The Spirit of the Constitution

David S. Schwartz is Professor of Law at the University of Wisconsin Law School. He teaches and writes in the areas of Constitutional Law, Evidence and Civil Procedure. His scholarship includes articles published in the Georgetown, Notre Dame, and University of Pennsylvania law reviews, and he has co-authored two casebooks: Constitutional Law: a Context and Practice Casebook (with Lori A. Ringhand) and An Analytical Approach to Evidence: Text, Problems and Cases (with Allen, Swift, Pardo & Stein).

Introduction: "The Letter and Spirit of the Constitution"

Part I: Defensive Nationalism
Chapter 1: "The Case Now to be Determined": the Elusive Meaning of McCulloch v. Maryland
Chapter 2: "A Question Perpetually Arising": Constitutional Politics and Law, circa 1819
Chapter 3: "Has Congress Power to Incorporate a Bank?": the McCulloch Oral Argument and Opinion
Chapter 4: "As Far as Human Prudence Could Insure": The Retreat from Implied Powers

Part II: Disappearance and Revival
Chapter 5: "The Baneful Influence of this Narrow Construction": McCulloch in the Age of Jackson, 1832-1860
Chapter 6: "The Various Crises of Human Affairs": McCulloch and the Civil War
Chapter 7: "The Government of All": the Rise and Fall of Reconstruction, 1865-1883
Chapter 8: "Acting Directly on the People": Neo-Whig Nationalism, 1868-1888
Chapter 9: "The Painful Duty of this Tribunal": The Emergence of Judicial Supremacy, 1884-1901

Part III: The Canonical Case
Chapter 10: "Some Choice of Means": The Lochner Era and Progressivism
Chapter 11: "Withholding the Most Appropriate Means": The New Deal and Judicial Crisis, 1932-1936
Chapter 12: "It is a Constitution We Are Expounding": the Triumph of the Capable Constitution, 1937-1968
Chapter 13: "A Splendid Bauble": McCulloch in the Long Conservative Court, 1969-2018

Conclusion: "As Long as Our System Shall Exist"