Trump is trying to faithfully execute his office and, in his own way, to strengthen the Constitution.
Maryland’s state song made the front page of the Baltimore Sun yesterday. The marching band at the state university doesn’t want to play it at football games anymore.
The lyrics, set to the tune of “O Christmas Tree” by a secession-minded poet in 1861, begin: “The despot’s heel is on thy shore.” It’s a reference to the federal government. Marylanders are urged to use their “peerless chivalry” to rise up and defend the state: “She is not dead, nor deaf nor dumb. Huzza! She spurns the Northern scum!”
This egregious song comes up for debate every so often. For years there’s been a bill in the legislature in Annapolis proposing that it be replaced. Amid moves all across the country to ditch public reminders of American slavery and/or the Confederacy, the on-again-off-again campaign against “Maryland, My Maryland” is on again.
I supported this bill; in the current climate, though, I’m not so sure. It might be better to effect such changes in a calmer moment than the one we’re now in. Surely Donald Trump is right when he says that these historical purges can get out of hand.
As the political theorist Clifford Orwin writes:
It would be a shame if this discussion never rose above a shouting match, which, unfortunately, is what both sides seem to want. You need not be a ‘white nationalist’ (an asinine term, since there’s no white nation) to defend such monuments, nor do liberal proclivities require you to take your axe to them.
It’s Trump himself who precipitated the shouting match, make no mistake. As a presidential candidate, he purposely made campaign stops that had the potential to rile left-wingers to the point of fighting or destroying property (as I then wrote). He reaped political benefits from those campaign confrontations.
His response to the Charlottesville melee, in which Heather Heyer died at the hands of a neo-Nazi, has brought the decibel level up even higher. That takes us back to my adopted state of Maryland, where there are now several empty plinths on which statues of Roger Taney, Chief Justice of the Supreme Court, used to stand. Taney, the Marylander who wrote the 1857 Dred Scott decision that said black persons had no rights that deserved respect, and that the federal government lacked the authority to outlaw slavery in the territories, has been removed from places of civic honor in Frederick, Annapolis, and Baltimore since the spring.
There are whole teams of people whose job it is to follow in Trump’s wake to try to mitigate the havoc he wreaks. Let me join these mitigators by offering admirable Marylanders who might be considered as Taney replacements.
One would be Luther Martin (1748-1826), the dogged and irritable lawyer who was a leader in the American Revolution, a standout delegate at the Philadelphia Convention, a long-serving Maryland attorney general, and, like Thomas Jefferson, a slaveholder who, though caught up in the iniquitous practice himself, knew slavery was wrong and said so.
Luther Martin feared a strong national government as a threat to liberty—another point of comparison with Jefferson. The apparently sole exception that Martin made to “states’ rights” was, in fact, slavery. He believed the national legislature should be able to legislate against slavery, and override state laws that supported it.
James Madison, in his Notes of Debates in the Federal Convention of 1787, highlighted Martin’s proposal to “allow a prohibition or tax on the importation of slaves.” Like delegates who had been sent to Philadelphia from states that had already abolished slavery (such as New York’s Gouverneur Morris), the Marylander opposed the representation of slaves in the U.S. Congress, for this would only “boost the power of their masters, without conferring any benefit upon the slaves, since of course slaves could not vote,” in the words of Richard Brookhiser. The Three-Fifths Clause would bring great harm because it would “leave an encouragement to this trafic,” Luther Martin said. (How odd it is that the criticism of the Three-Fifths Clause, as supposedly treating a black person as three-fifths of a person, should have such currency today. Zero fifths would have served the antislavery cause even better.)
When a South Carolinian delegate in Philadelphia proposed that the federal government be barred from regulating the slave trade, a pitched battle ensued. Martin rose to make the case that the Atlantic slave trade ought not be exempt from federal regulation because the entire United States would bear the responsibility for quelling slave revolts. He summed up his position by saying it was “inconsistent with the principles of the Revolution and dishonorable to the American character to have such a feature [as slavery] in the Constitution.”
Martin rejected the final product of the Philadelphia Convention. He had only wanted to revise the Articles of Confederation. Having refused to sign the Constitution, he was its most vociferous critic at Maryland’s ratifying convention. His side lost, and it wasn’t close.
More fascinating than he was consistent, Martin would probably not be everyone’s ideal Founder. Historian Catherine Drinker Bowen called him “impulsive, undisciplined, altogether the wild man of the Convention, furious defender of state sovereignty, by no means foolish in all he said.” Out of an intense personal dislike for Jefferson, Martin ended up deserting the Anti-Federalists for the Federalists. He argued on behalf of Maryland in the landmark case of McCulloch v. Maryland (1819) and lost. He defended his friend Aaron Burr against the charge of treason, and that time, he won. Also he was a drunk and died a pauper.
A backup suggestion is probably in order, so let me propose James McHenry of Fort McHenry fame. McHenry (1753-1816), an aide-de-camp to General Washington and the Marquis de Lafayette, sat in the Maryland legislature and the Continental Congress, and served as Secretary of War in the administrations of George Washington and John Adams. He appears to have been less brilliant than Luther Martin but more virtuous. As McHenry’s wife said of him upon his death: “He was not a great man, but participated in great events and great men loved him.”
McHenry emigrated to America from Ireland in 1771. He studied medicine under Benjamin Rush, and joined a Pennsylvania regiment to fight for American independence. He came to serve General Washington at Valley Forge after being held as a prisoner of war by the British for two years. A staunch Federalist, he was a close confidant of Alexander Hamilton’s from the Revolutionary War onward. Chosen as one of Luther Martin’s fellow delegates to the Philadelphia Convention, McHenry made no memorable remarks there but took notes that editor Max Farrand deemed worthy of inclusion in Farrand’s 1911 Records of the Federal Convention of 1787.
As with Martin, there is a downside here. One reads in Ron Chernow’s biography of Hamilton that Secretary of War McHenry was a pretty weak administrator. “Hamilton constantly issued directives to the hapless McHenry,” writes Chernow. “That he accepted such guidance from Hamilton makes one suspect that he lacked confidence in his abilities and welcomed the guidance.”
Well, nobody’s perfect; I say the man’s evident incorruptibility should still speak in his favor. Of the 1787 Constitution, James McHenry told the ratifying convention in Maryland: “I myself could not approve of it throughout, but I saw no prospect of getting a better.” The same could be said of our heroes, and our history as a nation. The worst thing would be to put nothing on those plinths—to get rid of our past because it falls short of what we would’ve liked it to be.
 “States’ rights” is a misnomer in that states have powers not rights. It is persons who have rights. The phrase is used for the sake of convenience.