McCulloch and the Scope of National Power (CB9) 2008 Supreme Court Case

1.Text and Original Meaning For purposes of exposition, we are putting text and original meaning in the same section, but as we shall emphasize, the two can be, and often are, separated. Almost everyone agrees that the text of the Constitution is binding. (We will raise some questions about this view, but in general, it is true.) It is more controversial to say that the original meaning of the text is binding. In the following opinion, the text is understood to mean what (in the Court’s view) it originally meant: DISTRICT OF COLUMBIA v. HELLER, 554 U.S. 570 (2008). The second amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The issue in this case was whether a District of Columbia statute, which prohibited possession of usable handguns in a home, violated the amendment. In a five-to-four decision, the Court, per Justice Scalia, held that the statute was unconstitutional. The Court’s opinion begins by distinguishing between an “individual right” view of the amendment, which protects the right of individuals to bear arms, especially for self-defense, and a “collective right” view, which protects the right only in connection with militia service. The Court endorses the first view. The Court’s argument for this position begins by carefully focusing on the language of the second clause of the amendment, which it refers to as the “operative clause.” p. 44 Justice Scalia points out that the phrase “right of the people” or a very similar phrase is used three other times in the Constitution (in the first, fourth, and ninth amendments) and that on each occasion it refers to an individual right and to all members of the political community, not just to a subset like members of a militia. Turning to the phrase “keep and bear arms,” Justice Scalia consults eighteenth-century dictionaries to determine that “arms” referred to all weapons, not just those specifically designed for military use or employed in a military capacity. On the other hand, “arms” was not limited to weapons in existence at the time the second amendment was adopted. “We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Examination of eighteenth-century sources also established that the words “keep” and “bear” were unconnected to the possession of arms for military purposes. According to the Court, [the] phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. The Court’s conclusion was reinforced by English legal history, which the Court found relevant because the second amendment codified a preexisting right. The right guaranteed by William and Mary in the Declaration of Right was an individual right not related to militias; Blackstone had understood the right as “having the use of arms for self-preservation and defence.” Having established the meaning of the “operative clause,” the Court turned its attention to the “prefatory clause” (“A well regulated Militia, being necessary to the security of a free State”). The Court interpreted the word “Militia” to mean “all males physically capable of acting in concert for the common defense.” It found that “‘Well-regulated’ implies nothing more than the imposition of proper discipline and training.” Such a militia might be “necessary to the security of a free State” because it could counter invasion or insurrection and render large standing armies unnecessary and because “able-bodied men of a nation [trained] in arms and organized [are] better able to resist tyranny.” The Court then turned to the relationship between the prefatory and operative clauses. The Court concluded that [history] showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms and enabling a select militia or standing army to suppress political opponents.... It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; they most undoubtedly thought it was even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right — unlike some other English rights — was codified in a written Constitution. Finally, the Court examined postratification commentary and case law. In the Court’s view this material was relevant because it helped “to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation.” The Court concluded that “virtually all interpreters of the Second Amendment in the century after its enactment interpreted the amendment as we do.” p. 45 It did not follow that the right to bear arms was unlimited, however. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that the prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or laws imposing conditions and qualifications on the commercial sale of arms. The Court added that “another important limitation on the right” was that it was limited to those weapons “in common use at the time.” And in a footnote, the Court noted that “[we] identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” Turning to the constitutionality of the particular District of Columbia statute at issue, the Court rejected what it characterized as an “interest balancing” approach advocated by Justice Breyer in his dissenting opinion. We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.... We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. In a dissenting opinion joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens characterized the question presented as whether the second amendment protects the right to possess and use guns for nonmilitary purposes such as hunting and self-defense. Examining the same language that the Court parsed, he concluded that it did not protect these uses. In his view, the prefatory clause’s omission of any statement of purpose related to hunting or personal self-defense was especially striking in light of the fact that other contemporary statements of similar rights mentioned this purpose. Justice Stevens argued that other portions of the Constitution referred to “the people” in their collective capacity, and that the Court, itself, did not hold that all individual people (for example, convicted felons or the mentally ill) had the right to bear arms. In contemporary discourse, the words “bear arms” meant “to serve as a soldier, do military service, fight.” The word “keep” referred to “the requirement that militia members store their arms at their homes, ready to be used for service when necessary.” Justice Stevens concluded by arguing that [today’s decision] will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries. The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice — the choice made by the Framers themselves. p. 46 The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law processes of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice. In a separate dissenting opinion, joined by Justices Stevens, Souter, and Ginsburg, Justice Breyer argued that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are — whether they do or do not include an independent interest in self-defense — the majority view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.... [Any] self-defense interest at the time of the Framing could not have focused exclusively upon urban-crime related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers on the roads, on footbaths, or along waterways.... The majority derides my approach as “judge empowering.” I take this criticism seriously, but I do not think it accurate.... The majority’s methodology is, in my view, substantially less transparent than mine.... Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated? Assume for argument’s sake that the Framers did intend the Amendment to offer a degree of self-defense protection. Does that mean that the Framers also intended to guarantee the right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table? That they (who certainly showed concern for the risk of fire) would have lacked concern for the risk of accidental deaths or suicides that readily accessible loaded handguns in urban areas might bring? Unless we believe that they intended future generations to ignore such matters, answering questions such as the questions in this case requires judgment — judicial judgment exercised within a framework for constitutional analysis that guides that judgment and which makes its exercise transparent. One cannot answer those questions by combining inclusive historical research with judicial ipse dixit. NOTE: TEXT AND “ORIGINAL PUBLIC MEANING” 1.The role of text. Consider the following view: “Whatever else you might think, you should agree with one proposition: The text of the Constitution is binding.” On this view, judges have a duty of fidelity above all to the Constitution’s words. If the Second Amendment question is difficult, it is because judges cannot be sure what the words mean, just by reading them. Actually that happens a lot. The First Amendment protects “the freedom of speech,” but it is not clear, in the abstract, whether it forbids restrictions on commercial advertising, on libel, on hate speech, and on campaign finance regulation. Consider, then, the following view: “Of course the text is binding, but it leaves so many hard questions unresolved!” 2.The original meaning. Contemporary “originalists” usually argue that the Constitution’s meaning is settled by asking about its “original public meaning.” See A. Scalia, A Matter of Interpretation (1998); Solum, Originalist Methodology, 84 U. Chi. L. Rev. 269 (2017). If we are speaking about a provision ratified in 1787, the question is: What was the public meaning of that provision, at the time that it was ratified? p. 47 While that is the dominant view, some people think that we should investigate not the original public meaning, but the intentions of those who wrote and/or ratified constitutional provisions. The two views about originalism will often lead in the same direction, but they are importantly different. If you ask about original public meaning, you are asking about something that seems objective, whereas if you ask about original intentions, you are asking about what is inside people’s minds. And if you ask about original meaning, you will focus on what We the People, the Constitution’s ratifiers, thought — not on what the Constitution’s drafters thought. Note that if you investigate the original meaning, you might find concrete answers to concrete questions. Perhaps the original meaning of the Second Amendment was that individuals have a right to possess firearms. Perhaps the original meaning of the First Amendment was that commercial advertising can be regulated. But if you investigate the original meaning, you might find instead that some provisions were originally meant to be broad concepts whose specific meaning is not meant to be frozen in time. In that case, judges might be licensed to decide on specific meanings. If so, originalism would leave important gaps. The central point is that for originalists, the initial question is always historical. 3.The authority of the original meaning. You might ask why, exactly, the original meaning is binding. Here are three kinds of answers: (1) If the Constitution is law, it just follows that the text, as originally understood, is binding. That’s what it means for something to be law. (2) If judges are interpreting the Constitution, they must ask about the original meaning. That’s what it means to interpret a text. If the judges do not focus on the original meaning, they are not engaged in interpretation at all. (3) Originalism is justified on pragmatic grounds. It promotes stability; it ensures that the meaning of the Constitution does not change over time. It reduces the discretion of judges, which can be a real threat to self-rule. It ensures that We the People are ultimately in charge. As Justice Antonin Scalia put it, “If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you’ve eliminated the whole purpose of a constitution. And that’s essentially what the ‘living constitution’ leaves you with.” All Things Considered, “Scalia Vigorously Defends a ‘Dead’ Constitution,” NPR, April 28, 2008. 4.The Second Amendment.Both the majority and Justice Stevens’s dissent are preoccupied with the task of determining how the language of the second amendment would have been understood in the late eighteenth century. What are we to make of the fact that the justices, all presumably acting in good faith and working with the same historical materials, read the text differently? That the different readings correlate with the widely perceived split between the “conservative” and “liberal” justices? It might, be a problem, for originalism, that when originalist judges seem to be affected by their political predilections. See F. Cross, The Failed Promise of Originalism (2013). How much of a problem is that? 5.Original meaning and historical change. If constitutional interpretation consists of uncovering the meaning that people would have attached to words at the time the words were written, how are we to make sense of changed circumstances? Consider, in this regard, the Court’s assertion that second amendment protection is not limited to weapons that the framers knew about. Did the “original public meaning” of “arms” as used in the second amendment include rifles, machine guns, and automatic pistols, none of which had been invented in the eighteenth century? If not, are these weapons nonetheless covered because the framers, if they had thought about the matter, would have included these weapons in their definition of arms? How do we know that? If the text allows us to take account of weapons that did not exist at the time of framing, then what about other circumstances that did not exist, like widespread urbanization or increases in gun violence? p. 48 6.Original public meaning and discretion. The Court insists that its approach precludes considerations of policy and that “[a] constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Yet the Court strongly implies that the second amendment right does not extend to the carrying of concealed weapons, the possession of weapons by felons or the mentally ill, or the possession of weapons in “sensitive places.” Does the original public meaning of the text support these limitations? If not, and if the Court’s assessment of the “usefulness” of a constitutional guarantee has no role in constitutional interpretation, where do the limitations come from? 7.Justice Breyer’s approach. According to Justice Breyer, interpreting the second amendment requires the exercise of “judicial judgment [within] a framework of constitutional analysis that guides that judgment and which makes its exercise transparent.” Is “judicial judgment” different from the sort of public policy judgments that a legislator would make? How, precisely, are these judgments constrained by “a framework of constitutional analysis”? If the justices are in fact deciding cases by reference to their personal value preferences, are these decisions made legitimate by the fact that justices are doing so transparently? 8.Stun guns. In Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), the Court disapproved of three reasons given by a lower court to justify the state’s categorical ban on stun guns. The [Massachusetts] court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with Heller’s clear statement that the Second Amendment “extends... to... arms... that were not in existence at the time of the founding.” District of Columbia v. Heller, 554 U.S. 570, 582 (2008). The court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U.S. at 627; see id. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.”... By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.”... But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U.S. at 624-25. For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent.... With a more elaborate opinion, Justice Alito (joined by Justice Thomas) concurred in the judgment. The reasoning of the Massachusetts Supreme Judicial Court, he wrote, “defies our decision in Heller, which rejected as ‘bordering on the frivolous’ the argument ‘that only those arms in existence in the 18th century are protected by the Second Amendment.’ 554 U.S. at 582.... [T]he pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today.... While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.” Justice Alito further emphasized that the Second Amendment “vindicates the ‘basic right’ of ‘individual self-defense,’” and noted that the defendant had acquired the stun gun in order to defend herself against a violent ex-boyfriend. He concluded that “[t]he decision below [does] a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not.... p. 49 The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself.... But the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms. Heller, 554 U.S. at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.” 2.Structure McCulloch v. Maryland 17 U.S. (4 Wheat.) 316 (1819) [This was an action brought by John James, for himself and the state of Maryland, against James McCulloch, cashier of a branch of the Bank of the United States. James alleged that McCulloch had failed to pay a state tax assessed against the bank. The court below held for the plaintiff. For background, see the Note following the opinion.] Mr. Chief Justice Marshall delivered the opinion of the Court. In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty. The first question made in the cause is, has Congress power to incorporate a bank? It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question [ought] to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. The power now contested was exercised by the first Congress elected under the present constitution. The bill for incorporating the bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. p. 50 The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gave no countenance. These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the constitution. In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion. It would be difficult to sustain this proposition. The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might “be submitted to a Convention of Delegates, chosen in each State by the people thereof, under the recommendation of its Legislature, for their assent and ratification.” This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States — and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these Conventions the constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people; and is declared to be ordained, “in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.” The assent of the States, in their sovereign capacity, is implied in calling a Convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.... The government of the Union, then, (whatever may be the influence of this fact on the case), is emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it [is] now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist. In discussing these questions, the conflicting powers of the general and State governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled. If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. p. 51 It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, “this constitution, and the laws of the United States, which shall be made in pursuance thereof,” “shall be the supreme law of the land,” and by requiring that the members of the State legislatures, and the officers of the executive and judicial departments of the States, shall take the oath of fidelity to it.... Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that every thing granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word “expressly,” and declares only that the powers “not delegated to the United States, nor prohibited to the States, are reserved to the States or to the people” thus leaving the question, whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget, that it is a constitution we are expounding. 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; and 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. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that 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. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require that the treasure raised in the north should be transported to the south, that raised in the east conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred which would render these operations difficult, hazardous, and expensive? p. 52 Can we adopt that construction, (unless the words imperiously require it,) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means?... It is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance.... But the constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration of powers is added that of making “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 thereof.” The counsel for the State of Maryland have urged various arguments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers.... [The] argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not empowered by it to make all laws, which may have relation to the powers conferred on the government, but such only as may be “necessary and proper” for carrying them into execution. The word “necessary” is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to Congress, in each case, that only which is most direct and simple. Is it true, that this is the sense in which the word “necessary” is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense — in that sense which common usage justifies. The word “necessary” is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases. This comment on the word is well illustrated, by the passage cited at the bar, from the 10th section of the 1st article of the constitution. It is, we think, impossible to compare the sentence which prohibits a State from laying “imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,” with that which authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution” the powers of the general government, without feeling a conviction that the convention understood itself to change materially the meaning of the word “necessary,” by prefixing the word “absolutely.” This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view. p. 53 Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it.... So, with respect to the whole penal code of the United States: whence arises the power to punish in cases not prescribed by the constitution? All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress. The right to enforce the observance of law, by punishing its infraction, might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered “to provide for the punishment of counterfeiting the securities and current coin of the United States,” and “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” The several powers of Congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no punishment should be inflicted in cases where the right to punish is not expressly given. Take, for example, the power “to establish post offices and post roads.” This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post road, from one post office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and post road. This right is indeed essential to the beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in such Court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction in all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws.... In ascertaining the sense in which the word “necessary” is used in this clause of the constitution, we may derive some aid from that with which it is associated. Congress shall have power “to make all laws which shall be necessary and proper to carry into execution” the powers of the government. If the word “necessary” was used in that strict and rigorous sense for which the counsel for the State of Maryland contend, it would be an extraordinary departure from the usual course of the human mind, as exhibited in composition, to add a word, the only possible effect of which is to qualify that strict and rigorous meaning; to present to the mind the idea of some choice of means of legislation not straitened and compressed within the narrow limits for which gentlemen contend. p. 54 But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the Convention, as manifested in the whole clause. To waste time and argument in proving that, without it, Congress might carry its powers into execution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that in the absence of this clause, Congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional. This clause, as construed by the State of Maryland, would abridge, and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended, is, we should think, had it not been already controverted, too apparent for controversy. We think so for the following reasons: 1st. The clause is placed among the powers of Congress, not among the limitations on those powers. 2nd. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been, or can be assigned for thus concealing an intention to narrow the discretion of the national legislature under words which purport to enlarge it.... The result of the most careful and attentive consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution, if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. 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.... If a corporation may be employed indiscriminately with other means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of Congress, if it be an appropriate mode of executing the powers of government. That it is a convenient, a useful, and essential instrument in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose previous opinions against it had been confirmed by every circumstance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, Congress, justifying the measure by its necessity, transcended perhaps its powers to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of this measure. The time has passed away when it can be necessary to enter into any discussion in order to prove the importance of this instrument, as a means to effect the legitimate objects of the government. But, were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or 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, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.... It being the opinion of the Court, that the act incorporating the bank is constitutional; and that the power of establishing a branch in the State of Maryland might be properly exercised by the bank itself, we proceed to inquire — 2. Whether the State of Maryland may, without violating the constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied. But, such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of even this power, is admitted. The States are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded — if it may restrain a State from the exercise of its taxing power on imports and exports; the same paramount character would seem, to restrain, as it certainly may restrain, a State from such other exercise of this power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repugnant to another, as entirely repeals that other as if express terms of repeal were used. On this ground the counsel for the bank place its claim to be exempted from the power of a State to tax its operations. There is no express provision for the case, but the claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rendering it into shreds. This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. that a power to create implies a power to preserve. 2nd. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with these powers to create and to preserve. 3d. That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.... That the power of taxing it by the States may be exercised so as to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than those expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate to, and may be controlled by the constitution of the United States. How far it has been controlled by that instrument must be a question of construction. In making this construction, no principle not declared, can be admissible, which would defeat the legitimate operations of a supreme government. p. 56 It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the constitution. The argument on the part of the State of Maryland, is, not that the States may directly resist a law of Congress, but that they may exercise their acknowledged powers upon it, and that the constitution leaves them this right in the confidence that they will not abuse it. Before we proceed to examine this argument, and to subject it to the test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the States. It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse. But the means employed by the government of the Union have no such security, nor is the right of a State to tax them sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the legislature, which claim the right to tax them, but by the people of all the States. They are given by all for the benefit of all — and upon theory, should be subjected to that government only which belongs to all.... We find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise. But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised by the respective States, consistently with a fair construction of the constitution? That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE. Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one State trust those of another with a power to control the most insignificant operations of their State government? We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it as it really is.... p. 57 If we apply the principle for which the State of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. [If] the states may tax one instrument, [they] may tax any and every other instrument. [The] American people [did] not design to make their government dependent on the states.... It has also been insisted, that, as the power of taxation in the general and State governments is acknowledged to be concurrent, every argument which would sustain the right of the general government to tax banks chartered by the States, will equally sustain the right of the States to tax banks chartered by the general government. But the two cases are not on the same reason. The people of all the States have created the general government, and have conferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constituents; and these taxes must be uniform. But, when a State taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole — between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme. But if the full application of this argument could be admitted, it might bring into question the right of Congress to tax the State banks, and could not prove the right of the States to tax the Bank of the United States.... [We] conclude that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress.... This opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. [Reversed.] NOTE: CONSTITUTIONAL METHODOLOGY AND INTERPRETATION IN MCCULLOCH McCulloch resolves several important questions, relating both to the judicial role and to the allocation of powers as between the federal government and the states. 1.Background. The first Bank of the United States was created in 1790, shortly after ratification of the Constitution, to furnish loans to the federal government and to help collect taxes. The constitutional issue was sharply debated. Madison, a member of the House of Representatives, spoke against the bank, claiming that Congress had no constitutional authority to create it. Hamilton, Secretary of the Treasury, was one of its staunchest supporters and indeed drafted the plan for the bank. Jefferson also opposed the first bank on constitutional grounds, invoking the tenth amendment and venturing as well that “the Constitution allows only the means which are necessary, not merely ‘convenient,’ for effecting the enumerated powers. p. 58 If such a latitude of construction be allowed to this phrase as to give any non-enumerated power [to Congress,] it would swallow up all the delegated powers, and reduce the whole to one power.” Opinion on the Constitutionality of the Bill for Establishing a National Bank, in 19 Papers of Thomas Jefferson 275, 279–280 (J. Boyd ed., 1974). In 1811, the bank’s charter lapsed, and Congress did not renew it. The private business and banking communities vigorously opposed renewal. In 1815, however, Congress created a second Bank of the United States, responding to a period of considerable economic turmoil following the War of 1812. At this stage, there was little discussion of the constitutional question. Jefferson himself supported the bank, partly in response to political pressures and perceived practical necessities, and Madison wrote that the issue had been settled in favor of its constitutionality. But many states objected to the creation of a second bank and imposed taxes of the sort at issue in McCulloch. To what extent, if any, do you think the decision in McCulloch was or should have been different in 1819 from what it would have been had the issue arisen in 1791? 2.Methods of constitutional interpretation. Note Chief Justice Marshall’s remarks on the distinctive character of constitutions and of constitutional interpretation. Chief Justice Marshall’s suggestion that “it is a constitution we are expounding” has been called, by no less an authority than Justice Frankfurter, “the single most important utterance in the literature of constitutional law — most important because most comprehensive and most comprehending.” Frankfurter, John Marshall and the Judicial Function, 69 Harv. L. Rev. 217, 219 (1955). But the statement and the interpretive strategies to which it has led are not universally admired. Compare, for example, Justice Frankfurter’s suggestion that “precisely because ‘it is a constitution we are expounding,’ we ought not to take liberties with it.” National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 581, 647 (1949) (Frankfurter, J., dissenting). See also Kurland, Curia Regis: Some Comments on the Divine Right of Kings and Courts to Say What the Law Is, 23 Ariz. L. Rev. 582, 591 (1981), suggesting that, whenever a judge quotes this passage, “you can be sure that the court will be throwing the constitutional text, its history, and its structure to the winds in reaching its conclusion.” Consider the following possible interpretations of Chief Justice Marshall’s position: (a) The power-granting provisions of the Constitution should be broadly construed. Those provisions are meant to endure over time. They should be interpreted flexibly as new and unforeseen problems arise. But to say this is emphatically not to say that courts ought to have a license, often or ever, to expand national authority beyond what the Constitution authorizes — or to strike down legislative action on grounds of changed circumstances. (b) All provisions of the Constitution, including those granting powers and those creating rights, should be broadly construed. Constitutions simply do not contain specific answers to all questions for all times. (c) The meaning of the Constitution changes with changing circumstances, in accordance with changing social norms and needs. Judges need not adhere to the original meaning of the text, but must interpret the document flexibly in light of contemporary necessities. 3.Structural approaches to constitutional interpretation. In the view of some, the approach in McCulloch is distinctive in large part because of Chief Justice Marshall’s willingness to rely on the “structures and relationships” set up by the Constitution, and not only the text, in resolving constitutional questions. I am inclined to think well of the method of reasoning from structure and relation. I think well of it, above all, because to succeed it has to make sense — current, practical sense. The textual-explication method, operating on general language, [contains] within itself no guarantee that it will make sense, for a court may always present itself or even see itself as being bound by the stated intent, however nonsensical, of somebody else. p. 59 [With structural approaches] we can and must begin to argue at once about the practicalities and proprieties of the thing, without getting out dictionaries whose entries will not really respond to the question we are putting. [We] will have to deal with policy and not with grammar. C. Black, Structure and Relationship in Constitutional Law 22–23 (1969). Consider this objection: Black’s position means that the Constitution should be interpreted to mean whatever the judges think it should mean. Once judges are asking about “the practicalities and proprieties,” they can do whatever they want. Does a structural approach leave more or less interpretive freedom than a textual approach? Compare Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999), which argues that textualism can impose more than usual discipline if judges look at how constitutional terms are used in different contexts. In support of that view, a narrow version of structural interpretation might see if we can learn about the meaning of a disputed phrase by inquiring into its meaning in a different part of the Constitution. Most obviously, the word “treason,” in the impeachment clause, might be construed by looking at the specific definition of “treason” that the Constitution elsewhere provides. Perhaps we could make a lot of progress, in hard cases, by an approach of this kind. 4.The necessary and proper clause; implied powers. a. What, if anything, does the necessary and proper clause add, in the Court’s view, to the constitutional powers granted to the Congress? Does the McCulloch decision recognize implied powers at all? Perhaps it merely recognizes that a power naturally includes the appropriate means for achieving the intended end. Would that be a better understanding of the opinion? b. The Court’s construction of the necessary and proper clause resolved an extraordinarily important interpretive question that had divided, among others, Thomas Jefferson and Alexander Hamilton. On what does Chief Justice Marshall base his acceptance of the Hamilton position? Note the pertinence of the suggestion that that “provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” c. Even with the Court’s interpretation of the necessary and proper clause, it remains to explain how the creation of a national bank is “necessary and proper” to the exercise of one of Congress’s enumerated powers. What enumerated powers are helpful here? Consider Currie, The Constitution in the Supreme Court: State and National Powers, 1801–1835, 49 U. Chi. L. Rev. 887, 932–933 (1982), noting that Chief Justice Marshall “mentioned in passing various enumerated powers to which the creation of a bank might be incidental. [What] is striking is that he made no serious effort to demonstrate how the bank was necessary and proper, or even conducive, to any one of them.” But consider the implications of Chief Justice Marshall’s reference to the extended territory of the United States. Is Hamilton’s explanation persuasive in this regard? d. What limitations does Chief Justice Marshall recognize on congressional power? The key sentence here, frequently quoted by the Supreme Court throughout its history, is this: “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.” The Court adds that if Congress enacts a law “for the accomplishment of objects not entrusted to the national government,” and if Congress has acted under the “pretext” of using its enumerated powers, the law will be invalidated. Does this mean that the Court will scrutinize the motivations of legislators? (The benefits and disadvantages of motivation-centered inquiries are explored in Chapters 3 and 5 infra.) What else might it mean? See Barnett, Necessary and Proper, 44 UCLA L. Rev. 745 (1997). 5.The tenth amendment. The second principal provision interpreted in McCulloch is the tenth amendment. How does Chief Justice Marshall construe this provision? p. 60 Does the tenth amendment add anything of substance to the Constitution in Chief Justice Marshall’s view? Perhaps it does not, but the tenth amendment might nonetheless have important civic purposes, by reminding everyone of the limited nature of the federal government. Note that in the Articles of Confederation the word “expressly” preceded the limitation analogous to the tenth amendment. How much support does the deletion of that word add to Chief Justice Marshall’s construction? 6.Representation reinforcement. Chief Justice Marshall finds an implicit prohibition on state taxation of the national bank. What constitutional provision does the tax violate? Chief Justice Marshall’s analysis of the problem is largely an inquiry not into the constitutional text and history but into the operations of representative government. “In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.” And in “the legislature of the Union alone, are all represented.” The claim here is that the power to elect representatives will act as a safeguard against the abuse of political power by elected officials. The judicial role is defined by reference to the understanding that the political process itself will ensure against improper conduct. Does Chief Justice Marshall overlook the possibility that constituents, or subgroups thereof, might not have sufficient political power to prevent oppression? Chief Justice Marshall also indicates that the ordinary presumption — that the processes of representation are an effective safeguard against abuse — disappears when a state imposes taxes on a national instrumentality because in so doing, the state is harming people who are not represented in the state legislature. Judicial intervention is justified in order to make up for the absence of political remedies for those burdened by legislative action. But if citizens generally are oppressed by state taxation of national banks, doesn’t Congress have the power to enact a law to outlaw state taxation? Why is judicial intervention necessary or appropriate? Consider the possibility that the immunity is conferred by the statute creating the bank, interpreted in light of the concerns about representation. Note, by contrast, Chief Justice Marshall’s suggestion that, while the federal government has an (implicit) immunity from state taxation, states may not be immune from federal taxation. How does Chief Justice Marshall’s theory of representation operate differently here? For further discussion of intergovernmental immunity, see Chapter 2 infra. McCulloch might be understood as the foundation for the notion of “representation-reinforcement” as a justification of and guide for judicial action — an occasionally prominent theme in constitutional law. The central idea is that the judicial role is to make up for defects in the ordinary operation of representative government; the source of judicial decision is a breakdown in political processes. See generally J. Ely, Democracy and Distrust (1980). How does this approach differ from that in Marbury? The problem of representation-reinforcement is taken up in Chapters 2, 3, and 5 infra. 3.Natural Law and Natural Rights CALDER v. BULL, 3 U.S. (3 DALL.) 386 (1798). The Connecticut legislature ordered a new trial in a will contest, setting aside a judicial decree. The Court unanimously held that the legislature’s action was not an “ex post facto Law” forbidden the states by article I, section 10. Although Justices Chase and Iredell agreed on the “ex post facto” issue, they disagreed over the appropriate role of “natural law” in constitutional interpretation. Justice Chase wrote: “I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the constitution, or fundamental law of the state. p. 61 The people of the United States erected their constitutions or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it. The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments. [There] are acts which the federal, or state legislature cannot do, without exceeding their authority. There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power. [An] act of the legislature (for I cannot call it a law), contrary to the great first principles in the social compact, cannot be considered a rightful exercise of legislative authority. [A] law that punishes a citizen for an innocent [action;] a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A. and gives it to B.: it is against all reason and justice, for a people to entrust a legislature with such powers; and therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. [To] maintain that our federal, or state legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.” (Chase upheld the legislature’s action, however, on the ground that it impaired no vested right.) Justice Iredell replied: “[Some] speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government any court of justice would possess a power to declare it so. [It] has been the policy of all the American states, [and] of the people of the United States, [to] define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of congress, or of the legislature of a state, violates those constitutional provisions, it is unquestionably void. [If,] on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the court could properly say, in such an event, would be, that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. [If] the legislature pursue the authority delegated to them, their acts are valid. [In such circumstances,] they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust.” NOTE: NATURAL LAW, MORAL ARGUMENT, AND THE SUPREME COURT In one form or another, the dispute between Justice Chase and Justice Iredell has proved fundamental to constitutional law. 1.The original understanding. Marbury v. Madison rested in part on the understanding that a written Constitution necessarily contemplated judicial enforcement of its terms. Otherwise, the restrictions imposed by the Constitution would be meaningless. We have seen that the argument is in some respects vulnerable. But Justice Chase goes further. His position is that there is an “unwritten” Constitution, consisting of principles of natural law, which is enforceable as against the states even though it cannot be found in the Constitution. p. 62 Justice Iredell’s response is that the very fact of a written Constitution is authority against the position that courts may call on principles of natural justice. But does Justice Chase’s position itself show that at least some of the framers and ratifiers believed in the existence of a natural law supplement to the Constitution’s explicit prohibitions? Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987), contains an extended argument for that view, with multiple references. See also Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703 (1975); Grey, Origins of the Unwritten Constitution, 30 Stan. L. Rev. 843 (1978), suggesting that the framers believed that judges would enforce a category of natural law constraints on state and federal legislation. But see J. Ely, Democracy and Distrust (1980), for a skeptical view. For provocative treatments, emphasizing the centrality of liberty, see R. Barnett, Restoring the Lost Constitution (rev. ed. 2013); Barnett, Our Republican Constitution (2016). 2.Judges as political philosophers? What would be the advantages and disadvantages of recognizing judicial authority of the sort claimed by Justice Chase? Think, for example, of the following questions: (1) Are maximum hour laws unconstitutional? (2) Are rent control laws unconstitutional? (3) Must states recognize same-sex marriage? (4) Does the first amendment protect pornography? (5) What are the limits of the federal government’s power to look at people’s email and social media postings? (6) Can the national government ban people from majority-Muslim nations from getting visas? Consider M. Perry, The Courts, the Constitution, and Human Rights 100–101 (1982): In any recent generation, certain political issues have been widely perceived to be fundamental moral issues as well — issues that challenge and unsettle conventional ways of understanding the moral universe and that serve as occasions for forging alternative ways of understanding.... Our electorally accountable policymaking institutions are not well suited to deal with such issues in a way that is faithful to the notion of moral evolution. [Those] institutions, when finally they confront such issues at all, tend simply to rely on established moral conventions and to refuse to see in such issues occasions for moral revaluation and possible moral growth. [Executive] and especially legislative officials tend to deal with fundamental political-moral problems, at least highly controversial ones, by reflexive reference to the established moral conventions of the greater part of their particular constituencies. See also A. Bickel, The Least Dangerous Branch (1962); R. Dworkin, Freedom’s Law (1997); Dworkin, The Forum of Principle, 56 N.Y.U. L. Rev. 469 (1981); Wellington, Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication, 83 Yale L.J. 221 (1973). But don’t executive and legislative officials think about what morality requires? Aren’t they subject to their constituents, who certainly think about that issue? Perry’s view may depend on an unduly skeptical view of the political process. In its most extreme form, this view treats politics as an unprincipled power struggle among self-interested groups, or factions. This view has played a prominent role in modern political and economic theory. See Stigler, The Theory of Economic Regulation, 2 Bell. J.L. & Mgmt. Sci. 3 (1971); R. Dahl, A Preface to Democratic Theory (1956). In this view, Justice Chase’s classic violation of natural law — taking from A to give to B — is a frequent occurrence. If the skeptical view is accepted, an active judicial role in deciding moral issues might seem attractive. At the very least, it might seem to make sense to embrace an active judicial role in preventing any situation in which legislators steal from A to give to B. (But how do we know that A deserved what he had in the first place?) Consider the possibility that Perry’s view says too little about the role of morality in politics, and is rooted as well in an unduly optimistic view of judicial decisionmaking. Whether representatives in fact respond mechanically to political pressures is a sharply disputed question. A. Maass, Congress and the Common Good (1983), suggests that members of Congress often engage in some form of deliberation about what the public good requires. p. 63 See also S. Kelman, Making Public Policy (1985). If representative processes embody a large measure of deliberation — as Madison anticipated — the comparative advantage claimed for courts may not exist at all. Indeed, the comparative advantage may not exist if citizens themselves deliberate and if representatives respond to them. Many of the largest advances in American conceptions of rights have come from the democratic process, not the courts; consider the Americans with Disabilities Act. Are justices likely to know what the right answers are? What makes judges so good at thinking well about difficult moral issues? One might respond to a natural law court in the same way as did Judge Learned Hand: “For myself it would be most irksome to be ruled by a bevy of nine Platonic Guardians, even if I knew how to choose them, which I assuredly do not.” L. Hand, The Bill of Rights 73 (1958). Consider also Hand’s claim that “[a] society so riven that the spirit of moderation is gone, no court can save; a society where that spirit flourishes, no court need save; and in a society which evades its responsibilities by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.” L. Hand, The Contribution of an Independent Judiciary to Civilization (1944), in The Spirit of Liberty 155, 164 (I. Dilliard ed., 1960). See also A. Cox, The Role of the Supreme Court in American Government 116 (1976): “I should be no less irked than Judge Hand if the Supreme Court were to void an ordinance adopted in the open Town Meeting in the New England town in which I live — a meeting in which all citizens can participate — but I should have little such feeling about a statute enacted by the Massachusetts legislature in the normal political pattern, and none about a law made in that pattern by the Congress of the United States.” Does this view undervalue the fact that state and federal laws are at least in some sense the product of representative processes? For an emphasis on what the author, himself an influential judge, sees as the unmistakably political nature of Supreme Court decisions, see R. Posner, How Judges Think (2008). 3.The ninth amendment. The ninth amendment provides, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Does the amendment provide a textual grounding for the enforcement of natural rights that are not, themselves, enumerated in the text? Consider the following views: a. Testimony of Robert Bork, Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong., 249 (1987): “I do not think you can use the ninth amendment unless you know something of what it means. For example, if you had an amendment that says ‘Congress shall make no’ and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot.” b. Barnett, The Ninth Amendment: It Means What It Says, 81 Tex. L. Rev. 1, 1 (2006): [The] evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwards, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. c. Seidman, Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism, 98 Cal. L. Rev. 2129 (2010): “Because of the Ninth Amendment, the Constitution does not ‘deny’ or ‘disparage [natural] rights, but neither does it embrace or imply them. The Amendment puts off to another day a final reckoning of the extent to which we are bound by constitutional text.” d. McConnell, The Ninth Amendment in Light of Text and History, 2010 Cato S. Ct. Rev. 13, 23 “[The] rights retained by the people are indeed individual natural rights, but those rights enjoy precisely the same status, and are protected in the same way, as before the Bill of Rights was added to the Constitution. They are not relinquished, denied, or disparaged. p. 64 Nor do natural rights become ‘constitutional rights.’ They are simply what all retained rights were before the enactment of the Bill of Rights: a guide to equitable interpretation and a rationale for narrow construction of statutes that might be thought to infringe them, but not superior to explicit positive law.” For further discussion of the ninth amendment, see Chapter 6, section F1, infra. D.POLITICAL CONTROL OVER THE SUPREME COURT This section examines how the Court’s authority is subject to external political control. NOTE: AMENDMENT, APPOINTMENT, IMPEACHMENT, AND THE ELECTION RETURNS 1.Constitutional amendment. The most straightforward way for the people to respond to a Supreme Court decision with which they disagree is to amend the Constitution. But an amendment is exceedingly difficult to obtain. Under article V, the amending process may begin only if two-thirds of both Houses propose an amendment or if the legislatures of two-thirds of the states call for a constitutional convention. No amendment may be adopted until it is ratified by three-fourths of the states. These requirements were a deliberate effort to make it difficult to amend the Constitution. Why were constitutional amendments to be discouraged? And is discouraging them a good idea? Consider in this regard Jefferson’s view that the Constitution should be rewritten by the people every generation, on the theory that without frequent constitution-making there would be too little participation in and concern for the affairs of government. See Letter to Samuel Kercheval, July 12, 1816, in The Portable Thomas Jefferson 552, 558–561 (M. Peterson ed., 1975). Note in particular the view that [some] men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well. [It] was very like the present, but without the experience of the present. [Let] us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.... The dead have no rights. Id. at 558–559. See generally H. Arendt, On Revolution (1965), for discussion of Jefferson’s preference for citizen participation in affairs of government and for frequent constitutional revision. Madison rejected such proposals on the ground that they would produce “the most violent struggle between the parties interested in reviving and those interested in reforming the antecedent state of property.” Letter to Thomas Jefferson, Feb. 4, 1790, in The Mind of the Founder 232 (M. Meyers ed., 1969). Compare The Federalist Nos. 10 and 51, section A, supra. Jefferson’s contrary view was that even turbulence “is productive of good. It prevents the degeneracy of government, and nourishes a general attention to the public affairs. I hold that a little rebellion now and then is a good thing.” Letter to Madison, Jan. 30, 1787, in The Portable Thomas Jefferson, supra, at 416–417. Under this view, frequent revision of basic institutional arrangements might be welcomed. But as Madison’s view suggests, the stability of the Constitution is often taken to be one of its great virtues. Consider in this regard the discussion of the separation of the realm of law and the realm of politics in The Federalist No. 78 and in Marbury itself. p. 65 If frequent constitutional amendments were permitted, that distinction would be much less crisp; the effect of insulating certain decisions from politics would be undermined. Would that be a good or a bad thing? See generally Citizens for the Constitution, “Great and Extraordinary Occasions”: Developing Guidelines for Constitutional Change (1999); S. Holmes, Passions and Constraint (1995); S. Levinson, ed., Responding to Imperfection (1995). Note also that many states make it possible to amend their state constitutions through simple referendum. As a result, state constitutions are frequently altered. Thus, the Alabama Constitution has been amended over 700 times; the New York Constitution, over 200 times; the California Constitution, over 500 times; and the Texas Constitution, over 300 times. Under such regimes, the public is frequently involved in the process of constitutional decisionmaking — in such areas as budget deficits, permissible tax levels, environmental protection, and discrimination on the basis of race and sexual orientation. Consider the fact that constitutional amendments have frequently been on the national agenda in the last two decades. Might systems that allow frequent amendment operate as a salutary check on judicial review, or do they erase the advantages of ensuring that an insulated body will decide constitutional issues? Note also that many other nations, especially those emerging from communism, make it relatively easy to amend the Constitution. There are now over two dozen amendments to the federal Constitution. Four of them represent successful efforts to overturn decisions by the Supreme Court. See U.S. Const. amends. XI (limiting jurisdiction of federal courts to hear suits brought against states), XIV (deeming Americans of African descent citizens of the United States), XVI (expanding power of Congress to tax), XXVI (setting voting age). Numerous other amendments have been offered but thus far without success. They have dealt with, for example, gay marriage, child labor, abortion, school desegregation, school prayer, flag burning, the line-item veto, and a balanced budget. Proposed constitutional amendments were especially popular in the 1970s, 1980s, and 1990s. Consider also the lengthy history of the proposed equal rights amendment, discussed in Chapter 5 infra, which would have provided that equality under the law may not be denied on the basis of sex. See J. Mansbridge, Why We Lost the ERA (1986). For what issues is constitutional amendment desirable? Where does an individual rights provision fit in this framework? Consider the efforts in the wake of Texas v. Johnson, Chapter 7 infra, to amend the Constitution to protect the American flag against desecration. Many constitutional scholars argued vigorously that it would be especially risky to allow a constitutional amendment to counteract a Supreme Court decision protecting individual rights. Might there be a Jeffersonian response to this concern? Even if efforts at amendment are unsuccessful, perhaps they should be welcomed because of the effect that they have on the public and the Court itself. Consider the possibility that amendment efforts, like political pressures generally, exercise some influence over Supreme Court decisions. The effort to amend the Constitution might be a salutary part of an ongoing conversation among the Court, other branches, and the public at large. If a constitutional convention were called, would its authority be limited to particular issues or would it have general authority to amend the constitution as it chooses? See Special Constitutional Convention Study Committee, American Bar Association, Amendment of the Constitution by the Convention Method under Article V (1974). Should a court decide the issue? See the materials on the political question doctrine, section F infra. On the amending process generally, see S. Levinson, ed., Responding to Imperfection (1995); C. Vose, Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900 (1972); Corwin and Ramsey, The Constitutional Law of Constitutional Amendment, 26 Notre Dame Law. 165 (1951); Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386 (1983); Symposium on the Article V Convention Process, 66 Mich. L. Rev. 837 (1968). For an excellent overview, see D. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution 1776–1995 (1996). p. 66 For recommendations, see Citizens for the Constitution, “Great and Extraordinary Occasions”: Developing Guidelines for Constitutional Change (1999). Note also that many nations allow constitutional amendment through a process that is far less arduous than the American one, and also that some constitutions allow legislatures to “overrule” decisions of the highest court. Consider in this regard article 33 of the Canadian Constitution Act of 1982, which allows Parliament to declare expressly that a particular statute shall stand despite its conflict with many (not all) of the enumerated rights of the citizen. 2.The power to appoint. Members of the Supreme Court are appointed by the President, subject to the advice and consent of the Senate. As a result, the President has an opportunity to put justices on the Court who share his views. The appointing power has been important in controlling the direction of the Supreme Court. President Roosevelt responded to the efforts of the Court to invalidate aspects of the New Deal by appointing, among others, Justices Black, Douglas, Frankfurter, and Jackson. All of them turned out to be generally sympathetic to government regulation of the economy, although there developed sharp disputes over the scope of judicial protection of individual rights. After election campaigns marked by an emphasis on obtaining “strict constructionists” on the Court, President Nixon appointed Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist. Those appointments led to a more conservative Court and brought about some significant changes of direction, albeit of disputed scope. See V. Blasi, ed., The Burger Court: The Counterrevolution That Wasn’t (1983). President Reagan’s appointees — Chief Justice Rehnquist and Justices O’Connor, Scalia, and Kennedy — generally moved the Court in directions favored by President Reagan, although on several issues of individual autonomy — for example, abortion and gay rights — the cohort of Reagan-appointed justices has been divided. Similarly, President Clinton’s appointees — Justices Ginsburg and Breyer — have generally resisted the Court’s more conservative turn. President George W. Bush’s appointees — Chief Justice Roberts and Justice Alito — have not disappointed the expectations of the Bush White House, and Justices Sotomayor and Kagan have generally been the liberal voices that the Obama administration expected them to be. Early evidence strongly suggests that Justice Gorsuch will be the conservative member sought by President Trump. The overall picture, then, is that Supreme Court appointees vote in ways that broadly fit with the hopes and expectations of appointing Presidents, at least over the past century or so. But Presidents have sometimes been surprised to find that their appointees’ performance on the bench was more “liberal” or more “conservative” than expected. President Eisenhower, for example, appointed Earl Warren as Chief Justice, relying in part on Warren’s conservative, law-and-order reputation as governor of California. Eisenhower later claimed that the appointment was one of the worst mistakes he had ever made. Eisenhower also appointed Justice Brennan, whose record turned out to be quite different from what had been expected. Some of the votes of Justices O’Connor, Kennedy, and Souter were a disappointment to many supporters of Presidents Reagan and Bush; consider their failure to vote to overrule Roe v. Wade, discussed in Chapter 6 infra. Events of this sort indicate that the appointments process is not a guarantee of political control; justices do not move in lockstep with the President who appointed them. But the record strongly suggests that presidential control can shift the Court significantly, and that the appointments process makes it unlikely that Supreme Court justices will diverge too sharply or for too long from the desires of those with political power. For detailed treatments, showing the complexities here, see generally L. Epstein and J. Siegel, Advice and Consent (2007); Epstein et al., Ideological Drift among Supreme Court Justices, 101 Nw. U. L. Rev. 1483 (2007); H. Abraham, Justices and Presidents (1985); J. Schmidhauser, Judges and Justices(1979). p. 67 Note, however, that ideology is far from the only consideration in the appointments process. Region, race, gender, and religion of the appointee will sometimes play a role in the President’s decision. For general discussion, see id. at 41–82. The appointment decision is not the President’s alone. Early Senates often exercised an active role, and the Senate has regularly failed to confirm lower court judges. See generally L. Tribe, God Save This Honorable Court (1985). Consider the view that “the role of the Senate as well as interest groups cannot be overlooked. Particularly in periods in which a President lacked party or ideological support in the Senate, the influence of senatorial confirmation assumed far-reaching importance. Approximately one-fifth of

McCulloch and the Scope of National Power (CB9) 2008 Supreme Court Case

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