Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic

By Richard E. Ellis | Go to book overview

Unquestionably, much of the praise for the decision, if extravagant, is merited. For it is brilliantly argued, far reaching in its implications, and unusually eloquent. Among other things, it provides an enduring nationalist interpretation of the origins and nature of the Constitution and the union and a broad definition of the necessary and proper clause (Article I, section 8), which has laid the foundation for the living Constitution, and with it the means for an almost infinite increase in the powers of the federal government. It also contains an explicit narrowing of the meaning of the Tenth Amendment, the bulwark of states’ rights thought. Major excerpts from Chief Justice John Marshall’s decision in McCulloch v. Maryland are included in every casebook on constitutional law, and its findings—the constitutionality of the Bank of the United States and the prohibition it imposed on the states against taxing it and its branches— are described in just about every textbook on American history.

It is surprising, therefore, that no in-depth study of McCulloch v. Maryland has been published before now. What treatments exist of the origins of the case and the constitutional issues involved in it are to be found in various general histories of the U.S. Supreme Court and in biographies of John Marshall.2 Unfortunately, these analyses of the case tend to be done almost exclusively from the vantage point of Chief Justice John Marshall’s decision. No attempt is made to examine the case from the point of view of the losing side, which is to be regretted because it dealt with relevant and important issues, many of which are crucial to understanding the case.3 Indeed, the chief justice chose not to consider many of these arguments in his decision, probably because they would have seriously undercut his own argument. In fact, what Marshall mainly did in his famous decision was to reiterate the arguments of the attorneys for the Second Bank of the United States (2BUS). Modern-day constitutional scholars who have treated the case have also tended to ignore a number of astute treatments by financial and banking historians of the early nineteenth century, which shed useful light on the economic issues of the time, for McCulloch v. Maryland is, after all, a case that was profoundly influenced by the banking problems that existed in the early nineteenth century.4

Three arguments in particular against the 2BUS were ignored by Marshall. The first had to do with the essentially privately controlled

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Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgments vii
  • Contents ix
  • Introduction 3
  • One- The U.S. Supreme Court versus the States 13
  • Two- The Second Bank of the United States 33
  • Three- The States versus the Second Bank of the United States 61
  • Four- McCulloch V. Maryland 77
  • Five- Virginia’s Response to McCulloch V. Maryland 111
  • Six- Ohio and the Bank of the United States 143
  • Seven- Ohio and Georgia before the U.S. Supreme Court 169
  • Eight- Coda 193
  • Notes 219
  • Index 257
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