The Mythical McCulloch


Generations of lawyers have been taught that McCulloch v. Maryland is the foundational precedent that established an expansive view of national power under the U.S. Constitution. In The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz maintains that this is a myth created by twentieth-century progressives in order to make the expansive view they favored seem more venerable than it really is. I am satisfied that he has proved his case, though I am less sure that his revisionist history throws any new light on the spirit of the Constitution.

Schwartz’s detailed commentary does sharpen the issues raised by recent efforts to cabin the expansive view of national power that McCulloch supposedly established. He likes what the progressives did with Chief Justice Marshall’s opinion and he laments the federalism decisions that began with United States v. Lopez in 1995. Schwartz thinks McCulloch has now been turned into a “splendid bauble,” but the truth is just the opposite. After thirty-five years, we have a few Supreme Court decisions whose effects have been trivial and whose pretended limits on federal power can easily be evaded. So far, the federalism revival has produced only pretty baubles, and the Court’s opinions promise nothing of any greater significance in the future.