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History of the United States by Charles A. Beard and Mary R. Beard
» PART III. THE UNION AND NATIONAL POLITICS
» CHAPTER IX

«·The Republicans Nationalized · Summary of the Union and National Politics·»


The National Decisions of Chief Justice Marshall

John Marshall, the Nationalist.—The Republicans in the lower ranges of state politics, who did not catch the grand national style of their leaders charged with responsibilities in the national field, were assisted in their education by a Federalist from the Old Dominion, John Marshall, who, as Chief Justice of the Supreme Court of the United States from 1801 to 1835, lost no occasion to exalt the Constitution above the claims of the provinces. No differences of opinion as to his political views have ever led even his warmest opponents to deny his superb abilities or his sincere devotion to the national idea. All will likewise agree that for talents, native and acquired, he was an ornament to the humble democracy that brought him forth. His whole career was American. Born on the frontier of Virginia, reared in a log cabin, granted only the barest rudiments of education, inured to hardship and rough life, he rose by masterly efforts to the highest judicial honor America can bestow.

John Marshall
John Marshall

On him the bitter experience of the Revolution and of later days made a lasting impression. He was no “summer patriot.” He had been a soldier in the Revolutionary army. He had suffered with Washington at Valley Forge. He had seen his comrades in arms starving and freezing because the Continental Congress had neither the power nor the inclination to force the states to do their full duty. To him the Articles of Confederation were the symbol of futility. Into the struggle for the formation of the Constitution and its ratification in Virginia he had thrown himself with the ardor of a soldier. Later, as a member of Congress, a representative to France, and Secretary of State, he had aided the Federalists in establishing the new government. When at length they were driven from power in the executive and legislative branches of the government, he was chosen for their last stronghold, the Supreme Court. By historic irony he administered the oath of office to his bitterest enemy, Thomas Jefferson; and, long after the author of the Declaration of Independence had retired to private life, the stern Chief Justice continued to announce the old Federalist principles from the Supreme Bench.

Marbury vs. Madison—An Act of Congress Annulled.—He had been in his high office only two years when he laid down for the first time in the name of the entire Court the doctrine that the judges have the power to declare an act of Congress null and void when in their opinion it violates the Constitution. This power was not expressly conferred on the Court. Though many able men held that the judicial branch of the government enjoyed it, the principle was not positively established until 1803 when the case of Marbury vs. Madison was decided. In rendering the opinion of the Court, Marshall cited no precedents. He sought no foundations for his argument in ancient history. He rested it on the general nature of the American system. The Constitution, ran his reasoning, is the supreme law of the land; it limits and binds all who act in the name of the United States; it limits the powers of Congress and defines the rights of citizens. If Congress can ignore its limitations and trespass upon the rights of citizens, Marshall argued, then the Constitution disappears and Congress is supreme. Since, however, the Constitution is supreme and superior to Congress, it is the duty of judges, under their oath of office, to sustain it against measures which violate it. Therefore, from the nature of the American constitutional system the courts must declare null and void all acts which are not authorized. “A law repugnant to the Constitution,” he closed, “is void and the courts as well as other departments are bound by that instrument.” From that day to this the practice of federal and state courts in passing upon the constitutionality of laws has remained unshaken.

This doctrine was received by Jefferson and many of his followers with consternation. If the idea was sound, he exclaimed, “then indeed is our Constitution a complete felo de se [legally, a suicide]. For, intending to establish three departments, coördinate and independent that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation.... The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also.... A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.” But Marshall was mighty and his view prevailed, though from time to time other men, clinging to Jefferson’s opinion, likewise opposed the exercise by the Courts of the high power of passing upon the constitutionality of acts of Congress.

Acts of State Legislatures Declared Unconstitutional.—Had Marshall stopped with annulling an act of Congress, he would have heard less criticism from Republican quarters; but, with the same firmness, he set aside acts of state legislatures as well, whenever, in his opinion, they violated the federal Constitution. In 1810, in the case of Fletcher vs. Peck, he annulled an act of the Georgia legislature, informing the state that it was not sovereign, but “a part of a large empire, … a member of the American union; and that union has a constitution … which imposes limits to the legislatures of the several states.” In the case of McCulloch vs. Maryland, decided in 1819, he declared void an act of the Maryland legislature designed to paralyze the branches of the United States Bank established in that state. In the same year, in the still more memorable Dartmouth College case, he annulled an act of the New Hampshire legislature which infringed upon the charter received by the college from King George long before. That charter, he declared, was a contract between the state and the college, which the legislature under the federal Constitution could not impair. Two years later he stirred the wrath of Virginia by summoning her to the bar of the Supreme Court to answer in a case in which the validity of one of her laws was involved and then justified his action in a powerful opinion rendered in the case of Cohens vs. Virginia.

All these decisions aroused the legislatures of the states. They passed sheaves of resolutions protesting and condemning; but Marshall never turned and never stayed. The Constitution of the United States, he fairly thundered at them, is the supreme law of the land; the Supreme Court is the proper tribunal to pass finally upon the validity of the laws of the states; and “those sovereignties,” far from possessing the right of review and nullification, are irrevocably bound by the decisions of that Court. This was strong medicine for the authors of the Kentucky and Virginia Resolutions and for the members of the Hartford convention; but they had to take it.

The Doctrine of Implied Powers.—While restraining Congress in the Marbury case and the state legislatures in a score of cases, Marshall also laid the judicial foundation for a broad and liberal view of the Constitution as opposed to narrow and strict construction. In McCulloch vs. Maryland, he construed generously the words “necessary and proper” in such a way as to confer upon Congress a wide range of “implied powers” in addition to their express powers. That case involved, among other things, the question whether the act establishing the second United States Bank was authorized by the Constitution. Marshall answered in the affirmative. Congress, ran his reasoning, has large powers over taxation and the currency; a bank is of appropriate use in the exercise of these enumerated powers; and therefore, though not absolutely necessary, a bank is entirely proper and constitutional. “With respect to the means by which the powers that the Constitution confers are to be carried into execution,” he said, Congress must be allowed the discretion which “will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.” In short, the Constitution of the United States is not a strait jacket but a flexible instrument vesting in Congress the powers necessary to meet national problems as they arise. In delivering this opinion Marshall used language almost identical with that employed by Lincoln when, standing on the battle field of a war waged to preserve the nation, he said that “a government of the people, by the people, for the people shall not perish from the earth.”


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