America's Unwritten Constitution: The Precedents and Principles We Live By (7 page)

Seen this way, the clause calls to mind the ex-post-facto clause, which was also understood by leading Federalists as simply making explicit what would otherwise have been merely (but clearly) implicit. Indeed, the link between the two clauses was even tighter, for the necessary-and-proper clause included an important textual reminder that congressional laws should be “proper.” Marshall understood
propriety
in this context to mean that congressional laws had to fit with the “spirit of the constitution” and not merely its “letter.” A law that was merely a “pretext” should not be upheld under the necessary-and-proper clause, Marshall insisted.

Note what this means. As Marshall took pains to prove, the necessary-and-proper clause subtracted nothing from federal power. The clause “cannot be construed to restrain” the earlier enumerated powers of Congress. Therefore, Marshall believed that the earlier enumerations themselves included a propriety requirement—albeit an implicit one. Just as Blackstone, in a passage paraphrased at Philadelphia by Ellsworth and Wilson, had
insisted that ex-post-facto laws were not “
properly”
viewed as true laws, so Marshall insisted that all federal laws were governed by a propriety requirement, and would have been so governed even if the necessary-and-proper clause had never existed.

An illustrative hypothetical to highlight the difference between “proper” and “improper” congressional action: Suppose that in June 1789, the First Congress had enacted a law restricting the transportation across state lines of certain “noxious” items. Ordinarily, such a law would fall squarely within the letter and spirit of Congress’s enumerated power to “regulate Commerce…among the several States.” Suppose, however, that this law had defined “noxious” items to consist solely of “newspapers and pamphlets recommending that the people elect a different set of Representatives to Congress in 1790.” Would such a law truly fit the spirit of the Constitution? Would this law be constitutionally “proper,” or instead be an impermissible “pretext”?

In confronting this hypothetical, most modern Americans would instinctively reach for the First Amendment. But in June 1789, the First Amendment had yet to be proposed by Congress or ratified by the states.

No matter. The free-expression core of that amendment was itself merely declaratory—making textually plain what was otherwise strongly implicit. When we read the Constitution as a “whole instrument,” we readily see that it was designed to establish a regime of fair elections and thus robust political expression. In such a republic, the people would freely choose their congressmen, and Congress would have no proper power to squelch or skew electoral discourse, especially discourse about whether incumbent congressmen should be reelected. In light of the entire Constitution’s basic structure, our hypothetical law should be seen as an improper, and therefore unconstitutional, use of an express enumerated power—even in the absence of the First Amendment, and, indeed, even had the Constitution omitted the purely declaratory word “proper.” From day one, the Constitution prohibited certain kinds of federal censorship even though the underlying prohibition could be said to be purely implicit.
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LET US NOW TURN
to the second question decided by
McCulloch
, and Marshall’s argument that no state could unilaterally tax the federal bank
(or any other proper federal instrumentality). Today, many treat this part of
McCulloch
as relying solely on the text of the Constitution’s supremacy clause, which declares that “the Laws of the United States which shall be made in Pursuance” of the Constitution prevail over “Contrary” state laws. In 1983, Justice Harry Blackmun, joined by three colleagues, wrote that “the Supremacy Clause, of course, is the foundation of
McCulloch v. Maryland
, where the Court laid down the principle that the property, functions, and instrumentalities of the Federal Government are immune from taxation by its constituent parts.”
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In fact,
McCulloch
invoked the supremacy clause in a more subtle way. Marshall treated the issue of state taxation of a federal agency as governed not so much by the decisive words of a single clause as by the deeper principles animating the document as a whole. Marshall insisted on reading between the lines to vindicate the document’s spirit, rather than focusing solely on its letter:

       
There is no express provision for the case
, but the [bank’s] claim has been sustained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so interwoven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds. This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them. (Emphasis added.)

Marshall had at least three reasons for conceding that no “express provision” applied. First, nothing in the congressional statute creating the bank explicitly immunized it from state taxation, though such immunity was surely implicit. (It went without saying.) Second, the 1781 Articles of Confederation—the compact among the thirteen states that the Constitution had displaced—had included language in Article IV, paragraph 1, that spoke directly and specifically to the issue of state taxation of federal property: “[N]o imposition, duties or restriction shall be laid by any state, on the property of the united states.” No clause in the Constitution itself was comparably explicit. Third, the Constitution, in Article I, section 10, declared that “[n]o State shall, without the Consent of Congress,” impose
certain taxes on tonnage, imports, and exports. Maryland argued that these clauses should be read to set forth the
only
kinds of state taxes that were unconstitutional, and that otherwise states should be free to tax as they pleased.

Marshall sidestepped these mild clausal embarrassments by reminding readers of the principles that pervaded the Constitution as a whole, as distinct from those that had animated the Articles of Confederation. The Confederation had been proudly premised on state sovereignty: Its Articles had opened by proclaiming that “[e]ach state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation
expressly
delegated to the United States” (emphasis added). In a document that prioritized states’ rights so emphatically and sweepingly, the immunity of federal agencies and federal property from state taxation was something that needed to be, and therefore was, stated expressly. As Marshall made clear at the outset of his
McCulloch
opinion, the Constitution stood on wholly different ground. It was not premised on state sovereignty. It pointedly omitted any language requiring that all limits on state power be “expressly” stated. In
this
document, no counterpart language to the old Article IV, paragraph 1, was needed. The impropriety of state taxes on proper federal agencies went without saying.
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Marshall proceeded to elaborate how state taxation of federal instrumentalities inverted first principles of logic and legitimacy. Logically, the whole was greater than the part; thus, no mere part of the union could undo what the union as a whole had done. States were represented in the Congress that had created the bank, but the union was not symmetrically represented in the Maryland legislature. In burdening the bank, Maryland was in effect taxing unrepresented out-of-staters who had financed the federal institution—New Yorkers, Pennsylvanians, and so on, who had no vote in Maryland. If the Revolution and the Declaration of Independence meant anything, surely they stood for the proposition that in America, there should be no taxation without representation.
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Here, as elsewhere, Marshall exemplified not clause-bound literalism, but holistic constitutional interpretation. From start to finish in
McCulloch
, he showed us by example how to read between the lines.

IF STATES MAY NOT OBSTRUCT
a duly authorized federal bank, what about state obstructions of other legitimate federal functions? In particular, what about state obstructions of national political discourse? To answer these questions, we will need to move past
McCulloch’
s specific facts and venture into another legal quadrant altogether. Here, too, we shall see that faithful constitutional interpreters must transcend clause-bound literalism by fixing their eyes on the document as a whole.

A not-entirely-hypothetical hypothetical: Suppose that in 1858, an antislavery congressman from Illinois returned to his district to address his constituents. In vivid but wholly nonviolent, nondefamatory language, our hypothetical congressman proclaimed slavery “a vast moral evil and a monstrous injustice—a hateful and ungodly institution that corrupts the white man, tyrannizes the black man, and mocks the divine order in which all men are created equal.” Our imaginary congressman—let’s call him Lincoln Abraham—went on to opine that voters in every slave state should press their state lawmakers to “act now to put slavery on a path of extinction,” and that Congress should enact federal legislation subsidizing these state reforms. Suppose further that Abraham printed his passionate speech as a campaign pamphlet and personally sent copies of this pamphlet, through private channels, to political allies outside Illinois, including friends and relatives in North Carolina. Finally, let’s suppose that North Carolina then indicted Abraham for the crime of encouraging slave discontent.

History buffs will recognize this fictional case as only a slight twist on what actually happened in the late 1850s. Many slave states criminalized peaceful antislavery or egalitarian expression and tried to shut down core political speech by antislavery leaders, including northern congressmen.
^38
*

But surely the Constitution circa 1858, properly construed, did not allow states to criminalize political discourse between public servants and the voters they served. Our imaginary Representative Abraham’s remarks exemplify a species of speech at the very heart of the American system of government—political opinions communicated by a congressman to his constituents and fellow citizens on the most pressing political issue of the era. No state could bar this sort of speech, or prevent voters from other districts from listening in if they so desired. If a state may not shut down a national bank, neither may a state shut down a national debate about national policy. True, the Constitution as of 1858 did not in any single clause explicitly say that North Carolina could not suppress a political address by an Illinois congressman. But read as a whole and in context, the document certainly implied at least that much.
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For a strict textualist, the First Amendment (which had of course become part of the federal Constitution long before the 1850s) is entirely beside the point. The first word of the First Amendment is “Congress.”
Congress
may make no law abridging freedom of speech or of the press. No words of the First Amendment place any explicit restriction on
states
.

But this hardly means that state legislatures in antebellum America were by negative implication free to run roughshod. As we have seen, arguments from negative implication can sometimes seriously mislead us and point us toward constitutionally outlandish results. It is absurd to think (by negative implication) that the only time that the vice president must recuse himself is when the president is being impeached. It is erroneous to think (by negative implication) that the only proper limits on Congress’s enumerated powers are those expressly and minutely set forth in the terse text. It is unreasonable to think (by negative implication) that the only taxes that states are prohibited from imposing are the ones explicitly banned by the Constitution. Likewise, it is wrong to think that Congress is the only government entity that must respect freedom of speech or of the press.
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Today, almost no well-trained lawyer reads the First Amendment in so
narrow and literalistic a fashion. If a federal judge attempts to impose a gag order on reporters in the courtroom, or if the president tries to muzzle the press in order to prevent embarrassing leaks, lawyers immediately grab hold of the First Amendment, even if Congress is not directly involved and the other branches of the federal government purport to be acting under their own inherent powers. The famous 1971 Pentagon Papers case,
New York Times Co. v. United States
, was decided under the First Amendment, even though the case pivoted not on a statute enacted by Congress but on the unilateral actions of the president—Richard Nixon, who was trying to censor
The New York Times
. Modern lawyers instinctively heed the admonition of the Ninth Amendment, whose language cautions against drawing hasty negative inferences when reading the Bill of Rights.

The First Amendment’s first word, “Congress,” is now read as a synecdoche: The right of free expression applies against all branches of the federal government and rightly so. If the president and federal courts cannot censor citizens even with the backing of a congressional law, it would be odd to think that they can do so without such a law. Limits on the less electorally accountable branches of the federal government follow
a fortiori
from those imposed on Congress.

While it makes good sense to read the First Amendment as guarding against all
federal
abridgments of free speech, it would be far more troubling to construe the amendment as creating rights against states. That amendment was originally designed by Federalists in the First Congress to placate Anti-Federalists anxious about the wide scope of federal powers and eager to protect legitimate states’ rights. Reading the Bill of Rights as giving the federal government (especially federal courts) broad extra powers to limit state governments does somersaults with that original understanding. Madison himself, the main sponsor of the First Amendment, drafted a separate amendment that would have safeguarded the rights of speech and press (and certain other rights) against states; but that proposed amendment failed to clear the Senate, where states’-rights sentiment ran strong.
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