by Richard E. Ellis. New York: Oxford University Press, 2007. 280pp. Hardback. $29.95/£17.99. ISBN: 9780195323566.Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.
pp.981-984
Richard E. Ellis, a history professor at the State University of New York at Buffalo, justifies his book based on the importance of the topic and the dearth of similar texts. He holds that the Supreme Court’s decision in MCCULLOCH v. MARYLAND “provides an enduring nationalist interpretation of the origins and nature of the Constitution . . . [i]t also contains an explicit narrowing of the meaning of the Tenth Amendment, the bulwark of states’ rights thought” (p.4). Ellis claims that no in-depth study of the latter case or its ramifications for the losers exists. He taps US Supreme Court cases, archival papers, and secondary sources to accomplish that task.
In the Introduction, Ellis identifies positive and negative features of the economic changes which swept the United States following the War of 1812. While the market revolution ushered in development of a national economy, an increase in the standard of living, and the development of a middle class, it also contributed to the expansion of slavery and fostered unequal distribution of wealth. Americans reacted inconsistently to these conditions as the economy alternated between boom and bust.
Chapter 1 probes the maturation of the US Supreme Court prior to 1816. Though a source of “political and ideological controversy” since its founding, the Supreme Court “spearheaded the movement toward nationalism,” according to Ellis (p.15). As early as the WARE v. HYLTON ruling in 1796, the Court struck down state laws which impeded payment of debts to British creditors by Americans. Though the presidential administration of Thomas Jefferson took a hostile view of the federal judiciary, the ensuing fifteen years saw the Court enter its most nationalist phase. This trend was due in part to the leadership of Supreme Court Chief Justice John Marshall and to expanded use of Section 25 of the Judiciary Act of 1789, which permitted the Court to overturn state laws inconsistent with the Constitution or federal treaties. Chapter 2 reviews the history of the Bank of the United States from its establishment in 1791 to its re-chartering in 1816. Ellis observes that President George Washington supported the constitutionality of the First Bank of the United States on the advice of his Treasury Secretary, Alexander Hamilton. The First Bank of the United States operated as a conservative lending institution. Although its service was mainly used by the financial and mercantile community, the national bank “helped to keep the more disreputable banks in check by refusing to accept their notes or by sharply discounting [*982] their value” (p.37). However, states’ rights advocates and local banking interests successfully fought against the First Bank of the United States, and its charter expired in 1811. Problems with fiscal policy during the War of 1812 together with the appointment of a new Secretary of Treasury led the James Madison administration to support creation of the Second Bank of the United States, which was approved by law in April 1816. Several criticisms of the Second Bank of the United States soon surfaced, including the negative view of the institution’s first president and board of directors, the view that the national bank was beyond the control of states and local communities, and the perception that the bank failed to obtain an adequate amount of specie for purchase of its stock.
Chapter 3 details the circumstances which led to judicial scrutiny of the Second Bank of the United States and why Maryland ended up as one of the primary litigants in the case. Fair or unfair, the national bank was blamed for the Panic of 1819, which featured “economic stagflation, deflation, unemployment, ruin, and widespread distress and misery” (p.62). Further, Congress appointed a special committee in November 1819 to investigate the operation of the Second National Bank. But court invention into the controversy was caused by the decision by several states to tax branches of the national bank which operated within their borders. Maryland’s case against the Second National Bank was selected because the state was one of the first to tax it, because Maryland was willing to have the case decided as soon as possible at the federal level, and because Maryland recognized the Supreme Court’s jurisdiction in the case. In Chapter 4, the oral arguments in the McCulloch v. Maryland case are examined, and the content of Chief Justice John Marshall’s opinion on behalf of a unanimous seven-justice Supreme Court is assessed. While Marshall’s opinion clearly backed Congress’ authority to create the national bank and rejected the premise that states have a right to tax its branches, Ellis holds that the inadequacy of the ruling in addressing vital questions associated with the controversy and the lukewarm acceptance of the decision by the James Monroe administration precipitated protests and further legal challenges.
Chapters 5 through 7 delineate the manner by which three states challenged the MCCULLOCH v. MARYLAND ruling. In Virginia, state banks did well during the War of 1812 but not during the business expansion period which followed. After MCCULLOCH, Virginians Judge William Brockenbrough and Spencer Roane wrote essays opposing the decision in the Richmond Enquirer under the pseudonyms “Amphictyon” and “Hampden,” respectively. Supreme Court Chief Justice John Marshall countered with articles of his own in the Philadelphia Union and Gazette and Alexandria Daily Advertiser newspapers. In Ohio, the legislature passed a series of states’ rights resolutions aimed at both forcing the Second National Bank to withdraw branches there and at establishing the right to tax the bank. A legal case ensued when, just six months after the March 1819 MCCULLOCH decision, Ohio officials forcibly removed over $120,000 in bank specie and notes from the Chillicothe branch [*983] of the national bank as a tax. Five years later, the Supreme Court affirmed a federal circuit court ruling against Ohio in OSBORN ET AL. v. BANK OF THE UNITED STATES with just one dissenting vote. In Georgia, a dispute between the Savannah branch of the Second National Bank and state-chartered banks led to a law which prevented the use of state courts against local banks. After the national bank sued over Georgia’s refusal to turn over payments, a federal circuit court split on the issue. The Supreme Court’s 1824 decision in BANK OF THE UNITED STATES v. PLANTERS BANK OF GEORGIA “narrowed the meaning of the Eleventh Amendment by rejecting the Planters’ Bank claim of sovereign immunity” (p.190).
Chapter 8 concludes the text and covers three distinct areas. First, Ellis notes how several other states reacted to MCCULLOCH. Although serious hostility to the Supreme Court’s ruling ensued in Pennsylvania, Kentucky, and North Carolina, “in the end their opposition never went beyond failed resolutions and proposals in their legislatures and a spate of bitter denunciations in speeches, the press, and private letters” (p.194). Second, Ellis recounts the epochal battle between the Andrew Jackson administration and the national bank. President Jackson vetoed a bill re-chartering the bank in July 1832, effectively turning the controversy into a campaign issue. Jackson’s reelection ensured that no more government funds would be deposited in the national bank. That, together with the Panic of 1837, led the bank to cease business in 1841. Third, Ellis discusses the ramifications of MCCULLOCH v. MARYLAND for contemporary America. The Federal Reserve Bank was created in 1913, though unlike the previous national banks it is not under private control and does not sell stock. Further, “Marshall’s attempt to limit the meaning of the Eleventh Amendment by limiting it only to states if they were part of the record has also been overturned” (p.215). Finally, Ellis opines that the pendulum of power between the national government and states’ rights has swung in the latter direction on the Supreme Court, especially during the tenure of Chief Justices Warren Burger and William Rehnquist.
Ellis’s contention that his book is the first comprehensive assessment of all facets of the McCulloch v. Maryland case may be accurate. For the most part, pre-21st century texts covered the case as part of a chapter or section on John Marshall’s leadership, such as in Chief Justice William Rehnquist’s 1987 tome on the history of the high court. Starting in 2001, a series of books were published which highlight the case singularly, but without detailed post-ruling reactions. These include R. Kent Newmyer’s 2001 text, a 2004 book by Bonnie Pettifor and Charles E. Petit, and 2007 books by Susan Dudley Gold and Samuel Willard Crompton, respectively. Ellis’ book is significantly longer and contains more diverse sources than all of the aforementioned offerings released in the current decade.
The Ellis text offers insightful analysis of how individual states fared before, during, and after the national bank controversy. It is apparent that there were different degrees of opposition to the Supreme Court’s ruling in MCCULLOCH among states and between divergent factions within states, [*984] which was conditioned by existing political and economic circumstances. The book’s organization could have been improved by meshing the first section of the final chapter into the previous chapter, so that the material on state reactions could be presented together rather than spread out over four chapters. As convincing as the author is in the portrayal of the Jackson administration’s fight against the national bank, he forgets to identify the 1834 protest message released by President Jackson on the issue. That message came in response to a US Senate resolution condemning the administration’s actions.
Though Ellis did not predict the financial crisis currently facing the United States and the rest of the world, it is apparent that the federal government supersedes state institutions in responding to such a dilemma. That may force the Supreme Court to push the pendulum back toward national authority, further ensuring the legacy of both MCCULLOCH and the chief justice who penned the unanimous opinion in the case.
REFERENCES:
Crompton, Samuel Willard. 2007. McCULLOCH v. MARYLAND: IMPLIED POWERS OF THE FEDERAL GOVERNMENT. New York: Chelsea House Publications.
Gold, Susan Dudley. 2007. McCULLOCH v. MARYLAND: STATE v. FEDERAL POWER. New York: Benchmark Books.
Newmyer, R. Kent. 2001. McCULLOCH v. MARYLAND. Baton Rouge: Louisiana State University Press.
Pettifor, Bonnie, and Charles E. Petit. 2004. McCULLOCH v. MARYLAND: WHEN STATE AND FEDERAL POWERS CONFLICT. Berkeley Heights, NJ: Enslow Publishers.
Rehnquist, William. 1987. THE SUPREME COURT: HOW IT WAS, HOW IT IS. New York: William Morrow and Company.
CASE REFERENCES:
BANK OF THE UNITED STATES v. PLANTERS BANK OF GEORGIA, 9 Wheat. 910 (1824).
MCCULLOCH v. MARYLAND, 4 Wheat 316 (1819).
OSBORN v. BANK OF THE UNITED STATES, 9 Wheat. 738 (1824).
WARE v. HYLTON, 3 Dall. 199 (1796).
© Copyright 2008 by the author, Samuel B. Hoff.
 Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic
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