Founding Authority: Authority, the Authoritative, and John Marshall's McCulloch

Abstract

Lacking the powers of the “purse or the sword,” the U.S. Supreme Court is particularly dependent upon maintaining “authority” in order to ensure recognition of its constitutional rulings. Such authority allows the Court to operate against the majority and to survive as a political institution despite lacking a basis in popular will. In one understanding of the Court's position, that authority sits outside of politics, and calls upon a pre-existing and accepted relationship in order to navigate the absence of power and force. Linking authority to a pre-existing relationship and a non-political role, the Supreme Court can be seen as countermajoritarian by design. Calling on an authority which sits outside of political life, by necessity it lacks attachment to the political majority of any given era, and instead binds the nation to a constitution which sits above and beyond politics. However a second approach to authority emphasizes not a relationship to a past moment or pre-political relationship but rather the collective recognition of authority. This view of authority looks to Flathman's conception of “the authoritative,” defined in terms of “the web of conventions” that link power and authority, to situate authority within the current moment. Examining a central moment within the development of the U.S. Supreme Court's authority, the case of McCulloch vs. Maryland, this article argues that it is the second view of authority that most readily captures the authority of the Court. Through a close reading of Chief Justice John Marshall's opinion in McCulloch vs. Maryland, the article shows that while appeals to a founding moment were important within that opinion, these appeals can be productively understood as reflective of the authoritative ethos of the early American Republic. Framed in this manner, the opinion sought to generate authority not by a link to the past but through connection to a contingent sense of the authoritative. Crucially, such an approach positions constitutional authority within the contemporary political realm and offers the possibility of a constitutional politics less anchored in a particular historical moment of founding.