THE SPIRIT OF THE CONSTITUTION: JOHN MARSHALL AND THE 200-YEAR ODYSSEY OF MCCULLOCH V. MARYLAND. By David S. Schwartz (*) Oxford University Press. 2019. Pp. 328. $34.95 (Cloth).
"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." (2) This famous passage in McCulloch v. Maryland can be read in at least two different ways. On a narrow reading, the ends in question are Congress's enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the "foregoing powers" provision) to carry those enumerated powers into execution. (3) On a broad reading, these ends also include the six great objects of the Constitution stated in the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the "all other powers" provision, also known as "the Sweeping Clause") refers. (4)
Modern courts and scholars have generally adopted the narrow reading. All of the opinions in NFIB v. Sebelius, for example, limit their attention to the foregoing powers provision and its connection to enumerated powers when considering the scope of the Necessary and Proper Clause. (5) None of the Justices contemplates a broader use of McCulloch's central holding, according to which the individual mandate could be justified simply as a necessary and proper means to promote the common good or general welfare of the United States. Likewise, most of Marshall's leading biographers and commentators--for example, Beveridge, White, Smith, Newmeyer, Killenbeck, and Ellis--presuppose a narrow reading of the "Let the end be legitimate" passage. (6) When discussing this passage and the ends "within the scope of the constitution" to which Marshall refers, none of these scholars pauses to consider whether these ends include the objects enumerated in the Preamble.
David Schwartz is a welcome exception to this pattern. In his fascinating new book, The Spirit of the Constitution, Schwartz highlights the fundamental ambiguity of the "let the end be legitimate" passage, in the course of making clear just how evasive and unsatisfying Marshall's entire opinion in McCulloch really is. Most scholars recognize that Marshall's text supports different and, at times, incompatible readings of implied powers, some breathtakingly wide and others cautiously narrow. With unrivaled depth, sophistication, and attention to detail, Schwartz hammers home this point like never before. Along the way, he places certain nationalist readings of McCulloch that have been ignored or minimized more squarely on the table, including two that are especially noteworthy: the early Federalist theory of implied powers rooted in the Preamble and Sweeping Clause, and a narrower, but still robust, conception of "implied commerce powers" given by the Commerce Clause and the foregoing powers provision.
Schwartz focuses most of his attention on...