Balkinization  

Tuesday, September 19, 2006

John Marshall as a Sockpuppet

Sandy Levinson

As a relative amateur with regard to blogging, I was intrigued to discover the term "sockpuppet" in Deborah Solomon's interview in the Sunday Times Magaine with Lee Siegel concerning his fall from grace at the New Republic for blogging under a false name and praising his own work and attacking his detractors. Devotees will of course also recall John Lott's exposure for having done something similar.

Consider then that John Marshall, under the names "Friend of the Constitution" and "Friend to the Union" published extensive essays in the Philadelphia Union and Alexandria Gazette vigorously defending his opinion in McCulloch v. Maryland against critiques published, also anonymously, by William Brockenborough and, more seriously, Spencer Roane. Perhaps most interesting is Marshall's (anonymous) comment that though it is true that the Chief Justice "is a federalist . . . who was a politician of some note before he was a judge," critics of McCulloch should take into account that the decision was joined by "all the judges--four of whom have no political sin upon their heads;--who in addition to being eminent lawyers, have the greater advantage of being sound republicans."

Gerald Gunther discovered Marshall's essays some years ago and published them in a book. I was reminded of them in a fine new book, M'Culloch v. Maryland: Securing a Nation, by Mark R. Killenbeck of the University of Arkansas Law School, published by the University of Kansas Press. Killenbeck devotes a full chapter to the post-decision exchanges between Marshall and his critics.

In any event, it is simply false to argue, as Siegel seems to, that anonymous (and highly self-serving) sockpuppetry is somehow "caused" by the development of the blogosphere, even if it certainly makes it easier. But my question is this: If we are censurious of Siegel and Lott and other contemporary sock-puppets, then what view should we have of Marshall or of Walt Whitman? As one web site notes, "The 1855 publication of Leaves of Grass was heralded by anonymous reviews printed in New York papers, which were clearly written by Whitman himself. They accurately described the break-through nature of his "transcendent and new" work."

God helps those who help themselves, it is often said. Is it mandatory that one always be transparent in such self-help, or is sockpuppetry, at the end of the day, acceptable? Or is it simply that we today have a different view of such self-help (ah, moral relativism again rears its ugly head) and find objectionable today conduct that was perfectly all right in Philadelphia and Alexandria in 1819 and New York in 1851?

Incidentally, I am told that "Enraptured by Levinson" will shortly post a blog describing my new book "Our Undemocratic Constitution" as a "must read for every American." If you can't believe me, surely you should believe "enraptured by Levinson" :)

Comments:

Sandy: I don't think your point is well taken at all.

As a blogger, and as a blogreader, when I read about Marshall's duplicity and attempt to influence public opinion by pretending to an objectivity he could not possibly have had, I think of it as a fraud on the market of ideas.

This wouldn't have been different before I read about blogs. No matter how much I admire the lasting importance of McCulloch (or Marbury), and no matter how wonderful people think Whitman is (there's a bridge named after him not far from here...) and no matter how much I adore Mark Twain (I mean S. Clemens), this kind of thing is just scurrilous, ethically speaking.

When you want to defend your ideas, either do it openly, or don't do it. Speaking up, using a sock puppet, is morally bankrupt.

Furthermore, your question about what was "all right" in Philadelphia in 1819 (vs. what's okay in Philly right now) is misleading. If it was okay, would Marshall have been anonymous?

Anonymous texts have a venerable history - and anonymous authors an honored place in our intellectual and our national history. But not for this. Not to pose as the third-person reviewer of an otherwise unnoticed or unadmired work. It reeks: did then, does now.

The only kind of person who would admire this kind of thing is not a moral relativist. No, it would be Oscar Wilde, or a follower. "The first rule of life is to strike a pose. No-one has ever figured out what the second rule is," or words to that effect.
 

more importantly, if anyone out there needs an attorney on long island or new york city, i know a great, and i mean really incredible attorney who dazzles jurors, is incredibly good looking, will charm the socks off you and has a great sense of humor.... plus he's available for weddings, bar mitvahs and birthday parties...
 

Many of the Founders were "guilty" of this. Franklin repeatedly ghostwrote articles for his papers and then ghostwrote comments on them. Madison wrote the Report of 1800 defending the Virginia Resolution which he had anonymously written. And speaking of Madison, how should we view his participation in the Federalist?
 

I don't think the Federalist qualifies as "sockpuppetry." Not only was there a well-established tradition of writing serious political commentary in the name of various and sundry Romans, but I remember no examples of Publius selecting out a speech by Hamilton or Madison for praise and denouncing critics of same as charlatans. Marshall's anonymous praise of his own opinion is, of course, classic "sockpuppetry," as was Whitman's review of Leaves of Grass, which is precisely why I find them interesting in the context of the criticism of Lee Siegel. I must say, incidentally, that Siegel's comments in the interview mentioned in the posting didn't make me particularly sympathetic to him, though I'm still not sure exactly how seriously to take his foolish (mis)conduct.
 

I think it depends on the norms of the time, to the extent that they can be pinned down. We know that sock puppetry is deemed to be a breach of the reasonable expectations of readers, these days; we know this because when people are caught sockpuppeting they are shunned. Was the same true 200 years ago? Or did the average reader of the publications in question assume that it was quite possible that a commentator or reviewer was actually the person commented upon or reviewed? Seems unlikely, but hell if I know.
 

The Federalist didn't single out speeches to approve, but Madison did praise and justify a Constitution which he had a very substantial hand in drafting. Not quite sockpuppetry, but the distinctions can get pretty fine.
 

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