Monday, April 09, 2007


Mark Graber

The University of Kansas Press has just published Gerard Magliocca’s, Andrew Jackson and the Constitution, a wonderful study of the constitutional politics of Jacksonian America. In less than 130 pages of text, Professor Magliocca highlights the distinctive constitutional commitments of both Jacksonians and Whigs. Breaking with past traditions which see those coalitions as largely playing slight variations on constitutional themes introduced by John Marshall and James Madison, Andrew Jackson details the ways in which the Jacksonian constitutional universe marked a sharp break with past practice. The book resurrects long lost struggles over presidential power and the veto that are both interesting for historical sake and might inform present debates over how the different branches of national government represent the American people. Jackson was our first imperial president and fashioned precedents that still structure separation of powers struggles in the United States. Persons seeking to understand President Bush must understand Andrew Jackson, and this book is the place to start.

Jacksonians, Magliocca points out, rejected both McCulloch v. Maryland and Worcester v. Georgia as constitutional precedents. For all practical purposes, McCulloch was not good law from 1832 to 1860 (Lincoln conceded this in his debates with Douglas). Jacksonian presidents consistently rejected on constitutional grounds bills incorporating a national bank and Magliocca presents strong evidence that the Taney Court would have at least partly overruled McCulloch had those bills become law. As important, Andrew Jackson highlights the centrality of Worcester to the constitutional struggles of antebellum America. Magliocca details how the antislavery turn to immediacy was inspired by the treatment of the Cherokees during the 1830s and that one central purpose of the 14th Amendment was to prevent a repeat of the Trail of Tears. He further explains how Marshall’s understanding of national sovereignty and the rights of tribal members were core commitments of the National Republic regime and would become core commitments of the Reconstruction Republican regime as well. There may be a bit of a romance here, but John Bingham’s repeated references to both Worcester and the fate of the Cherokees during his 1860 speeches make clear that the revival of Worcester was (almost) as central to the Republican constitutional universe as the repudiation of Dred Scott. The latter, Magliocca points out, was (almost) as much an expression of Jacksonian constitutional commitments as an expression of proslavery constitutionalism.

Jacksonian constitutionalism has been under appreciated largely because many crucial constitutional moments took place outside of courts and those moments that took place in courts cannot be understood when separated from that broader constitutional context. Andrew Jackson promises to revive this important period of American constitutional development in ways that should be interesting and important to all students of American constitutionalism.


Interesting. I do appreciate these book summaries.

"There may be a bit of a romance here"

There's definately love in the air. Yes, Marshall ruled for the Cherokee in Worcester, but he also invented the un-Constitutional fiction of Indian tribes as "domestic dependent nations," thus dooming them to second-class legal status in relations with the Federal gov't and paving the way for the Unconstitutional "end of the treaty period" in 1877 and the disastrous termination policies of the 1950's.

Post a Comment

Older Posts
Newer Posts