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Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes Paperback – April 2, 2007
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Magliocca reinterprets the legal landmarks of the Jacksonian era to demonstrate how the meaning of the Constitution evolves in a cyclical and predictable fashion. He highlights the ideological battles fought by Jacksonian Democrats against Federalists and Republicans over states' rights, presidential authority, the scope of federal power, and other issues. By doing so he shows how presidential politics, Supreme Court decisions, and congressional maneuverings interweave, creating a recurrent pattern of constitutional change.
Magliocca builds on the view that major changes in American political and constitutional development occur generationally—in roughly thirty-year intervals—and move from dominant regime to the emergence of a counter-regime. Focusing on a period largely neglected in studies of such change, he offers a lucid introduction to the political and legal history of the antebellum era while tracing Jackson's remarkable consolidation of power in the executive branch.
The Jacksonian movement grew out of discontent over the growth of federal power and the protection given Native Americans at the expense of frontier whites, and Magliocca considers such issues to support his argument. He examines Jackson's defeat of the Bank of the United States, shows how his clash with the Marshall Court over the Cherokee "problem" in Worcester v. Georgia sparked the revival of abolitionist culture and foreshadowed the Fourteenth Amendment, and also offers a new look at Dred Scott, M'Culloch v. Maryland, judicial review, and presidential vetoes. His analysis shows how the interaction of reformers and conservatives drives change and how rough-and-tumble politics shapes our Republic more than the creativity of judicial decisions.
Offering intriguing parallels between Jackson and George W. Bush regarding the scope of executive power, Magliocca has produced a rich synthesis of history, political science, and law that revives our understanding of an entire era and its controversies, while providing a model of constitutional law applicable to any period.
- Print length198 pages
- LanguageEnglish
- PublisherUniversity Press of Kansas
- Publication dateApril 2, 2007
- Dimensions6 x 0.5 x 8.75 inches
- ISBN-100700617868
- ISBN-13978-0700617869
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“Recommended for anyone interested in the prospects of constitutional change. . . . It is highly readable and captures, better than most, the strategies, contingencies, and ironies of rough-and-tumble politics while illuminating the large-order patterns of conflict and consensus that characterize American constitutional and political history.”—Political Science Quarterly
“Together with Mark Graber’s Dred Scott and the Problem of Constitutional Evil, Magliocca’s book might well inaugurate a new generation in our understanding of antebellum constitutionalism.”—American Historical Review
“An interesting story, concisely and readably told.”—Journal of Southern History
“This is a truly distinguished contribution to our constitutional understanding, combining theory and history in an exemplary fashion. If you are going to read one book about our Constitution this year, read Magliocca’s.”—Bruce Ackerman, author of The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy
“A perceptive book that offers a valuable, fresh look at both Jacksonian Democracy and the interpretation of the Constitution.”—Donald B. Cole, author of The Presidency of Andrew Jackson
“A provocative and much needed reassessment of constitutional change in the Age of Jackson.”—R. Kent Newmyer, author of John Marshall and the Heroic Age of the Supreme Court
“Jackson’s presidency raises questions about the nature of power in American life. Magliocca’s book is especially good on these issues.”—Jon Meacham, author of American Lion: Andrew Jackson in the White House
From the Back Cover
"A perceptive book that offers a valuable, fresh look at both Jacksonian Democracy and the interpretation of the Constitution."--Donald B. Cole, author of The Presidency of Andrew Jackson
"A provocative and much needed reassessment of constitutional change in the Age of Jackson."--R. Kent Newmyer, author of John Marshall and the Heroic Age of the Supreme Court
"Jackson's presidency raises questions about the nature of power in American life. Magliocca's book is especially good on these issues."--Jon Meacham, author of American Lion: Andrew Jackson in the White House
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- Publisher : University Press of Kansas; Illustrated edition (April 2, 2007)
- Language : English
- Paperback : 198 pages
- ISBN-10 : 0700617868
- ISBN-13 : 978-0700617869
- Item Weight : 11.2 ounces
- Dimensions : 6 x 0.5 x 8.75 inches
- Best Sellers Rank: #3,561,294 in Books (See Top 100 in Books)
- #3,415 in United States Executive Government
- #14,979 in History & Theory of Politics
- #71,810 in U.S. State & Local History
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About the author

I'm the Samuel R. Rosen Professor at Indiana University Robert H. McKinney School of Law. I've written five books on constitutional law and history, and my next one will be about Justice Robert H. Jackson's landmark concurring opinion on presidential power in The Steel Seizure Cases.
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Magliocca sees each constitutional generation as being "formed" by shared collective experiences that cause them to largely share political and legal beliefs. The experiences that Magliocca is talking about can be things like 9-11, the Great Depression, the Civil War, etc. (pp.2-3). Obviously he is talking about a tendency of a majority as opposed to the views of any one individual. These generations are also reflected in the political domination of one party, e.g., the Jacksonians, FDR Democrats, etc.. The great eras of our constitutional history can thus be seen as a period when one generation held sway. At that moment, another generation is always beginning to develope in response to real injustices that are ignored (or condoned) by the dominant generation.
Magliocca throughout his book lists patterns of change that every rising generation follows. This is where my comparison to the I Ching comes in. I am being somewhat tongue-in-cheek in making that comparison but Magliocca invites that sort of response with statements like the following: "Reform leads to resistance, and resistance leads to reform. That is a central theme of the constitutional cycle" (p.112). Fortunately, Magliocca has some very powerful ideas to offer us about some of these patterns of change. For example, he believes that as a rising generation rises to power through Congress and the Presidency, that the older generation still dominant on the Supreme Court begins to escalate their resistance. At this point, the older generation is likely to start to hand down "preemptive opinions". These rulings utilize three tactics:
1. The Justices will decide every issue instead of following the usual practice of avoiding major constitutional issues. They are trying to create landmark rulings.
2. The Court will try to undermine the rising generations thought in the strongest possible way. They want to attack its basic principles and rule them invalid.
3. Since this is usually very difficult to do with established doctrine, the Court will invent some "new theory of equality or fairness" to ground their ruling on. (p.43)
Magliocca believes that both Worcester v. Georgia in 1832 and Dred Scott v. Sanford are examples of such decisions. It is worth the reading of Magliocca's book for his reading of these two cases alone.
The Kuhnian thrust of Magliocca's argument (that I allude to in my review title) is that Magliocca believes that these "generational" conflicts are fought out politically and not through contests of reasoning. His history of the Taney court and of the rise and fall of the Jacksonians provides strong evidence for his belief. Magliocca also makes room for the role of chance events (the death of William Henry Harrison and the subsequent Tyler presidency, the assassination of Lincoln, etc.)
Overall, this is, as stated, a very impressive essay. My problem with Magliocca is hinted at by my use of the word essay. This books needs expansion. As it is, it is only 129 pages long. He should have continued the story through both the rise of the Progressive and the New Deal generation. Magliocca is claiming universal validity for his thesis with its individual patterns of change.
Here is another example:
"Rising movements are filled with a righteous belief that the voters have give them a mandate for constitutional reform. On the other side, the justices generally believe that they represent the true voice of the people as set forth in the text of the Constitution and decades of precedent." (p. 37)
This seems true enough but it needs to be shown to be a truly universal pattern. Show me how it worked in the switch to the Progressives or to the New Deal. Applying his concepts to more historical examples would allow them to be further refined.
This is especially true of his concept of preemptive opinion. I would love to have seen an Appendix with a listing of all the cases that Magliocca suspected could be considered as such. I would love to read what Magliocca would have to say about a case like Buck v. Bell in 1935? It would seem to be a good candidate for preemptive status except for the third tactic. Indeed, Justice Roberts seems to reach back to fairness standards of a generation or two earlier in that one. (See the second chapter of Leuchtenburg's, The Supreme Court Reborn, for a good discussion).
So my complaint is that the current book feels more like a precise for a reasearch program to be completed. Magliocca may be on to an essential way of understanding major changes in our constitutional history. He hasn't convinced me that it is applicable to that larger history as yet. He has provided us, however, with a very fine and subtle reading to the Jacksonian period. I do not want to minimize that. For example, be makes a subtle and important point about how the beliefs of the abolitionist evolved as a result of watching the Jacksonian treatment of the Cherokees. His book is well worth reading for the period history alone.
But I, for one, am waiting for the rest of the history.


