Book Review: Aggressive Nationalism

The Virginia Magazine of History and Biography

Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic * Richard E. Ellis * New York: Oxford University Press, 2007 * x, 266 pp. * $29.95

The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court * Cliff Sloan and David McKean * New York: Public Affairs Books, 2009 * xviii, 226 pp. * $26.95

No cases were more important in establishing John Marshall's reputation as the "great chief justice" than Marbury v. Madison (1803) and McCulloch v. Maryland (1819). In Marbury, Marshall declared a section of an act of Congress to be repugnant to the Constitution while denying the Supreme Court's jurisdiction to order Secretary of State James Madison to deliver William Marbury's commission as a justice of the peace for the District of Columbia. This was the Supreme Court's first exercise of what came to be called judicial review. In McCulloch, Marshall upheld Congress's power to charter a national bank and denied Maryland's right to tax the bank. His accompanying opinion eloquently set forth the doctrines of national supremacy and implied powers while offering a persuasive explanation of the nature of the Constitution and the principles for expounding it.

Historians tend to regard McCulloch as the more consequential case, though lawyers give the nod to Marbury, a generalization that applies to the authors of these books. Accustomed to thinking in terms of precedents, lawyers revere Marbury as the case that established judicial review, as if that practice emerged full-blown at a single moment in time. "With one judgment," write Sloan (a lawyer-journalist) and McKean (a political biographer and strategist), "Marshall would chisel judicial review into the American system" (p. xvii). Historians, by contrast, view Marbury as subsidiary to a broader historical process in which judicial review would have come into being with or without Marshall's 1 803 decision. Richard E. Ellis speaks for historians who rank McCulloch higher on the scale of significance because it was central to the vexing debate over federalism that animated the nation's history from the Revolution to the Civil War.

Although not professional historians, Sloan and McKean are skillful writers who tell a good story intended for a general authence. The Great Decision is a highly readable account of the new nation's critical transition from a Federalist to a Republican administration. The case of the mandamus (the writ sought by Marbury) is placed at the center of the broader political and legal drama ushered in by the electoral victory of the Republicans in 1800 and the "midnight" judicial appointments made by the lame duck Federalist Congress. The authors are most at home narrating the courtroom proceedings - the preliminary motion for mandamus, the hearing of testimony, the arguments of counsel, and the decision itself. They enliven the sometimes dry details of a legal case with entertaining anecdotes, gleaned from newspapers, of life in the raw and unfinished Federal City.

The book, however, is marred by errors that betray the authors' lack of firm grounding in the period. These are perhaps trivial in themselves but disheartening in their accumulation. To cite a few examples: John Dickinson of Delaware is Jefferson's "fellow Virginian" (pp. 70-71); Archibald Stuart of Staun ton is "Archibald Staun ton" (p. 78); the Haitian revolutionary Toussaint L'Ouverture is "Alain Toussaint" (p. 80); and members of the Lee and Mason families are mistaken for other Lees and Masons (pp. 10, 56). A more substantive error is calling the new tribunals created in 1801 "appellate courts" (pp. 54-55, 58).

Sloan and McKean celebrate Marbury as a "national treasure," worthy of being displayed and venerated alongside Magna Carta, the Declaration of Independence, and the Constitution in the Charters of Freedom hall in the National Archives (p. xi). They seem to be unaware that the Marbury they praise - the decision that in a single stroke established judicial review, transformed the federal judiciary into a fully coequal branch of government, and made the Supreme Court supreme in expounding the Constitution - is largely an invention of the late nineteenth and early twentieth centuries. For nearly a century after 1803, Marbury was not cited either by the Supreme Court or constitutional law treatises as a precedent for judicial review. Only after a campaign by conservatives to legitimize an expansive conception of judicial review to strike down obnoxious social and economic legislation did Marbury become the great case.

Where Sloan and McKean unreservedly embrace the myth of Marbury, Richard Ellis seeks to demythologize McCulloch by recovering the controversial context in which the case arose. Readily conceding the opinion's standing as a masterly statement of constitutional nationalism, Ellis recognizes that McCulloch, in a way similar to Marbury, largely acquired its reputation as a cornerstone of American constitutional law when subsequently cited to justify the great expansion of federal power that occurred during the New Deal. "The original significance of an event and its results are often two different things," he writes (p. 11).

Over a period of forty years, Ellis has proved to be a savvy historian of the early republic, notably through his ongoing efforts to explain the transition from Jeffersonian to Jacksonian democracy. Aggressive Nationalism follows the model of his earlier books, combining chapters of broad national history with those focused on developments in selected states. Ellis is particularly adept at bringing out the interplay of politics, law, and economics in his account of how the bank case played out in various and distinctive ways in different parts of the country.

McCulloch brought into sharp focus the perennial debate over federalism. This debate, notes Ellis, in turn reflected a broader division arising from the "market revolution" that ushered in a nascent capitalist economy characterized by a proliferation of banks and a "boom bust" business cycle. To a large extent the controversy over the Second Bank of the United States in the 1 82Os was a continuation of that begun in the 179Os concerning Alexander Hamilton's financial program. Proponents of states' rights sounded the alarm against political and economic centralization as creating a privileged commercial and financial class whose interests were inimical to those of the great body of the people.

Although this debate has ultimately been resolved in favor of national power and economic integration, Ellis is acutely conscious that history too often adopts the winners point of view. He is sympathetic to the states' rights argument, finding much of value in its critique of the national bank and of the Marshall Court. Ellis is most successful in making intelligible fears of consolidation. He does this by explaining why so many at the time viewed the national bank not only as a symbol but also as the very instrument of an aggressive nationalism that ran roughshod over legitimate state fiscal policies.

In resurrecting states' rights as a serious alternative to Marshall Court nationalism, Ellis is inclined to find fault with Marshall, to attribute to him less than laudable motives. He states, for example, that Marshall collaborated behind the scenes with the bank's proponents to bring the case to the Supreme Court and that the chief justice was being "disingenuous" in saying the court could not avoid a case that was thrust upon it (p. 123). But he misreads the only piece of evidence he cites, a writ of error in which Marshall's name was inserted by a clerk. Contrary to Ellis's insinuations, the case proceeded regularly, if expeditiously, through the Maryland courts to the Supreme Court without any need for Marshall's intervention. Valuable as his perspective is in presenting a corrective to orthodox nationalist history, Ellis perhaps does not appreciate the degree to which Marshall and his brethren perceived themselves as playing defense against an aggressive states' rights that remorselessly encroached upon the sphere of federal power.

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