John Marshall and the Sugar Trust--A Reply to Professor Gillman

Abstract

In a revisionist effort Howard Gillman finds that Chief Justice Marshall despite his and the Founders' widely recognized concern for national in terests--was in fact responsible for the Knight states-rights disaster in 1895. In my view nothing Marshall said or did supports the revisionist view- indeed much of what he said and did repudiates it. I suggest that dual federalism, the doctrine on which Knight turns, was a concoction of the plantation South to thwart Marshall's and the Founders' well-known nation alism. I suggest further that this concoction was part of the "lost cause" until the 1890s when business lawyers adopted it for their own anti-federal-regulation purposes. The result was Knight.

Lochner Revisionism Revisited

“…All told, their assault has been devastating, rendering the traditional view of Lochner a relic. To be sure, a small core of holdouts continue to defend the old view with a vigor that bespeaks the passionate attachment a long-standing master narrative is wont to retain (Mendelson 1996;Kens 1997Kens , 1995Kens , 1991Clinton 1994aClinton , 1994b. *Z And just as surely, the constitutional history of the early Republic, thanks significantly to the Progressive view of Lochner, remains fixated on the question of the origins of judicial review, on the struggle between courts and legislatures, despite that question's near total lack of salience before the Lochner era (see Rakove 1997).…”