seen this kind of wording before! It looks like a phrase in a trust instrument or an agency agreement.”

During my law practice I’d frequently consulted form books. These are huge collections of sample documents lawyers traditionally used to draft legal instruments. “I bet,” I thought, “there were form books in the 18th century. And if there were, I probably can find language in them that looks a lot like ‘necessary and proper.’”

Shortly thereafter I visited Philadelphia. The law librarian at the University of Pennsylvania (Ben Franklin’s favorite school) gave me access to their rare book collection. It turned out that there were plenty of 18th century form books. While thumbing through one of them, I found a form for a “letter of attorney”—a kind of agency agreement we now call a “power of attorney.”

This is what I saw:

Epoch Times Photo
Extract from an 18th century form book. (Rob Natelson)

Further checking confirmed that letters of attorney and other documents listing powers often finished up the list with an additional grant of “necessary and proper” powers.

I soon found that phrases like “necessary and proper” also were exceptionally common in English and American statutes, trusts, leases, commissions, and charters. Study of 18th century English court cases taught me that in this context the word “necessary” meant “incidental.” I also learned that “necessary and proper” was a translation of an earlier Latin phrase, necessaria et opportuna. My knowledge of Latin (another skill rare among modern academics) confirmed that “necessary” meant “incidental.”

Still more investigation showed that “proper” meant that the person exercising authority was governed by legal duties of trust. Investigation also demonstrated that the Constitution really did grant powers to “the Government of the United States.” Those powers were implicit in clauses imposing obligations on the government, such as the Constitution’s mandate that the federal government protect the states from invasion.

The most significant finding was that “necessary” meant “incidental.” Here’s why:

When a document grants a list of explicit powers, it quietly grants unmentioned powers as well. The unmentioned powers permit the agent to carry out his duties by some methods not listed explicitly in the document. For example, depending on local custom, a document authorizing a person to manage a store might include an unmentioned power to advertise. Unmentioned powers are called “incidental.”

Eighteenth-century law imposed tight constraints on incidental powers. They could be exercised only to carry out listed powers. They had to be of lesser importance (“less worthy”) than listed powers. They had to be methods customary or reasonably required in the circumstances. Someone given authority to manage a business couldn’t claim that he had “incidental power” to use his boss’s money to take over an entirely unrelated business.

Let’s consider a related example from the Constitution. It grants Congress explicit power to “regulate Commerce … among the several States.” Those adopting the Constitution understood “commerce” to be mercantile trade and some associated activities, such as navigation and marine insurance. A federal law requiring standardized labels on goods shipped across state lines would be incidental to the commerce power and therefore authorized by the Necessary and Proper Clause.

By contrast, manufacturing and agriculture are major economic categories distinct from commerce —even though (as the Founders knew) these categories impact each other greatly. Manufacturing and agriculture are not mere incidents of commerce, and a law governing them is not incidental to “regulat[ing] … Commerce.”

Thus, my research taught me that 20th century Supreme Court decisions were wrong when they ruled that the Necessary and Proper Clause gave Congress sweeping power over manufacturing and agriculture.

Once you know the background of the Necessary and Proper Clause, you see that it helps make the Constitution flexible—but as not as flaccid as advocates of unlimited federal control would like it to be. The background also helps you grasp the true meaning of Justice Marshall’s opinion in McCulloch v. Maryland. I’m happy to report that, possibly based in part on my research, Chief Justice Roberts recaptured some of this meaning in a case decided in 2012.

It’s not the Constitution that’s vague or meaningless. On this subject, vagaries exist principally in the minds of the critics.

EDITOR’S NOTE: This essay first appeared in the May 27, 2021 Epoch Times. This is the ninth in a series of articles defending the U.S. Constitution against accusations from political “progressives.”

The post The Founders’ words were not “meaningless” or “vague” first appeared on Tenth Amendment Center.

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Is Court Packing Constitutional?

One of the major issues in the run-up to the election was whether Democrats planned to follow-through on threats to pack the Supreme Court in response to President Trump’s appointment of three justices. As Republican control of the Senate appears more and more likely, this issue may become moot for now. But there is certainly no guarantee that it will disappear from the Democrats’ rhetorical playbook. One question about the prospect has not received the attention it deserves: Is court packing even constitutional?

My views on the constitutionality of court packing have evolved. I used to believe that court packing was clearly constitutional under the Constitution’s original meaning, even though it was a pernicious practice that should strongly be resisted. But I have changed my mind. I now believe that it is unclear whether court packing is constitutional under the original meaning. Although my argument does not have a clear conclusion, the possibility that court packing might be unconstitutional is significant because virtually everyone else seems to think it is constitutional.

When I first planned to write on this subject, my position was going to be that originalism allowed court packing, but that it was not clear why nonoriginalists thought it was constitutional. Will Baude, however, beat me to the punch on this one (and I strongly recommend his post). The originalist argument for court packing is pretty straightforward: The Constitution gives Congress the power to increase the number of Supreme Court justices, and it does not appear to restrict the reasons why Congress may increase that number. Thus, Congress may increase the number of Supreme Court justices, even if its purpose is to change how the Supreme Court resolves cases.

While this argument suggests that originalism allows court packing, it is not clear why nonoriginalists also generally seem to accept the constitutionality of court packing. Nonoriginalists often do not feel limited by the text and frequently rely on modern political principles. Until the recent surge in Democratic support for court packing, most constitutional lawyers believed that court packing involved an illegitimate attack on the independence of the Supreme Court. It is not clear why this apparently nontextual political principle is entitled to any less respect from nonoriginalists than many other principles that they do accept, such as “one person, one vote.” As Baude says, it would be good to know what the specific nonoriginalist argument is.  (For some thoughts on this by a nonoriginalist, see here.)

But I have now changed my mind on the originalist analysis of court packing. The Constitution does not simply say that Congress can add additional justices to the Supreme Court. Instead, it gives Congress this power through the Necessary and Proper Clause. Congress has the power to “make all laws which shall be necessary and proper for carrying into Execution . . . all other Powers vested by this Constitution . . . in the Government of the United States, or in any Department or Officer thereof.” Since the Constitution establishes a Supreme Court, Congress can help to carry into execution the Supreme Court’s authority by adding positions to the Court.

While Congress can add positions, it can only do so if its law is “necessary and proper.” And here is where the issue becomes interesting. It is not clear what the original meaning of the necessary and proper authority of Congress is. While Congress would have the authority to court pack under some reasonable interpretations, it would not have that authority under other reasonable interpretations.

In particular, the question is what constraints “necessary and proper” imposes. The “necessary” component is often thought of as involving the means-end connection that Chief Justice Marshall discussed in McCulloch v. Maryland. How strict the means-end connection must be is an important and difficult question, but that is not the key issue here, since it seems obvious that establishing additional offices can help to carry into execution the authority of the Supreme Court.

Rather, it is the meaning of “proper” that is central here. One possibility is that proper does not add anything to necessary. Rather, the two terms should be read together as requiring the means-end scrutiny discussed in McCulloch. That has been the main (but not the only) way the Supreme Court has interpreted the clause in modern times.

But there are other possible interpretations of proper. An important understanding of proper is that it requires that the law Congress is passing not violate the spirit of the Constitution. The idea here is that the “necessary” means-end power can be extremely broad, which would allow the Congress to undermine important constitutional principles, such as federalism and separation of powers. Therefore, the word “proper” was added to require that this “necessary” authority not violate the spirit of the Constitution. In that way, Congress could not use its necessary authority to undermine the Constitution.

Significantly, support for this interpretation comes again from McCulloch, where Chief Justice Marshall summed up the meaning of the necessary and proper authority as follows: “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 with the letter and spirit of the Constitution, are Constitutional” (emphasis added). So Marshall himself seemed to recognize that laws inconsistent with the spirit of the Constitution violate the Necessary and Proper Clause.

What, then, is the spirit of the Constitution, and how does it differ from the letter of the Constitution? The letter of the Constitution refers to the constitutional text. The spirit, in contrast, refers to the values underlying the text, as reflected in intent, purpose, or structure. Thus, something violates the spirit, but not the text of the Constitution, when it conflicts with the intent, purpose, or structure of the Constitution.

Court packing—understood as a law expanding the number of justices in order to change how the Court resolves cases—may violate the spirit of the Constitution. Such a law would not exercise the judicial power (and therefore would not violate the letter of the Constitution) because it would merely be adding seats and then allowing appointments to be made to those seats.

But it might violate the spirit of the Constitution. Congress would be exercising its broad authority over the number of seats to control the decisions of the Supreme Court. This would undermine the purpose and structure of the Constitution’s establishment of an independent Supreme Court. If Congress could simply expand the number of seats on the Supreme Court, the Court would not be independent.

By contrast, Congress could expand the number of seats on the Supreme Court in ways that would not violate the spirit of the Constitution. For example, if Congress believed that the existing number of justices could not keep up with the workload or that a larger number would lead to more accurate decisions, expanding the Supreme Court would be entirely constitutional.

This distinction between laws intended to pack the Court and laws intended to regulate its operation was implicitly recognized by the infamous court packing scheme proposed by the Roosevelt administration during the New Deal. The Roosevelt Administration claimed it was expanding the size of the Supreme Court for legitimate reasons—because the older justices could not keep up with the workload—but this justification fooled no one. Everyone understood the real reason was to control the decisions of the Supreme Court.

If these interpretations of the Necessary and Proper Clause and the constitutional spirit are correct, then court packing that is done to control the decisions of the Court violates the Necessary and Proper Clause.

I am not sure that this interpretation of the Necessary and Proper Clause is correct. Nor am I sure it is wrong. I believe it is a quite plausible interpretation. And therefore it is plausible that court packing unconstitutionally violates the Necessary and Proper Clause.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

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Three Supreme Court Cases that Twisted the Commerce Clause

Despite the words that make up the commerce clause and necessary and proper clause remaining constant over the past two centuries, the Supreme Court’s interpretation of their meaning and reach has not. Over the years, the SCOTUS has used the clause to vastly expand federal power.

The commerce clause delegates to Congress the power to regulate interstate commerce. As originally understood, the power was rather limited. At the time of the drafting of the Constitution, commerce was understood top pertain to trade, or the act of exchanging goods. Commerce power also extended to regulation of the transportation system, shipping, and interstate and international waterways. But the Commerce Clause was never intended to give the federal government the power to regulate manufacturing, agriculture, labor laws, health care, or a host of other activities claimed by progressives.

However, the Supreme Court has erroneously found that the commerce clause, working in conjunction with the necessary and proper clause, allows Congress to regulate certain types of intrastate activity. For example, Congress cannot regulate activity that is not “among” one state and another.

Throughout the twentieth century, the Supreme Court adopted different tests to determine what kinds of intrastate commerce Congress can regulate. During the progressive era, the court used to so-called direct-effects test. In E.C. Knight (1895) Hammer v. Dagenhart (1918) and Schecter Poultry (1935), the court held that Congress could only regulate commerce that had a direct effect on interstate commerce.

However, in 1937, the new deal Court replaced the direct-effect test with the new substantial-effects test. In three cases the Court held that Congress could regulate activity that had a substantial effect on interstate commerce — NLRB v Jones & Laughlin Steel Corp. (1937), United States v Darby (1941) and Wickard v Filburn (1942). These cases are still considered “good law.”

NLRB v Jones and Laughlin Steel Corp (1937)

In 1935, FDR signed into law the National Labor Relations Act (NLRA). This statute gave the National Labor Relations Board (NLRB) the power to punish “unfair labor practices affecting commerce.”

The Jones and Laughlin Steel Corporation argued that the NLRA was “an attempt to regulate all industry, thus invading the reserved powers of the States over their local concerns.” On this question the court split 5-4. Chief Justice Hughes wrote the majority opinion. He acknowledged that the federal government could not regulate “all labor relations,” but only what may be deemed to burden or obstruct commerce.” This test allowed Congress to protect interstate commerce from burdens and obstructions. Hughes held that Congress may “Regulate all local activity that has such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions.”

However, he qualified this holding with a limiting principle.

“The scope of the power to regulate intrastate activity must be considered in the light of our dual system of government, and may not be extended so as to embrace effects upon interstate commerce so direct and remote that to embrace them in view of our complex society would essentially obliterate the distinction between what is national and what is local and create a completely centralized government.” He added “The question is necessarily one of degree.”

The majority did not reject the distinction between direct and indirect effects. Rather the court found that Congress could prohibit local actives that “burden or obstruct,” that is, have a direct effect, on interstate commerce.

United States v Darby (1941)

In this case, the SCOTUS unanimously held that Congress is allowed to regulate the wages of local lumber workers. Darby rejected the direct effects test and introduced the substantial effects test. This framework recognized that Congress can do more than simply protect interstate commerce from being burdened or obstructed. It could also regulate intrastate activities that’ merely had a substantial effect on interstate commerce. The Court’s analysis, written by Justice Stone relied on the ruling in McCulloch v Maryland (1819)

By citing McCulloch the court indicated the substantial effects test was based on the Necessary and Proper Clause. Darby did not expand the meaning of the word “commerce” in the commerce clause. Rather, under the substantial-effects test, Congress could now regulate local activities – even if those were not commerce- if the law was a “necessary and proper” means to regulate interstate commerce.

Though Darby cited McCulloch, the New Deal Court did not follow Chief Justice Marshall’s reasoning. Justice Stone stated that it did not matter whether Congress was in fact motivated by a desire to regulate local activities.

“Whatever the motive and purpose,” he wrote “regulations on commerce which do not infringe on some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.” Compare that with the limiting principle in McCulloch v Maryland (1819) Where Chief Justice Marshall maintained that the court had a duty to declare unconstitutional a law “under the pretext of executing its powers, to pass laws for the accomplishments of objects not entrusted to the government.”

Finally, the Court held that the Tenth Amendment “states but a truism that all is retained which has not been surrendered.” As a result, the court would no longer consider whether Congress’ implied powers under the necessary and proper clause would intrude on a State’s police power. Darby, accordingly, overruled Hammer v Dagenhart (1918)

Wickard v Filburn (1942)

The third case was Wickard v Filburn. The Agricultural Adjustment Act restricted the amount of wheat that farmer Roscoe Filburn could grow to a specified quota. Secretary of Agriculture, Claude Wickard administered this regulatory scheme. The law restricted the supply of wheat as a means to increase prices, thereby benefiting farmers. According to the record, Filburn used the bulk of the wheat he grew in excess of this quota on his farm to feed his livestock. This way, Filburn could use his own home-grown wheat to feed his livestock at a lower cost, and still benefit by selling his “quota” on the market for the higher price.

The justices considered this case so controversial they asked the parties to re-argue it. While deliberating over the decision, Justice Jackson initially favored an opinion that would have abandoned all scrutiny concerning the scope of Congress’ commerce power. In other words, the court would uphold any economic regulation that Congress deemed reasonable. But even the New Deal Court was not willing to take such a momentous step. Instead, Jackson’s majority opinion expanded the substantial-effects test. The court acknowledged that Filburn’s small amount of locally consumed wheat did not have a substantial effect on interstate commerce. Yet, when all the locally grown wheat nationwide is considered all-together, in the aggregate, those intrastate activities have a substantial effect on interstate commerce. Thus Congress can regulate the locally consumed wheat. This doctrine became known as the aggregation principle.

The court considered evidence that home-grown wheat used to feed livestock affected national wheat prices even though Filburn’s “Own contribution to the supply of wheat may be trivial by itself.” The Court found this fact was not enough to remove him from the scope of federal regulation where, as here, his contribution taken together with that of many other similarly situated “is far from trivial.”

Darby introduced the substantial-effects test, Wickard added the aggregation principle.

It is a myth that the Court in Wickard was concerned with the home-grown wheat that Filburn and his family consumed at the dinner table. “The total amount of wheat, consumed as food varies but relatively little,” the Court said. In contrast, the wheat that farmers like Filburn grew to feed their livestock, which they would then send to the market “constitutes the most variable factor in the disappearance of the wheat crop.” The Court found that this latter activity -in the aggregate- had a substantial effect on the interstate price of wheat. The locally consumed wheat, therefore, had a substantial effect on the interstate price of wheat. The locally consumed wheat thereby undercut the Agricultural Adjustments Act’s plan to maintain higher interstate wheat prices.

This final distinction between family consumed and livestock consumed wheat may seem trivial in its foolishness. But in the aggregate, make Wickard one of the most substantially foolish opinions in the history of the judicial branch.

Nearly six decades would pass before the Rehnquist Court provided a limiting principle for the substantial effects test doctrine that expanded Congress’ power under the substantial-effects test. This came in US v Lopez (1995) with an outer limit that the substantial-effect being regulated is fundamentally economic in nature. As well as adding the so-called “Jurisdictional hook” that had to demonstrate intrastate regulations on commerce regulated items that had traveled in interstate commerce at some point.

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Why McCulloch v. Maryland – now 200 years old – is not a “big government” manifesto

This year marks the 200th anniversary of the Supreme Court’s ruling in McCulloch v. Maryland. In that case, Chief Justice John Marshall upheld Congress’s power to charter a national bank—a distant forerunner of the modern Federal Reserve System.

Nearly all constitutional writers consider McCulloch one of the Supreme Court’s most important cases. They are correct to do so.

But many also depict McCulloch as justifying vast federal powers under a broad interpretation of the Constitution. They portray Marshall as a “big government” judge. That portrayal is wrong.

There are at least two well-grounded reasons Marshall’s opinion in McCulloch is important. The first is that it clarified some basic facts about the constitutional system.

McCulloch explained that the people, not the states, created the federal government and granted its powers. As a young lawyer, Marshall had been a leading spokesman for the Constitution, particularly in Virginia. In McCulloch, Marshall explained—as James Madison had before him—that the Constitution’s legal force comes from approval by popularly-elected state ratifying conventions meeting from 1787 through 1790.

It follows that the first rule of constitutional interpretation is the understanding of the ratifiers. It is not, as some conservatives say, the “intent of the framers” or “the original public meaning.” Nor should we, some liberals contend, construe the Constitution through “evolving social standards” or novel interpretive theories.

Moreover, McCulloch clarified that under the Constitution state and federal governments operate fairly independently of each other. Neither level of government should try to dictate to the other nor obstruct the other’s core functions. Because Congress designed the national bank to assist Congress in carrying out its core functions, McCulloch voided a state attempt to tax the bank.

The second reason McCulloch is so important is Marshall’s use of established law and legal methods—rather than tailor-made theories—for interpreting the Constitution. This is noteworthy in his discussion of whether the national bank was valid under the Constitution’s Necessary and Proper Clause.

The Constitution lists the powers of Congress. These include such functions as national defense, borrowing money, taxing, postal system, the monetary system, and regulating foreign and interstate commerce. In addition to these explicit items, the Constitution adds that “The Congress shall have Power . . . To make all Laws, which shall be necessary and proper for carrying into Execution” its listed powers.

The Constitution list of explicit powers does not include chartering a national bank. In McCulloch, the court had to determine whether chartering the bank was “necessary and proper” to carrying out Congress’s explicit powers.

Marshall, like other lawyers of his time, was familiar with documents by which one person or group granted authority to another—documents such as powers of attorney, wills, trust instruments, and statutes. The phrase “necessary and proper” was common in such documents.

As used in the Constitution, the “necessary and proper” phrase meant that in addition to the functions explicitly listed, the person or group receiving authority could exercise incidental powers. These were lesser powers intended to accompany the listed ones. Lesser powers usually were incidental if they were customary or necessary to carrying out the listed functions.

For example, it is customary for a manager hiring employees to investigate candidates before hiring them. So a manager with power to hire employees usually has incidental authority to investigate candidates. Similarly, a real estate broker with authority to sell a vacant building usually has incidental authority to clean it for showing.

In like manner, the Constitution’s grant of power to Congress to impose taxes carries with it incidental authority to obtain office space for revenue officers.

Marshall’s McCulloch opinion shows that he understood the Necessary and Proper Clause as embodying the law of incidental powers. He explained that the Constitution didn’t mention incorporation because incorporation was merely a subsidiary power rather than a “great power” like national defense and finance. Constitutions, unlike ordinary laws, generally left subsidiary powers to implication. This was the context for Marshall’s famous phrase, “we must never forget that it is a constitution we are expounding.”

Marshall further explained that national banks were customary and necessary for government financial and defense functions.

Marshall used other ordinary legal methods to support his conclusion. For example, he emphasized that in 1791 leading Founders had debated the constitutionality of a national bank both in and out of Congress—and most of them concluded the bank was constitutional. This process of consulting “contemporaneous exposition” was (and is) a traditional way of interpreting statutes and documents. Marshall didn’t resort to novel interpretive theories or evolving social standards.

In the 20th century, the Supreme Court cited McCulloch to uphold unprecedented federal spending and regulatory programs. Law school constitutional law courses sometimes treat McCulloch the same way.

But with all respect, this approach is the product of historical ignorance. Those who depict McCulloch as a “big government” decision generally are unaware of how the Founders understood the Necessary and Proper Clause and how the bank debates of 1791 focused on the details of incidental powers law. They usually are unaware of critical changes in the English language—such as the fact that when Marshall’s used the words “convenient”and “appropriate” they embodied narrower and tougher standards than they do today. Without that kind of historical perspective, McCulloch is a difficult case to understand.

And if you read McCulloch in isolation, you might think Marshall’s rejection of narrow interpretation meant he favored broad interpretation. But as Marshall’s other writings make clear, his standard was fair construction: He believed we should interpret the Constitution as its ratifiers understood it—neither more narrowly nor more broadly.

A version of this essay was first published in the Nov. 13, 2019 Epoch Times

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