The Spirit of the Constitution

Abstract McCulloch v. Maryland is widely regarded as the greatest constitutional decision ever issued by the United States Supreme Court. Written in 1819 by Chief Justice John Marshall, the ruling upheld Congress’s constitutional power to create the Second Bank of the United States, recognizing the “implied powers” of Congress and the supremacy of federal over state laws. Modern constitutional scholars believe that McCulloch established the constitutional foundation for the historic expansion of federal authority in the wake of the New Deal. But The Spirit of the Constitution argues that the nationalizing potential of McCulloch has not been fully realized. Rather than establishing broad federal legislative power, McCulloch was virtually ignored for its first fifty years. Even Marshall shrank from the full nationalist reach of his own decision. When the late-nineteenth-century Supreme Court finally recognized McCulloch as a “great case,” the Court cited it more frequently when exercising judicial review to limit the powers of Congress rather than to expand them, striking down federal laws in the name of states’ rights and reserved state powers under the Tenth Amendment. Only briefly in the mid-twentieth century did the Court nearly embrace the full extent of McCulloch’s vision of implied powers, as it upheld broad federal laws regulating the economy and promoting racial equality. McCulloch’s 200-year odyssey, from 1819 to the present day, helps us understand how the “spirit” of the Constitution, and its structure of federalism, have been reinterpreted again and again throughout the eras of U.S. constitutional history.