Nahmod Law

McCulloch v. Maryland

There are two major parts of McCulloch v. Maryland, 17 U.S. 316 (1819): Part I upholds the constitutionality of the federal legislation creating the National Bank, while Part II strikes down (based on structure and representation reinforcement, but without express textual support) the Maryland tax on the National Bank. In this post I want to say a few things about Part I in particular.

Marshall first sets out the history of the National Bank and then argues that general reasoning (from the nature and structure of government) supports the constitutionality of the federal legislation. He next goes on to argue that the Necessary and Proper Clause further supports this conclusion.

What is particularly interesting to me in Part I (beyond Marshall’s famous observation that “it is a constitution we are expounding”) is his sophisticated discussion of language, a discussion that reminds me of some postmodern thought. Consider, for example, what he says in connection with the meaning of “necessary”: “Such is the nature of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense.”

Marshall’s Exegesis

Marshall then engages in persuasive exegesis, building the meaning of “necessary” from the inside out: he discusses the common usage of “necessary,” goes on to consider the accompanying language, “and proper,” in the Clause, and finally addresses the placement and context of the Clause among the powers of Congress so as to buttress his interpretation. I point out to my students that something like this also goes on in literary analysis: no word stands alone and in isolation from its placement and context in a poem or other work of literature.

Constitutional Education

I also consider as significant another of his observations in Part I. In speaking about the nature of the Constitution, Marshall explains why it could not be, and should not be, as detailed as a legal code. One reason he provides is often overlooked these days but is nevertheless noteworthy: “It would probably never be understood by the public.”

I think Marshall is implying that it is vital in a democracy that the people understand the Constitution, at least in broad terms. Unfortunately, this is a goal that the legal profession and the media have fallen far short of. Lawyers and law students may be receiving a constitutional education but we have not done a very good job of educating the public about the Constitution and the legal system in general. And the media have not helped very much: in fact, much of the time the media don’t even understand the legal matters they purport to be reporting on.