WI Law in Action Podcast: David Schwartz on John Marshall, McCulloch v. Maryland, and the Changing Scope of National Power

WI Law in Action podcastOn the latest episode of the WI Law in Action podcast from the UW Law Library, Professor David S. Schwartz, discusses his new book, “The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland” in which he chronicles 200 years in the life of one of the most important Supreme Court cases in U.S. history.

Professor Schwartz on McCulloch and the changing scope of national power:

McCulloch versus Maryland was decided exactly 200 years ago and it was the first major Supreme Court decision on the scope of national powers. Every constitutional law course teaches McCulloch to introduce the subject of the federal government’s powers. But in my research, I found that it wasn’t always viewed as the authoritative word on the scope of national powers. It turns out that every generation has interpreted McCulloch differently. They’ve interpreted it in ways that really tell us a lot about how that generation viewed constitutional law.

Professor Schwartz on how Chief Justice John Marshall, author of McCulloch, is viewed differently by constitutional lawyers and legal historians:

I think legal historians tend to be interested in understanding the past on its own terms, but constitutional lawyers approach history differently. I think they’re interested in explaining the present. And so they ask, “What is our constitutional doctrine today and how is it justified?” And so I think both by training and also by disposition, constitutional lawyers read the past through the lens of present day ideas and present day doctrine. And I think as a result, they tend to create myths and symbols which are useful to convey those ideas about the present.

So for example, today we understand that the federal government has broad constitutional powers, and because Chief Justice Marshall was the first great expounder of the Constitution, he’s become something of a hero for constitutional lawyers who tend to view him as a nationalist who shares 21st century ideas about the scope of federal power. That’s really ahistorical and historians paint a more modest picture of Marshall. They see no point in asking, “What would John Marshall think of our constitutional interpretations today?” They want to understand him in his historical context. And so those two different approaches I think produce diverging views of who John Marshall was.

To learn more about Professor Schwartz’s work, visit his profiles on the UW Law School Digital Repository and SSRN.