“The Case Now to Be Determined”

Abstract Conventional history maintains that Chief Justice Marshall was a “nation-builder” and McCulloch v. Maryland his signal achievement, expressing a nationalist vision that established the foundation for the modern welfare state. McCulloch is celebrated for three elements: a nationalist theory of the Constitution, a permissive view of implied powers, and a capable Constitution theory holding that the Constitution should be interpreted flexibly to empower the national government to address unforeseen national problems through changing circumstances. This conventional account claims that McCulloch was a causal agent in congressional policy decisions that built up the American nation, or less ambitiously, that McCulloch was a source of ideas that guided political debates, or that McCulloch bound and directed later Supreme Courts through the mechanism of judicial precedent. All three of these causal arguments for McCulloch’s historical influence are greatly exaggerated, if not false.