McCullough

1. McCullough • Important for its holdings • About the extent of Congressional power (the Court gives an expansive interpretation) • About the relationship between the national and state governments (the national is supreme) • Important for illustrating the kinds of constitutional argument that courts make • Text • Constitutional structure • The nature of a constitution or the Constitution • Original intent • Representation-reinforcement • Natural law [Calder v. Bull] • Tradition • We need some principle(s) for cabining the discretion of judges

2. McCullough • What are the facts? • McCulloch worked as a cashier for the Bank of the United States, and he refused to pay a tax that had been assessed by the State of Maryland against the Bank. • The Bank was originally created to furnish loans to the national government and to help collect taxes. • What are the two issues before the Court? • Does Congress have authority to create a Bank of the United States? • Can Maryland tax the Bank? • If the answer to this question is “no,” did the Court need to decide the first question? Did Maryland want the Court to declare the Bank unconstitutional?

3. McCullough • On page 62, the Court begins its answer to the question of Congressional power by telling us the history of the bank. • Why is it relevant that the first Congress created the bank after a fair and open debate? What kind of an argument is the Court making? • Original intent—Many of the framers were in the first Congress, and the members of the first Congress were very familiar with the debates about the meaning of the Constitution • Legislative competence to interpret the Constitution • Representation-reinforcement—The bank was approved after a fair process

4. McCullough • Why is it relevant that after the act for the first bank expired, the country experienced “embarrassments” and even the opponents were persuaded that a bank was needed? • It sounds like the bank was “necessary and proper” • There also is an argument from tradition • Note the Marshall isn’t very good about making his arguments in order. • He’s foreshadowing the necessary and proper clause argument with his recounting of history • In this next argument, he foreshadows the second question, whether Maryland can tax the bank

5. McCullough • On page 63, the Court discusses whether the Constitution was an act of the people or an act of sovereign, independent states. Why is that important? • Maryland argued that it was the act of sovereign, independent states and therefore that the national government’s powers must be exercised in subordination to the states. • The Court responds that ratification of the Constitution was an act of the people and that the states are bound by it • What kind of an argument is this? • It rests on the nature of the Constitution

6. McCullough • On page 64, the Court makes a second kind of argument for the supremacy of the national government—“If any one proposition could command the universal assent of mankind.” What kind of argument is this? • A natural law argument • The Court next invokes the Supremacy Clause to demonstrate that the states are subordinate to the national government. What kind of argument is this? • It’s an argument from text (Article VI)

7. McCullough • On page 64, the Court finally gets to the heart of the first question. The national government is a government of enumerated powers, and nowhere does it say that Congress can establish a bank. How is there power for Congress to do so? • Unlike the Articles of Confederation, the language of the Constitution does not exclude the possibility of implied powers or require that every power be explicitly stated • What part of the text does the Court cite?

8. 10th Amendment The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

9. McCullough • In addition to the argument from the text of the 10th Amendment, the Court makes a different kind of argument for why we should recognize implied powers. What is that argument (page 64)? • Constitutions by their nature provide only “great outlines” and do not “partake of the prolixity of a legal code” • There’s a second argument from text that also is based on the constitutional structure • Article I, § 9 lists limitations on the power of Congress—why would you need to list limitations if all powers are explicitly described?

10. McCullough • If the Constitution includes implied powers, is the power to create a bank one of those implied powers (pages 64-65)? • Yes. Congress has power to • Lay and collect taxes and borrow money • Regulate commerce • Declare and conduct war; raise and support troops • Congress must have ample means to exercise these powers—the Constitution would not grant certain powers, and then make it difficult to execute them (another argument from the nature of a constitution) • Note the point (page 73) that the Court may only be permitting means to implement express powers rather than recognizing implied powers—but is there any real difference between implied powers and means?

11. McCullough • We don’t need to rely just on an argument from the nature of a constitution. How else can we find authority for implied powers? • From text—the Necessary and Proper Clause (page 65) • The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,. . . . • Art. I, § 8, cl. 18

12. McCullough • How does Maryland argue from the text against a power to create a bank (page 65)? • Congress is not empowered simply to make “all laws” for carrying into execution its powers but all laws that are “necessary and proper” • “Necessary” means laws that are “indispensable, and without which the power would be nugatory”

13. McCullough • How does the Court respond to this argument from text, that “necessary” means “indispensable” (page 65)? • It looks to common usage of the word necessary and observes that people typically used “necessary” to mean “convenient” or “useful” • When people talk about employing the means to accomplish an end, they include “any means calculated to” accomplish the goal, not just the “single means, without which the end would be entirely unattainable” (this is not strict scrutiny)

14. McCullough • The Court looks to text in another provision to support its view that “necessary” means convenient, not indispensable (page 66). • When the drafters meant really necessary, they said so—Art. I, §10, cl. 2 • No State shall . . . lay any . . . Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws. . . . • But note that the Court also rejects the argument that Congress can pass penal laws only when the Constitution recognizes that power (Art. I, § 8) (page 66) • The Court also cites part of the necessary and proper clause text to show that “necessary” should not be read strictly • The clause says “necessary and proper” (page 67)

15. McCullough • The Court makes another argument about the nature of a constitution for why we should read the Necessary and Proper Clause expansively (page 66). What does the Court say? • Constitutions are meant to “endure for ages to come” and “be adapted to the various crises of human affairs” • Because it’s impossible to anticipate future circumstances, it wouldn’t have made sense to write a document that limited the ability of lawmakers to exercise their reason so they could accommodate legislation to current circumstances (constitutions are not legal codes)

16. McCullough • Next, the Court makes an argument about the structure of the US Constitution for why we should read the Necessary and Proper Clause expansively (page 67). What does the Court say? • “The clause is placed among the powers of Congress, not among the limitations on those powers” • It is listed as “an additional power”

17. McCullough • Building on the Court’s point that the clause looks like an additional power rather than a limitation of power, we could make an argument about the text of the Necessary and Proper Clause. Looking at its language, • The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers • What two words would you substitute for “all” if you wanted to make the clause into a limitation of power? • Change “all” to “only those”

18. McCullough • What’s the bottom line (page 68)? • “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.” • Note the bit of circularity to this principle • Given the broad reading of necessary and proper, we can easily justify a Bank of the United States (p.68). All those who are responsible for the administration of the government’s finances think it important to have a bank and all those who previously opposed the bank now support it.

19. McCullough • Now, to the second question. May Maryland tax the bank? • The Court begins by acknowledging the power of states to tax and the fact that the Constitution did not take away that power when it granted a taxing power to the national government (pages 68-69) • But it also is true that the Constitution can restrict the state power to tax (as it did when it prohibited duties on imports and exports). How does this point support Maryland? • The framers said so when they meant to limit the ability of the states to tax.

20. McCullough • Why can’t Maryland tax the bank? • If the national government has the power to do X, states do not have the power to interfere with X. • The power to tax is the power to destroy (imagine a 500 percent tax on the sale of firearms)

21. McCullough • Why can’t we let the states exercise their power to tax the bank and rely on their restraint in exercising the power? • The taxing power may be “legitimately exercised . . . to the utmost extent . . . to which the government may choose to exercise it” (page 70) • We rely on the accountability of legislators to their constituents to prevent abuse of the taxing power • Why won’t legislative accountability work in this case? • The Maryland legislators are accountable only to the Maryland voters (representation-reinforcement) • They receive their authorization to act only from Maryland voters, and only Maryland voters can replace them

22. McCullough • If Maryland can’t tax the national bank, why can Congress tax Maryland banks (page 71)? • Congress can tax state banks because all states are represented in the national legislature • But can’t some states gang up on other states? • The taxes “must be uniform” (Art. I, § 8, cl. 1)

23. Constraining judicial discretion • Original intent • Whose intent? The framers? Which ones? The participants in the state ratifying conventions? • Subjective intent or “public meaning?” • General principles or specific conceptions? • Second amendment and the part about a well-regulated militia • Why should the past bind the present? • Natural law • Framers probably cared about it • But what are those principles, and how do we apply them? • Should the interests of pregnant women prevail, or the interests of fetuses?

24. Constraining judicial discretion • Representation-reinforcement • We don’t look at substantive outcomes of lawmaking; we consider the fairness of the lawmaking process • But is a pro-choice law unfair because fetuses are not represented, or is an anti-abortion law because most legislators are men? • Tradition • Madisonian in its appeal to heterogeneous constituencies—those over time • Disfavors the dissenter from traditional values • What is the relevant tradition? • In deciding parental rights for the child of an adulterous relationship, is the relevant tradition the rights of biological parents or the rights of adulterous parents?

25. Checks on the judiciary • Constitutional amendment • Arduous—only 17 in 220+ years • Presidential control through the appointment process, and Senate control through the approval process • Impeachment • Sensitivity to public opinion • Art. III, § 2, cl. 2

26. Art. III, § 2, cl. 2 • In all the other Cases . . ., the supreme Court shall have appellate Jurisdiction, . . . with such Exceptions, and under such Regulations as the Congress shall make. • Can Congress restrict the Supreme Court’s appellate jurisdiction however it wants?

27. McCardle • After the Civil War, Congress enacted the Military Reconstruction Act, which established military government in the south, as a way to protect blacks—as well as whites who were loyal to the Union—against harassment by southern state authority. • McCardlewas editor of the Vicksburg Times, and he wrote a series of disparaging anti-Reconstructionist editorials in his paper. • In one, he urged whites to boycott an election called to authorize a state constitutional convention, he offered to pay one dollar for the name of any white known to have voted, and he promised to publish the names of white voters in his paper.

28. McCardle McCardlewas arrested and charged with libel, disturbing the peace, inciting disorder and impeding reconstruction. He filed a habeas corpus petition in federal district court and lost. Invoking an 1867 habeas corpus act, McCardleappealed the habeas decision, but Congress repealed the 1867 act. The Court concluded that it lacked jurisdiction and dismissed the case.

29. McCardle • But wait! • The Court dismissed the case for lack of jurisdiction even though there was an alternative basis for jurisdiction • McCardlehad invoked a provision in the Habeas Corpus Act of 1867 giving a right of appeal from circuit courts in habeas cases • Yet as the Court indicated in the next to last paragraph of the opinion (page 85), the 1868 repeal did not affect McCardle’s ability to seek Supreme Court review under the Judiciary Act of 1789, which also authorized habeas writs (as indeed Congress had to under Article I, § 9, cl. 2)

30. McCardle • The Court typically will not boot a petitioner out if the petitioner invokes the wrong source of jurisdiction, especially since the petitioner can refile the case. Why deny review? • McCardlewas out on bail and had resumed his flaming editorials. • Congress had a few years earlier reduced the size of the Court from ten to seven members, and the House had passed a bill requiring a supermajority vote of the Justices to invalidate an act of Congress. The Court may not have wanted to alienate Congress further. • The Court recognized the need of Congress to employ the Military Reconstruction Act to protect blacks and Union loyalists in the South following the Civil War.

31. McCardle • The Court typically will not boot a petitioner out if the petitioner invokes the wrong source of jurisdiction, especially since the petitioner can refile the case. Why deny review? • McCardlewas out on bail and had resumed his flaming editorials. • Congress had a few years earlier reduced the size of the Court from ten to seven members, and the House had passed a bill requiring a supermajority vote of the Justices to invalidate an act of Congress. The Court may not have wanted to alienate Congress further. • The Court recognized the need of Congress to employ the Military Reconstruction Act to protect blacks and Union loyalists in the South following the Civil War.

32. Art. III, § 2, cl. 2 • How should we interpret this clause? No clear answer • Plenary power to limit appellate power? • Power to restrict appellate review as long as there is some way to get to the Supreme Court? • “Exceptions” is meant to allow limited restrictions, and only those that do not undermine the Court’s essential role in the constitutional system • In any event, the clause is limited by the Bill of Rights • Internal versus external limits