Prof. Michael M. Uhlmann -"Marshall Takes on the Virginia Anti-Federalists"

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By The James Wilson Institute • Posted on Mar 26 2019

JWI affiliated scholar Prof. Michael M. Uhlmann, in his article titled Marshall Takes on the Virginia Anti-Federalists, counters Nelson Lund’s recent piece in Law and Liberty by challenging his assessment of Chief Justice John Marshal’s role in the ever-expansive scope of the federal government. Prof. Uhlmann, refutes Lund’s implication that Marshall’s rulings led to the eventual establishment of the New Deal. Furthermore, he pushes back on criticism of Marshall’s often excessive nationalism, by contextualizing the great threat from advocates of state sovereignty that the Federal Union faced. In Marshall’s decisive rulings in McCulloch and Cohens v. Virginia Prof. Uhlmann emphasizes the Chief Justice’s role in reaffirming the country as a Union and moving it away from the anti-federalist’s desired Confederation of States. Excerpts from the article: "If I read him right, the threefold thrust of Professor Lund’s argument comes to this: That Marshall took unjustified liberties in his reading of the Necessary and Proper Clause; 2) that, even assuming Marshall’s latitudinarian reading of Article I, Section 8 were defensible, the Court ought to have imposed something like strict scrutiny when assessing congressional judgments about what was truly necessary and proper; and 3) that, in any event, McCulloch unfortunately gave Congress carte blanche to determine the reach of Article I’s grant of legislative power.” “Although numerous Progressives have worked overtime to harness Marshall’s rhetoric to their purposes, one cannot fairly draw even a jagged a line that runs from Marshall to the New Deal. Marshall’s devotion to limited government (in contradistinction to energetic government) is hardly questionable, and despite brickbats hurled at him by disgruntled critics of Anti-federalist disposition, his nationalism was not consolidation list. He would be appalled by modern constitutional jurisprudence in all of its pomp and works, on everything from federalism, to the role of courts, to the invention of rights and the instantiation of the administrative state. To imply that today’s national government hegemony finds its roots in McCulloch’s rhetoric is, to say no more, both ahistorical and unjust.” “In short, the argument about McCulloch is about much more than the constitutionality of a nationally charted bank, even much more than how one ought to read the Necessary and Proper Clause. It is, as Marshall said to Story, essentially about the very nature of the Union itself, and how one reads the core bargain struck at Philadelphia and the state ratifying conventions. Lord knows, there was plenty of room for disagreement even among those who agreed with that bargain as articulated by Publius. (I leave to one side the argument James Madison had with himself about the nature of the Union he helped to create.) But Marshall believed the extra-chromosome states-righters exemplified by the Richmond Junto to be a thing apart.” “I share Professor Lund’s lament about the explosion of national power in the modern era, but to lay even part of the blame at Marshall’s door is unwarranted. Among other things, between him and us there are diverse exogenous events of great import that have more to do with the growth of government than anything spoken or even imagined by John Marshall—to name just a few, the Civil War and the Fourteenth Amendment, two world wars, the 50-year fight against communism, the emergence of the United States as a world power generally, the Sixteenth and Seventeenth Amendments, and the Progressive assault against the Founders’ Constitution. Measured against these weighty forces, any excessive rhetoric on the part of John Marshall hardly makes a mark.” Read the whole article here.