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Book Review
| Richard E. Ellis, Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic, New York: Oxford University Press, 2007. Pp. 265. $29.95 (ISBN 978-0-19-532356-6).
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| Given its importance, it is remarkable that only two book-length studies of M'Culloch v. Maryland (1819) have been written. The first, my own M'Culloch v. Maryland: Securing a Nation, was published in August, 2006, almost 190 years after the case was decided. Now Richard Ellis has completed his work, one I wish I had had in hand when writing mine. Aggressive Nationalism is, like each of Ellis's prior books, a thoughtful and impressive piece of scholarship. Few individuals have his grasp of the details and nuances of the era within which some of the most important political and legal disputes in our history played out, and that mastery is, by and large, evident here. |
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Ellis declares that his goal is to examine the case "from the point of view of the losing side," a necessary perspective, as "it deal[s] with relevant and important issues, many of which are crucial to understanding the case" (4). In particular, he criticizes John Marshall for failing to account for "the essentially privately controlled and profit-making characteristics of the [Second] bank," for ignoring "the relationship of [it] and its branches to the state governments," and for refusing to discuss the difference between a punitive state tax and one designed to raise revenue, the category to which he consigns Maryland's levy (4–5). |
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Marshall did not, admittedly, discuss the private nature of the Bank in M'Culloch, an issue subsequently addressed in Osborn v. Ohio (1824), where he declared that the Second Bank was in practical effect, if not actual reality, "a public corporation, created for public and national purposes." The branch office issue was important, albeit not unique. The First Bank also established branches, and the relationship between them and the states within which they operated had been controversial. Indeed, while Ellis does not discuss this, problems caused by the Baltimore branch of the First Bank played an important role in the inability of that institution to secure an extension of its charter in 1811. That said, neither of these issues bears directly on the legal question that lay at the heart of the case: could Congress exercise implied powers? That was the point to which Marshall and the parties devoted the bulk of their attention, and Marshall's reaffirmation of that principle was the necessary precondition for both the creation of a corporation, public or private, and the ability of that entity to then create branches. |
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Ellis's third point is the most troubling. Obviously, invalidation of a "simple" state revenue measure would have been a significant limitation on state sovereignty and a matter of great concern. Of course, if "the power to tax is the power to destroy" it is unlikely that the nature of the tax actually matters. A tax, in this respect, is a tax, and its potential for interfering with the ability of the Bank to conduct its affairs no less troubling. More to the point, the validity of the criticism depends on Ellis's ability to establish that the Maryland tax was in fact "merely" a revenue measure. |
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Ellis promises a "close examination of the Maryland law" (68) but does not actually compare the Bank tax and the one levied on state banks, preferring to simply quote Hezekiah Niles to the effect that "all the banks in the city are in like manner taxed" (68). Perhaps. The local bank tax rate was .2% on its stock, with the banks collectively able to secure relief with a one time payment of $200,000 for the twenty-year licensing period. The rate for the Bank was arguably much higher (the comparison is not exact), 1 to 2% on notes issued, with relief costing $15,000 per year, or $300,000 over the same period. The "manner" in which the two taxes operated may have been the same. The treatment afforded was not. The Maryland tax was not as great as that imposed by Ohio, Kentucky, or Tennessee, measures that were clearly punitive. But its status as an innocent revenue measure is not yet clear. Further investigation is in order. |
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Of course, I did not discuss this in my book either, and Ellis induced me to undertake additional research. That is exactly what high-quality scholarship does: it opens new vistas and provokes us to think more deeply about issues and events. Time and further work will tell us if Ellis's analysis merits his conclusion that M'Culloch and the principles for which it now stands have "an appeal and legitimacy that they did not have when the decision was handed down in 1819" (218) and that "it has mattered not that they were applied to the wrong case" (216). In the interim, those of us interested in the period, and the case, owe him a considerable debt of gratitude. |
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| Mark R. Killenbeck
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| University of Arkansas School of Law |
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