This essay examines the underappreciated element of statutory jurisdiction in McCulloch v. Maryland, Cohens v. Virginia, and Osborn v. Bank of the United States. One objective is to identify more precisely the Marshall Court’s jurisdictional innovations in these three foundational decisions. A close look at the question of statutory jurisdiction in the trio of McCulloch, Cohens, and Osborn reveals a kind of constitutional magnetism at work. In constitutional avoidance, a court adopts an interpretation in order to stay away from a constitutional problem. In contrast, the Marshall Court in Cohens and Osborn expanded the jurisdictional statutes at issue in order to conform to a constitutional vision of the Supreme Court’s role as set forth in McCulloch. The jurisdictional maneuvering in that case likely brought to the Court’s attention the statutory jurisdictional gaps that the Court filled by construction in Cohens and Osborn. Part I discusses McCulloch v. Maryland with particular attention to its jurisdictional basis. Part II addresses the opposition to McCulloch in Virginia and the Supreme Court’s answer in Cohens v. Virginia. Part III turns to Ohio’s opposition and the Supreme Court’s response in Osborn v. Bank of the United States. A concluding section offers some meditations on McCulloch and the maintenance of constitutional orthodoxy.
Kevin C. Walsh, Statutory Jurisdiction and Constitutional Orthodoxy in McCulloch, Cohens, and Osborn, 19 GEO. J. L. & PUB. POL’Y 73 (2021).