Wednesday, July 11, 2007

Baker reviews Killenbeck, M'Culloch v. Maryland: Securing a Nation

Mark R. Killenbeck, M'Culloch v. Maryland: Securing a Nation (University Press of Kansas, 2006) is reviewed for H-Law by H. Robert Baker, Georgia State University. Baker begins:
Along with John F. A. Sanford (of Dred Scott fame), James W. McCulloh must stand as the most famous man to lend his misspelled name to the Supreme Court canon. His case, McCulloch v. Maryland, put the Supreme Court's stamp of approval upon Congress's power to incorporate banks and on a Hamiltonian interpretation of the Constitution. The import of the decision was far greater than this, and it is doubtless one of Chief Justice John Marshall's gems. In his new survey of the case, Mark R. Killenbeck's examines the particulars of the opinion of the court and the storied newspaper exchange between Marshall and Spencer Roane (pseudonymous, of course) over merits of the decision. He also reveals the human side of the story in the shady dealings of James McCulloh as cashier of the Baltimore branch of the Bank of the United States and his quest for personal redemption.
As a survey designed to introduce readers to the case, this book has significant strengths. Killenbeck grounds his study in the familiar story of the constitutional controversy over the creation of the national bank in 1791. Hamilton and Jefferson's arguments are carefully reproduced, as are the debates in Congress. The narrative then follows the bank's life and eventual death in1811, and the creation of the second Bank of the United States in 1816.
This is, of course, the standard narrative leading up to the Supreme Court's handling of McCulloch v. Maryland. More impressively, Killenbeck takes seriously the range of constitutional arguments presented outside the Court. He gives ample time to the 1794 Senate debate of a constitutional amendment limiting the power of Congress to incorporate banks. He links this, albeit indirectly, with the controversial Alien and Sedition Acts, the Virginia and Kentucky resolutions, and the constitutional crisis they engendered before the election of 1800. This is a welcome contextualization of the bank controversy as one battle among many in a long constitutional war, and Killenbeck does a great service in recreating the political climate of the early republic.
He also demystifies the Supreme Court's role in the process. The bank controversy was not a three-decade dispute seeking judicial resolution, but an ongoing constitutional disagreement that involved every branch of the government. Implicit in Killenbeck's narrative is the understanding that the Supreme Court was in no position to weigh in authoritatively on the subject during the 1790s. Things were different by 1819, but only because of the conscious workings of the Court's chief justice since 1801, John Marshall. In a valuable chapter, Killenbeck describes Marshall's efforts to transform the Supreme Court into a coequal branch of government that might speak with some authority on serious constitutional controversies. Coverage is given to Marshall's strong opinions in Marbury v. Madison (1803), Fletcher v. Peck (1810), as well as the trio of decisions of which McCulloch (1819) was a part(along with Dartmouth College and Sturges v. Crowninshield, both decided in1819). But this is not just intellectual history. Readers will encounter the boardinghouse in which all justices lived, the galleys of the Supreme Court packed to hear oral arguments by Daniel Webster, and snippets of the Washington social scene. These elements are not added just to color to the narrative. As Killenbeck makes clear, such matters impinged directly on Marshall's ability to mold the Court to his liking and upon the country's reception of the Court's decisions.
To continue reading (recommened -- more to come), click here.