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

• Date: 01 June 1996
• DOI: 10.1177/106591299604900208
• Author: Wallace Mendelson
• Published date: 01 June 1996
• Subject Matter: Articles

405

John

Marshall

and

the

Sugar

Trust--A

Reply

to

Professor

Gillman

WALLACE

MENDELSON,

UNIVERSITY

OF

TEXAS

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.

It

was

not

the

defects

of

the

Confederation

but

what

Madison

called the

"mul-

tiplicity,"

"mutability,"

and

"injustice"

of

the

laws

of

the

states

that

lay

behind

the

crisis

of the

1780s

and

the

creation

of the

Constitution

in

1787.

Gordon

S.

Wood

Marshall

...

was

on

guard

against

every

tendency

to

continue

treating

the

new

Union

as

though

it

were

the

old

Confederation.

Felix

Frankfurter

In

a

striking

essay

Robert

Clinton

(1994a:

857)

questions

the

traditional

view

that

Chief

Justice

Marshall

was

a

judicial

activist.

Howard

Gillman

(1994:

877)

objects,

arguing

that

Marshall

fathered

&dquo;dual

federalism&dquo;-the

ultimate

in

states’

rights

activism

that

doomed

so

much

Progressive

and

New

Deal legisla-

tion.

Assuming

this

novel

view

is

tenable,

does

it

establish

that

Marshall

was

essentially

an

activist?

Does

it

negate

Professor

Clinton’s

thesis,

or

at

most

one

of

the

supporting

arguments?’

The

Knight

case

emasculating

the

Sherman

Act

in

favor

of

the

Sugar

Trust,

marks

a

major

turning

point

in

constitutional

doctrine-a

triumph

of

judicial

1

I can

claim

no

more

than

to

have

developed

herein

with

more

detail

a

point

that

Profes-

sor

Clinton

makes

in

his

own

defense.

See

Clinton

1994b:

887.

2

United

States

v.

E.

C.

Knight

Co.,

156

U.S.

1

(1895).