The following analysis only considers the text of the Supreme Court opinion. It does not consider the arguments brought before the Court that affected the issues presented. The talent of the lawyers can have a profound effect upon text we read; and, consequently, the results of the decision. The analysis presented only concerns itself with the results on the trajectory of the nation. The circumstances and inputs to the Court are for another, larger perspective.
Marbury v. Madison (1803) is normally considered the cornerstone Supreme Court case for judicial review. I submitted both in a prior blog article and Political Vertigo the view that the Supreme Court assumed the power of judicial review as a result of this case is erroneous. For starters, the term, judicial review, didn’t exist until 1910. It is also ironic that in Marshall’s opinion he clearly states that one branch (legislature) cannot give another branch (judicial) a power not granted in the Constitution without the ratification of the states per the amendment process. To think that Marshall believed the judicial branch could grant itself a power not in the Constitution is absurd.
There is a nuanced difference between the judicial power granted in the Constitution and our understanding of judicial review. In short, the constitutional power is for a one-time ruling – and the other two branches of the national government are not bound to anything by the decision. The only potential for constitutional punishment possible for ignoring a Supreme Court decision is that Congress might choose to invoke the impeachment power of the Executive – if it agrees with the Court.
The only thing that gives the Supreme Court true power over the Executive and Congress is the court of public opinion. On its face, this sounds like Madison’s and Jefferson’s vision of the people as the ultimate arbiter is effected in this way, but our education system today teaches that the Supreme Court has the final say. For either of the other two branches to ignore a Supreme Court decision today would be political suicide for the party in power in that branch because the public would view it as an attack on the Constitution itself. This was not always the case. Earlier generations did not view the Supreme Court as the final say, so public opinion was based upon the Constitution as the people understood it rather than that of the judges. Although not a direct action-reaction, Jackson’s written veto of a Third National Bank is an example of the Executive reversing a Supreme Court decision. At the national level, Supreme Court decisions have no impact unless the Executive enforces them.
The preceding paragraphs only address the typical horizontal view of the effects of judicial review. In truth, the effects of judicial review in the horizontal plane have been of little consequence. What effect it has had is that the Supreme Court has allowed the Legislature to delegate a significant part of its legislative power to the Executive branch, thereby diluting the distribution of representation and tilting the government toward the oligarchy of the administrative state. The assault on self-governance really takes place in the vertical plane when the branches align. The target is federalism, and the true cornerstone case is McCulloch v. Maryland in 1819.
The overview of McCulloch v. Maryland is pretty simple to follow.[1] There were two issues that were addressed:
- Does the national government have the power to incorporate a bank? In this case, the Second Bank of the United States was at issue.
- Can the state of Maryland tax a branch of a national bank?
We might start by viewing the decision as defining the weights of each side of a tug-of-war between the powers of the national and state governments. On the national side, we have:
- The necessary and proper clause in Article I, section 8.
- Hamilton’s doctrine of discretionary powers
- The supremacy clause in Article VI, clause 2.
On the states’ side we have:
- Enumerated “Powers of Congress” in Article I, section 8.
- The 10th Amendment
Rather than being a one-time decision, the opinion has come to establish the relative strength and priorities of these constitutional principles, to the detriment of federalism.
Marshall starts his opinion by acknowledging that the power to incorporate a bank is not enumerated in the Powers of Congress in Article I, section 8. He then goes on to make a painfully long and twisted argument about the meaning of necessary.[2] His opinion that the national government has the power is a classic example of saturating an argument with the fallacies of circular reasoning, begging the proof, and affirming the consequence. The reader is left dizzy and confused. The crux of his argument denies that necessary means necessary because the framers did not prefix it as absolutely necessary. He makes a point that the framers did use absolutely necessary in limiting state powers in Article I, section 10, clause 2 to reinforce this view. This point subliminally reduces the stature of the states and sets up a bias for the second issue. His strongest point is perhaps that the necessary and proper clause is in section 8 rather than section 9 (limitations on congressional power), so it was intended to be expansive instead of restrictive. Let us look more closely at section 8.
Article I, section 8 first enumerates congressional powers. The final clause is the necessary and proper clause. We will leave the historic evidence about the development of these clauses during the Convention and Committee of Detail for another day. How this clause is interpreted has a major impact on the nature of our federal system. The Supreme Court’s interpretation in McCulloch was that the clause was put in section 8 to expand the enumerated powers to guard against restricting the government against unforeseen problems. It is important to highlight that this is James L. Payne’s illusion of government preeminence.[3] That is, this position assumes that the government is the only problem solver in society. If we interpret the clause as restrictive, it allows for the states – and the people – to be problem solvers outside the boundaries enumerated in section 8. With this latter interpretation, the clause does allow for powers that must be invoked to effect an enumerated power to be legitimate; however, the potential for abuse is astounding. Some of the framers themselves refused to sign the Constitution for this very reason. More on that will be in a later article.
We need to revisit one final element of Marshall’s opinion on incorporating a national bank. The Court found that the Second Bank of the United States was constitutional partially because the first Congress and administration had set up the First Bank of the United States. Since original framers and men of great integrity were involved, the implication is that they got it right. In a legal system built upon precedence this makes sense. As a logical argument, it is clearly fallacious. It does encourage us to look a little deeper into what happened during the first administration and Congress in 1791.
President Washington was skeptical of whether the bill creating the First Bank was constitutional. As Washington did throughout the Revolution, he consulted his staff, in this case, the cabinet. He asked them all to write down their thoughts and present them to him. Of the four members, three key players to consider are: 1) Edmund Randolph 2) Thomas Jefferson and 3) Alexander Hamilton. In addition, Washington held private conversations with the leading opponent of the Bank in the House, James Madison. Washington was so concerned that he had Madison draft a veto of the bill.[4]
Washington, Madison, Randolph, and Hamilton had all participated in the Convention. Jefferson had not. Randolph refused to sign the Constitution (partially because of the necessary and proper clause)[5] but was the Attorney General at the time. Neither Madison nor Randolph thought the bank was constitutional.
Jefferson, as Secretary of State, made a compelling logical argument that the bank was a convenience not a necessity.[6] He had read Madison’s notes and went further to point out that a motion to specifically enumerate the power to “cut canals” had been defeated during the Convention on 14 Sep 1787 when it was pointed out that this would lead to the incorporation of a bank. This should have sealed the deal against the bank, but we need to remember that, like Jefferson, we have to rely on second-hand information (Madison’s notes and assorted archives). Washington and Hamilton were in the room.[7]
Hamilton was a lawyer, the Secretary of the Treasury and a strong proponent of strong central government. He had virtually self-destructed in the Convention on 18 June 1787 when he presented a radical plan with little federalism.[8] Nevertheless, he championed the Constitution but pushed the doctrine of discretionary powers in the process. Conveniently, the necessary and proper clause opened the door for Hamilton’s argument. His main premise was the fallacy of affirmed consequence that the “sovereign power must rule” – and, of course, the national government was sovereign – as opposed to the people. He appears to have presented his letter to Washington after Randolph and Jefferson because it is a long letter that specifically refutes both of their positions against the bank.[9] We can later see his arguments reflected in McCulloch. For whatever reason, Washington decided to accept Hamilton’s view and signed the bill.
The major concern of the framers against the national government establishing corporations seems to have been monopoly. In our terms today, they were concerned about the government squeezing out the private sector. How much good or harm the First Bank of the United States perpetrated is debatable; however, Congress did take advantage of the 20-year sunset provision not to renew the bank in 1811. That set the stage for the Second Bank of the United States in 1816 and McCulloch in 1819. To complete the sequence, Andrew Jackson vetoed the bill for a third bank. That would be the end of the series until the Panic of 1907 and Federal Reserve Act in 1913. Unlike the wisdom of the founding generations, the Fed was created without a sunset provision.[10]
For the reasons above, the Court found that indeed the national government has the constitutional power to incorporate a bank.[11] Marshall then lays the framework for the second part of the decision by pointing at the Supremacy clause, that states that any law in keeping with the Constitution is the “supreme law of the land”. This is where Pandora’s Box starts to open.
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; 2d. 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.[12]
The Constitution states that a law derived from it is supreme, not that the national government is supreme. Marshall claims that the people ratified the Constitution, not the states – because state conventions voted rather than the state legislatures. Be your own judge of the validity of this premise. He uses it to discount the argument that “the states created the national government, so they can destroy it”. Since the power to tax is the power to destroy, if a single state could tax the national government, it could destroy the national government, without consideration of the citizens of the other states. Clearly the national government could likewise destroy a state via taxation, but Marshall calls on the Federalist Papers to discount this possibility. In making his argument, he fundamentally establishes the dominance of the supremacy clause over the 10th Amendment – rather than including the 10th Amendment as a precursor in determining constitutionality. This turns federalism on its head.
Having laid the groundwork for the second part of the decision, Marshall considers Article I, section 10, clause 2.[13] That clause clearly bans the states from taxing “imports” and “exports” – beyond recovering overhead. Marshall concedes that this clause is not directly applicable but then lays out a compelling argument that gets to the reason the framers put the clause into the Constitution. The clause was designed to prevent states from taxing each other, thereby preventing a “tax war”. Marshall’s argument then becomes that a state taxing the national government is the same as a state taxing all the other states, not just one. Constructively this argument is sound; however, the consequent application of it is devastating.
The following quote in the opinion is a turning point against federalism:
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.
Taken in context, this statement meant specifically that the national government can tax the states, but states could not tax the national government. Taken out of context, it is difficult to escape the interpretation that the national government, not the Constitution, is supreme (to the state governments). The effect of this statement and the decision was not really felt for more than a century, but McCulloch was a “slow-release capsule” that has effectively repealed the 10th Amendment as a state check on national power.
The judicial review credited to Marbury v. Madison has never really been the major issue because it only affects horizontal balances within the national government. On the other hand, McCulloch v. Maryland has wrought destruction to the federal system – and perhaps, the Republic. In 1819 (when McCulloch was decided) society viewed the government as bottom-up, and the federal system was still administered congruently (in accordance) with that society. Successive generations have gradually lost their affinity for bottom-up government (possibly because of McCulloch), and McCulloch has become more influential (in invalidating the 10th Amendment). After almost two hundred years, we see a system of government that is administered from the top down. The national government perpetually uses the necessary and proper and supremacy clauses to assume unconstitutional powers. To make matters worse, since the 17th Amendment, the states, as agents of the people, have had no power to check these abuses without an Article V Convention of States.
The question to consider is whether this top-down government aligns with the existing society. If true, the United States is no longer truly a republic.
[1] https://www.law.cornell.edu/supremecourt/text/17/316
[2] https://www.law.cornell.edu/supremecourt/text/17/316
[3] James L. Payne, Six Political Illusions (Sandpoint, ID: Lytton Publishing Company, 2010).
[4] https://founders.archives.gov/documents/Washington/05-07-02-0232
[5] http://teachingamericanhistory.org/convention/debates/0910-2/ (14 Sep 1787)
[6] http://avalon.law.yale.edu/18th_century/bank-tj.asp
[7] http://teachingamericanhistory.org/convention/delegates/
[8] http://teachingamericanhistory.org/convention/debates/0618-2/
[9] https://history.hanover.edu/courses/excerpts/111hamilton.html
[10] https://www.federalreserve.gov/aboutthefed/fract.htm
[11] https://www.law.cornell.edu/supremecourt/text/17/316
[12] https://www.law.cornell.edu/supremecourt/text/17/316
[13] https://www.law.cornell.edu/supremecourt/text/17/316
