David S. Schwartz, McCulloch v. Maryland and the Incoherence of Enumerationism, 19 Geo. J.L. & Pub. Pol'y 25 (2021).
Abstract
The theory and jurisprudence of American federalism remains a muddle.
The Supreme Court has never managed to settle three intertwined jurisprudential questions of federalism: (1) Can an effectual national government with implied powers be meaningfully limited to a set of enumerated powers? (2) Can the Tenth Amendment's concept of reserved state powers be presumptive, or meaningfully specified under a system of implied national powers? (3) Can the state governments meaningfully be called "sovereign" in either of the two distinct senses usually meant? The ideology of "enumerationism"-that the Constitution creates a national government of limited enumerated powers-answers these questions "yes."
But McCulloch v. Maryland answered these questions "no" and is therefore
at odds with enumerationism. A limiting enumeration is incompatible with
McCulloch's conception of a grant of implied powers necessary for an effective national government that can address national problems without reliance on the states. McCulloch clearly rejected the various versions of implied powers that were aimed at preserving a limiting enumeration. Moreover, as McCulloch makes clear, a system of implied national powers cannot be reconciled with "reserved" state powers having any definable content. Implied powers can grow and change with new circumstances and new legislative ideas, and therefore cannot be specified in advance, making it impossible to specify a "reserve" of state powers that excludes federal regulation. Finally, McCulloch recognized that federal supremacy necessarily makes the states "subordinate governments" that lack the power to block prima facie federal powers, whether express or implied. McCulloch thereby rejected the idea that state sovereignty is either a
power to resist federal implied powers or a mirror image of a limiting enumeration of federal power.
