John Marshall and the Constitution

ts Of Na

l's work proved more than a strong intellect, a good style, personal ascendancy in his court, courage, justice, and the convictions of his party." Both these divergent estimates of the great Chief Justice have their value. It is well to be reminded that Marshall's task lay within the four corners of the Constitution, whose purposes he did not originate, especially since no one would have been quicker than himself to disown praise implying anyt

ely as a judicial tribunal; it was a platform from which to promulgate sound constitutional principles, the very cathedra indeed of constitutional orthodoxy. Not one of the cases which elicited his great opinions but might easily have been decided on comparatively narrow grounds in precisely the same way in which he decided it on broad, general principles, but with the

of generalities." In Marshall's method-as in the older syllogistic logic, whose phraseology begins to sound somewhat strange to twentieth century ears-the essential operation consisted in eliminating the "accidental" or "irrelevant" elements from the "significant" facts of a case, and then recognizing that this particular case had been foreseen and provided for in a general rule of law. Proceeding i

n the history of the Court. The question immediately involved was whether the State of Maryland had the right to tax the notes issued by the branch which the Bank of the United States had recently established at Baltimore. But this question raised the fur

o the chartering of the Bank of 1791. The measure precipitated the first great discussion over the interpretation of the new Constitution. Hamilton owned that Congress had no specifically granted power to charter a bank but contended that such an institution was a "necessary and proper" means for carrying out certain of the enumerated powers of the National Government such, for instance, as borrowing money and issuing a currency. For, said he in effect, "necessary and proper" signify "convenient," and the clause was intended to indicate that the National Govern

giving it articulate expression. The amount of political talent which existed within the State of Virginia alone in the first generation of our national history is amazing to contemplate, but this talent unfortunately exhibited one most damaging blemish. The intense individualism of the planter-aristocrat could not tolerate in any possible situation the idea of a control which he could not himself ultimately either direct or reject. In the Virginia and Kentucky resolutions of 1798 and 1799, which regard the Constitution as a compact of sovereign States and the National Government merely as their agent, the particularistic outlook definitely received a constitutional creed which in time was to become, at least in the South, a gloss upon the Constitution reg

rguing for the State, Hopkinson urged the restrictive view of the "necessary and proper" clause and sought to reduce to an absurdity the doctrine of "implied rights." The Bank, continued Hopkinson, "this creature of construction," claims by further implication "the right to enter the territory of a State without its consent" and to establish there a branch; then, by yet another implication, the branch claims exemption from taxation. "It is thus with the famous fig-tree of India, whose branches shoot fr

Maryland (1819),

r in my whole life heard a greater speech; it was worth a journey from Salem to hear it; his elocution was excessively vehement; but his eloquence was overwhelming. His language, his style, his figures, his argument, were most b

ir highest form, of his other notable qualities as a judicial stylist: his "tiger instinct for the jugular vein"; his rigorous pursuit of logical consequences; his power of stating a case, wherein he is rivaled only by Mansfield; his scorn of the qualifying "but's," "if's," and "though's"; the pith and balance of his phrasing, a reminiscence of his early

ider the argument "that the people had already surrendered all their powers to the State Sovereignties and had nothing more to give," a persuasive one, for "surely, the question whether they may resume and modify the power granted to the government does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted, had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by them." "The Government of the Union, then," Marshall proceeded, "is emphatically ... a government of the people. In form and in substance it emanates from them. Its powers are gran

ny of the powers of the General Government. Counsel for Maryland would read this clause as limiting the right which it recognized to the choice only of such means of execution as are indispensable; they would treat the word "necessary" as controlling the clause and to this they would affix the word "a

ause therefore is not to impair the right of Congress "to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the Government," but rather "to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in th

hey are given by all for the benefit of all," and owe their presence in the State not to the State's permission but to a higher authority. The State of Maryland therefore never had the power to tax the Bank in the first place. Yet waiving this theory, there was, in the second place, flat incompatibility between the Act of Maryland and the Act of Congress, not simply because of the specific operation of the former, but rather because of the implied claim which it made for state authority. "That the power to tax involves the power to destroy," Marshall continued; "that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional meas

from the Legislature of New York a grant of the exclusive right to run steamboats on the waters of the State, and in this case one of their licensees, Ogden, was seeking to prevent Gibbons, who had steamers in the coasting trade under an Act of Congress, from operating them on the Hudson in trade between points in New York and New Jersey. A circumstance w

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estigation. Webster, never in any case apt to regard his own performance overcritically, seems in later years to have been persuaded that the Chief Justice's opinion "followed closely the track" of his argument on this occasion; and it is true that Marshall expressed sympathy with Webster's contention that Congress may regulate as truly by inaction as by action, since inaction may indicate its wish that the matter go unregulated; but the Chief Justice did not explicitly adopt this idea, and the major part of his opinion was a running refutation of Emmet's ar

, 9 Johnson, 807 (1812); also

" and there is not a word in it which lends any countenance to the idea that these powers should be strictly interpreted. As men whose intentions required no concealment, those who framed and adopted the Constitution "must be understood to have employed words in their natural sense and to have intended what they said"; but if, from the inherent imperfection of language, doubts were at any time to arise "respecting the extent of any given power," then the known purposes of the instrument should control the construction put on its phraseolog

ibe the rule by which commerce is to be governed." It is a power "complete in itself," exercisable "at its utmost extent," and without limitations "other than are prescribed by the Constitution.... If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government hav

es have the right to enact many kinds of laws which will incidentally affect commerce among the States, such for instance as quarantine and health laws, laws regulating bridges and ferries, and so on; but this they do by virtue of their power of "internal police," not by virtue of a "concurrent" power over commerce, foreign and interstate. And, indeed, New York may have granted Fulton and Livingston their monop

held that it conferred the right itself, together with the auxiliary right of navigating the waters of the United States; whence it followed that New York was powerless to exclude Gibbons's vessels from the Hudson. Incidentally Marshall indicated his opinion that Congress'

e further principle that an attempt by a State to tax interstate or foreign commerce is tantamount to an attempt to regulate such commerce, and is consequently void. In other words, the principle of the exclusiveness of Congress's power to regulate commerce among the States and with foreign nations, which is advanced by way of dictum in Gibbons vs. Ogden, bec

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ised; if it may be exercised at all, it may be exercised at the will of those in whose hands it is placed." The attitude of the Court nowadays, when it has to deal with state legislation, is very different. It takes the position that abuse of power, in relation to private rights or to commerce, is excess of power and hence demands to be shown the substantial effect of legislation, not its mere formal justification. 1 In short, its inquiry is into facts. On the other hand, when dealing with congressional legislation, the

, 326; also the more recent case of Western U

U. S., 321; 227 U. S.,

nstitution from the side of national power and which after various ups and do

ce of the people of the United St

g a beneficial use of the powers which it creates, not with th

hence was to be "adapted to the various crises of human affairs," to be kept a com

as to those powers it is a sovereign government, both in its choice of the means by whic

exclusive power, so that the States may not intrud

nt within the States, not by the tolerance of the States, but

al interpretation in the field of treaty making, see the w

all, in face of the rising tide of State Rights, felt himself to be in a peculiar sense the official custodian. It is the principle which he had in mind

d if any possible construction will retain them, may by a course of refined and metaphysical reasoning ... explain away the Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perpl