John Marshall's Federalism: A Reply to Professor Gillman

Clinton, Robert

doi:10.1177/106591299404700406

Political Research Quarterly

1994

DOI: 10.1177/106591299404700406

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John Marshall's Federalism: A Reply to Professor Gillman

Robert Clinton¹

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1996

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

Mendelson

1996

Political Research Quarterly

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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.

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

Mendelson

1996

Political Research Quarterly

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More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law

Gillman

1996

Political Research Quarterly

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Recent scholarship calls into question the traditional realist-behavioralist interpretation of the justices of the Fuller Court as motivated by a desire to promote their policy preferences for laissez-faire economics. This essay extends the assault on what might be referred to as the Holmesian para digm of the tum-of-the-century Court by exploring the jurisprudential origins of that Court's decision in the infamous Knight case, in which the justices ruled that Congress had no authority under the commerce clause to regulate production. By demonstrating that the Court's distinction be tween commerce and manufacturing was a commonplace of nineteenth- century constitutional law and not an "activist" innovation, I hope to underscore the advantages of situating Supreme Court decision making in the context of distinctive jurisprudential traditions. Revisiting this earlier commerce clause jurisprudence also sheds light on the contemporary Court's dramatic resurrection of this contentious pre-New Deal tradition in the recent case of U.S. v. Lopez (1995).

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John Marshall's Federalism: A Reply to Professor Gillman

Cited by 2 publications

References 1 publication

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

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

More on the Origins of the Fuller Court's Jurisprudence: Reexamining the Scope of Federal Power Over Commerce and Manufacturing in Nineteenth-Century Constitutional Law

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