Robbins: Federal power and states’ rights in the current abortion debate |

Robbins: Federal power and states’ rights in the current abortion debate

What’s a 200-year-old Supreme Court case have to do with anything?

Quite a lot, as it turns out.

The current brouhaha surrounding what Alabama, Mississippi, Missouri and other states have stirred up regarding their newly-restrictive abortion laws has kicked the crust off this granddaddy of what, in 1819, was decided precisely 200 years ago. To fully understand the present abortion debate, you’ve got to understand McCulloch v. Maryland.

In a nutshell, McCulloch defined the scope of U.S. congressional legislative power and delimited how it relates to the powers of the various state legislatures. The facts, if not McCulloch’s reach, are pretty simple. 

In 1816, Congress chartered the Second Bank of the United States. In 1818, the State of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. Bickering between the sovereign State of Maryland and the Feds ensued.

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A little history

Let’s pause here for a short historical breath.

The Declaration of Independence launched the American Revolution in 1776. The British general, Charles Cornwallis, surrendered his forces at Yorktown, Virginia, in December 1781 and the war officially came to its conclusion with the Peace of Paris in September 1783. The United States of America became the newbie among the nations of the world.

Other than celebrating its new nationhood, there were things to be done — like figure out exactly how to steer this new ship of independence. 

In 1788 the United States Constitution was ratified. In May, 1790, Rhode Island became the last of the original 13 colonies to adopt the constitution and join the budding United States. In 1789, by acclimation of the Electoral College, George Washington became our first president.

By the time the Second Bank of the United States was chartered, the United States was finding its feet. James Monroe, a Founding Father and last of the Virginia Dynasty, was our fifth president. The United States was just coming into young adulthood and like most young adults, was still finding its way.

Against this historical tapestry, now back to McCulloch.

In refusing to pay the tax, McCulloch was found to have violated Maryland’s state law. Off to appeal the case went. The state court of appeals held that the Second Bank was unconstitutional because the constitution did not provide a textural commitment for the federal government to charter a bank. In other words, as the constitution did not expressly provide for a nationally chartered bank, accordingly to the Maryland appeals court, none was permitted.

In those days, the United Supreme Court numbered seven justices instead of the present nine. Its Chief Justice was the esteemed John Marshall who, most scholars agree, as much as anyone defined the powers of the Court. Among the other justices were the luminary Joseph Story and Bushrod Washington, the first president’s nephew.

The Supremes took up the appeal from Maryland.

A unanimous decision

In a unanimous decision, the court held that Congress did, indeed, have the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers.

What the Marshall Court relied upon was the “Necessary and Proper Clause” (Article 1, Section 8) of the Constitution, which provides that Congress possesses powers not explicitly outlined in the constitution. In writing the opinion for the Court, Marshall defined “necessary” to mean “appropriate and legitimate,” thereby including all methods for furthering those objectives covered by the enumerated powers.

Perhaps most key to the decision, the court held that while the states retained the power of taxation, the constitution and the laws made in pursuance thereof, are supreme and cannot be controlled by the states. 

In other words, so long as in furtherance of constitutional powers, the prerogatives of Congress in making and enforcing the laws are preeminent. States must not, and may not, defy federal law.

One other thing before summing up.

As I have detailed in prior columns, the machine of American law runs on the lubricant of precedent. What has come before will come again unless there is some new substantive wrinkle to consider. A “thing” decided will be left to lie unless there is some shiny new issue for the Court to consider.

Taking into consideration the fraternal twins of preeminence and precedent, what Alabama and the other states have done must and will be examined beneath the lens of federal versus state power. And that is where the rubber of this teed-up conflict will meet the road of judicial consideration.

Political considerations aside — and one wonders in this heated environment of ours if that is even a possibility — when the Alabama, Missouri or the other abortion law cases wind their ways to the Supremes, the litmus test of their survivability should be measured against McCulloch and its progeny and considerations of judicial precedent. 

How the judicial gavel will fall remains to be seen. It should, at the least, be interesting to see what path this latest legal dustup takes. 

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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