by Gerard N. Magliocca. Lawrence, KS: University Press of Kansas, 2007. 216pp. Cloth. $29.95. ISBN: 9780700615094.
Reviewed by Daniel Hoffman, Department of Social Sciences, Johnson C. Smith University. Email: dhoffman [at] jcsu.edu.
Gerard Magliocca’s book is a fascinating, if depressing narration of the Jacksonian movement’s constitutional agenda, strategies and tactics. While many of the themes and episodes are pretty familiar, Magliocca interrelates them in thoughtful and interesting ways.
Highlights of the narrative can be briefly sketched as follows. After winning the presidency in 1828, Jacksonians initiated the Indian Removal Act of 1830, and the president vetoed a number of internal improvement bills passed with bipartisan support. The Court responded to the Cherokee removal first with a confrontation-avoiding ruling in CHEROKEE NATION v. GEORGIA and later with a “preemptive,” egalitarian one in WORCESTER v. GEORGIA. Yet the Court recessed without taking any steps to secure enforcement of its decision. Encouraged, Jackson proceeded to veto the 1832 Bank bill. The ensuing election of that year yielded a broad Jacksonian triumph, lasting until 1840. Jackson sought no constitutional amendments, but packed the courts with loyal Democrats for whom precedents like M’CULLOCH v. MARYLAND and WORCESTER v. GEORGIA had no legitimacy. The Taney Court never cited either case as an authority.
Magliocca attributes the Whig victory of 1840 to another financial panic and new charges of corruption and arrogance in Washington. But the president’s death deprived the Whigs of the fruits of their victory, because Vice-President Tyler was a Democrat chosen to balance Harrison’s ticket. Ironically, his veto of the Whigs’ Bank bill deprived the Taney Court of a chance to overrule M’CULLOCH. But Democratic wins in subsequent elections demoralized and marginalized the Whigs, opening the door for the advent of a new opposition movement. According to Magliocca, the Cherokee removal led directly to the flourishing of abolitionism and to the eventual Republican rise of the 1850s. The Court responded with the “preemptive” DRED SCOTT decision, which in turn, he asserts, propelled Lincoln’s 1860 victory. Ultimately, Magliocca holds, the Fourteenth Amendment marked a deliberate restoration of the guiding principles of M’CULLOCH v. MARYLAND and WORCESTER v. GEORGIA.
One particular strength of this book is the presentation of Jacksonian constitutional stands, especially on federalism, Indian removal and slavery, as a coherent ideological package. All three stands favored the agenda of newly enfranchised southern and western voters, who were unhappy with the national government on several grounds. Their grievances included the financial panic of 1819, in which the National [*417] Bank played a conspicuous pro-creditor role; multiple disclosures of Washington corruption; and the Adams-Clay deal by which the House of Representatives gave Adams the presidency in 1824 after Jackson won a plurality in the electoral college.
Another strength is the clear recognition that constitutional development involves not just the judiciary but all three branches of government, working with and against each other according to shifts in party strength that flow from biennial elections, judicial appointments, and sometimes from sheer accidents such as the death of a president. Courts variously choose between simply upholding the status quo, or reaching beyond the narrow question presented in order to issue “preemptive” opinions, or acquiescing in inevitable change.
A third strength is the interesting take Magliocca offers on a selection of Supreme Court cases, some famous and some relatively obscure. Each decision is viewed through a frankly political lens, as Justices calculate both on the desired outcome and on how sweeping a ruling the context and one’s colleagues will bear.
On the other hand, the book’s conceptual framework seems problematic. Key concepts like generation, regime, cycle and reform are not rigorously defined. While there is no question that law and politics evolve over time, Magliocca’s references to “regular” or “predictable” change are puzzling. It is easy to say that “reform leads to resistance, and resistance leads to reform” (p.112): how could this ever be falsified? Certainly things change. Yet we have no theory that can predict the transformation, collapse or replacement of political parties or the outcomes of elections, which makes talk of ostensibly regular constitutional “cycles” rather bewildering.
Clearly, periodizing history is an art, not a science. When he takes the long view, some of Magliocca’s “generations” last over fifty years, while others are as brief as ten. The notion that each generation has a unique constitutional consensus that for a time defines a dominant regime is equally problematic. Though there have been a few lengthy periods of one-party control in Washington, this is not obviously a “generational” phenomenon. Moreover, Magliocca does not convincingly theorize the role of the Whigs in his narrative. Were the 1830s Whigs a different “generation” than the 1830s Democrats? If not, why did they so vehemently oppose the Jacksonian agenda? If so, how were their formative experiences different?
Occasional examples are given of a generation’s “formative experiences,” but without more, these examples lack predictive value. How severe or protracted must economic hardship be to make it formative? And, why does Magliocca never mention the impact of the War of 1812 or the Mexican War – especially given the role that designs of expansion played in making the slavery issue so volatile?
While the Abolitionists play a key role in Magliocca’s story, he characterizes their movement as religious rather than generational. He gives a fascinating [*418] account of their extrapolation of egalitarian ideas from the situation of Native Americans to that of slaves. But why is the role of women in the abolition movement and their subsequent building of a feminist movement completely ignored? Again, his theory of the relationship between generations, political parties and movements remains unclear.
In short, while attending to the passage of time surely enhances our grasp of the impact of social, economic and political variables on constitutional change, more argument and data are needed to establish the meaning and weight of “generation” as an independent variable. One can only speculate about Magliocca’s take on our current constitutional regime – perhaps, a state of transition between New Deal and post-New Deal generations?
In his use of “reform,” Magliocca takes partisan neutrality perilously close to excess, as he credits the Jacksonians with “significant advances in freedom” along with “horrific injustices” (p.4). The difficulty is that his narrative provides ample instances of the latter and none whatsoever of the former, aside from expansion of the franchise to unpropertied whites. That, of course, was done by the States and did not require a new regime in Washington. Moreover, the achievements of the Reconstruction-era Republicans are nearly reduced to a restoration of John Marshall’s constitutional doctrines, despite the failure of his generation to deal effectively with the plight of either Native Americans or slaves. Perhaps constitutional discourse needs a place for talk not just of cycles but also of progress.
Some readers may also resist Magliocca’s claim that, in periods of political transition, judicial behavior is indistinguishable from that of the elected branches. Some may think this claim goes too far, and others that it does not go far enough. If the relevant time periods and modes of decision were more clearly specified, perhaps an attitudinal model could generate some testable hypotheses. Magliocca does provide interesting readings of a number of Court decisions, but of course he cannot document his interpretations of the judicial motives for addressing or avoiding the issues as they did. It is safe to say that debate over the relationship between constitutional politics and constitutional law, and over how many distinct constitutional regimes we have had, will be with us for a long time to come.
CHEROKEE NATION v. GEORGIA, 30 U.S. (5 Pet.) 1 (1831).
DRED SCOTT v. SANFORD, 60 U.S. (1 How.) 393 (1857).
M’CULLOCH v. MARYLAND, 17 U.S. 94 Wheat.) 316 (1819).
WORCESTER v. GEORGIA, 31 U.S. (6 Pet.) 515 (1832).
© Copyright 2007 by the author, Daniel Hoffman.