The Expanding Universe of McCulloch’s Known Unknowns
In this essay, I argue that over two hundred years after McCulloch v. Maryland (1819) was decided, we actually have more unanswered questions about the case than ever before. I open the essay by presenting the conventional universe of McCulloch’s “known unknowns;” this list includes, but is surely not limited to, the question of why Chief Justice Marshall construed congressional power as broadly as he did in the case. I then explain why this conventional universe is too small. I draw heavily here upon my recent book, Reconstructing the National Bank Controversy (Chicago, 2018), which highlights the centrality of the Coinage Clause to the revival of the Bank of the United States in 1816. The heretofore unappreciated salience of this provision should lead us to ask, among other things, why Marshall and his peers proceeded to ignore it altogether in deciding McCulloch. I close the essay with an effort to catalogue an expanded universe of McCulloch’s “known unknowns,” both as a descriptive exercise and as a guide for future scholars of the case.
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