Tuesday, May 18, 2021

A Constitutional Whodunit

Gerard N. Magliocca

I am at Mount Vernon conducting some final research for my Bushrod Washington biography and I came across something new (at least to me) that others find want to examine.

In December 1801, five anonymous essays appeared in the Washington (Georgetown) Federalist newspaper attacking the proposed repeal of the Judiciary Act of 1801, which created the "midnight judges." The essays argued, in part, that the repeal was an unconstitutional assault on an independent judiciary. They were signed "A Friend of the Constitution."

My eyes opened wide when I saw that. Why? Because that was the title of the anonymous essays that John Marshall wrote in 1819 to defend McCulloch v. Maryland. This raises an obvious question--Did the Chief Justice also write the 1801 essays? Another alternative is that his partner in surreptitiously publishing the 1819 essays--Bushrod Washington--was the author of the 1801 essays. An unpublished manuscript at the Mount Vernon library asserts that either Marshall or Bushrod was their author, though without citing any direct evidence. I'll see if I can find any.

UPDATE: The essays are sometimes attributed to William Cranch. I'm trying to see why that is so.


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