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

Richard E. Ellis’s previous works on judicial politics in the early republic and states’-rights ideology during the Jacksonian era have become staples for scholars working in the periods.¹ With his new book, Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic, Ellis demonstrates once again his ability to present a well-balanced yet distinctive point of view on a subject of crucial importance for understanding early America. While Ellis recognizes that McCulloch v. Maryland (1819) “has become the foundational statement for a strong and active central government and the broadening of its powers,” the opinion was also “contrived, inadequate, and misleading in its treatment of many of the key issues involved in the case and, despite occasional assertions to the contrary, almost totally dismissive of the rights of the states” (11, 101).

Ellis’s work details one of the most important decisions in Supreme Court history, which surprisingly has not been the subject of an in-depth study until recently.² McCulloch was the first significant opportunity for the Court to define the scope of congressional power under the Necessary and Proper Clause.³ Ellis’s use of the term aggressive nationalism is connected to the transforming effects of the Market Revolution—a topic about which Ellis has written extensively.⁴ In McCulloch, John Marshall aligned the Court with the “aggressive nationalists” who adhered to the notion that the federal government had the power to implement a program of internal improvements without a constitutional amendment.

In early March 1819, the Court ruled in favor of the constitutionality of the Second Bank of the United States (2BUS) and Maryland’s inability to tax it. In 1818 the Maryland legislature had passed a tax on all unchartered banks operating in the state. But as Ellis reminds his readers, the tax levied by the Maryland legislature was not designed to destroy the local branch, as was the case with laws passed by the legislatures of Ohio, Kentucky, and Tennessee.

Nevertheless, the Baltimore branch of the 2BUS refused to pay the tax. The “central issue” in the dispute was not, according to Ellis, “the constitutionality of the bank but the constitutionality of the state’s tax on the bank” (72). Ellis argues that McCulloch v. Maryland was in reality “an arranged case in which the state played the role of facilitator in order to get a case dealing with the question of state taxation of the branches of the 2BUS before the U.S. Supreme Court as quickly as possible” (6). The legal dispute began in the Baltimore County Court, which unsurprisingly upheld the tax, and was carried to the Court of Appeals of Maryland, where the judgment was sustained.

In chapter 1, Ellis brilliantly chronicles the early history of judicial review and its connection to nationalism. While acknowledging the controversial use of section 25 of the Judiciary Act of 1789 by the U.S. Supreme Court to overturn state court decisions in such cases as Martin v. Hunter’s Lessee (1816), Ellis maintains that the case “did not have a broad impact and only touched on real interests in at best a limited way” (31). It was the creation of the 2BUS that brought the power of judicial review and, most importantly, the idea of a powerful federal government to the forefront of American politics.

Chapter 2 details the formation of the 2BUS, which President James Madison signed into law on April 10, 1816. Ellis does a masterful job in synthesizing the secondary literature on the Bank along with a careful exploration of the William Jones Papers and the American State Finance Papers. Ellis notes that the creation of the 2BUS, unlike its predecessor, “involved the issue of states’ rights and the related question of the right of the federal government to create institutions that would operate...