John Marshall and the Constitution

tity Of

th the intention which its framers had of establishing an efficient National Government. But he found a task of resto

The latter had enumerated "the objects of Union" as follows: "First, defense against foreign danger; secondly, against internal disputes and a resort to force; thirdly, treaties with foreign nations; fourthly, regulating foreign commerce and drawing revenue from it." To this statement Madison demurred.

ention by the Legislature in private controversies pending in, or already decided by, the ordinary courts, with the result that judgments were set aside, executions canceled, new hearings granted, new rules of evidence introduced, void wills validated, valid contracts voided, forfeitures pronounced-all by legislative mandate. Since that day the courts have developed an interpretation of the principle of the separation of powers and have enunciated a theory of "due process of law," which renders this sort of legislative abuse quite i

upra, p

riter's Doctrine of Judicial Review

s clause "was not inserted to secure the citizen in his private rights of either property or contracts," but only against certain kinds of penal legislation. The decision roused sharp criticism and the judges themselves seemed fairly to repent of it even in handing it down. Justice Chase, indeed, even went so far as to suggest, as a sort of stop-gap to the breach they were thus creating in the Constitution, the idea that, even in the absence of written constitutional re

s attitude toward Section X in 1787, as follows: "The questions which were perpetually recurring in the State legislatures and which brought annually into doubt principles which I thought most sacred, whi

ing act set aside. The Court would not today take jurisdiction of such a case, but Marshall does not even suggest such a solution of the question, though Justice Johnson does in his concurring opinion. In the second place, Georgia's own claim to the lands had been most questionable, and consequently her right to grant them to others was equally dubious; but this, too, is an issue which Marshall avoids. Finally, the grant had been procured by corrupt means, but Ma

ranch

zes that a decision based on such grounds must be far less secure and much less generally available than one based on the words of the Constitution; whereupon he brings forward the obligation of contracts clause. At once, however, he is confronted with the difficulty that the obligation of a contract is the obligation of a contract still to be fulfilled, and that a grant is an executed contract over and do

Georgia to her supposed agreement not to rescind the grant she had made? Not the Constitution of the United States unattended by any other law, since it protects the obligation only after it has come into existence. Not the Constitution of Georgia as construed by her own courts, since they had sustained the rescinding act. Only one possibility remained; the State Constitution

hesitates to overrule Calder vs. Bull, and, indeed, even at the very end of his opinion he still declines to indicate clearly the basis of his decision. The State of Georgia, he says, "was restrained" from the passing of the rescinding act "either by ge

the Christian religion; and so great was his success that he felt encouraged to extend the undertaking and to solicit donations in England. Again success rewarded his efforts; and in 1769 Governor Wentworth of New Hampshire, George III's representative granted the

. M. Shirley's Dartmouth College Causes (St. Louis

anover. A certain Samuel Hayes, or Haze, told a woman named Rachel Murch that her character was "as black as Hell," and upon Rachel's complaint to the session, he was "churched" for "breach of the Ninth Commandment and also for a violation of his covenant agreement." This incident caused a rift which gradually d

stablishments," said he, "like everything human, if not duly attended to, are subject to decay.... As it [the charter of the College] emanated from royalty, it contained, as was natural it should, principles congenial to monarchy," and he cited particularly the power of the Board of Trustees to perpetuate itself. "This last principle," he continued, "is hostile to the spirit and genius of a free g

s generally inculcate this doctrine, and suppose that preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves; ... in fine, that the earth belongs to the dead and not to the living." And so, too, apparently the majority of the Legislature believed; for by the measure which it prom

o William H. Woodward, the Secretary and Treasurer of the "University." This was served by attaching a chair "valued at one dollar." The story is also related that authorities of the College, apprehending an argument that the institution had already forfeited its charter on account of having ceased to minister to

latter, "every law must be considered in the nature of a contract, until the Legislature would find themselves in such a labyrinth of contracts, with the United States Constitution over their heads, that not a subject would be left within their jurisdiction"; the argument was an expedient of desperation, he said, a "last straw." The principal contention advanced in behalf of the Act was that the College was "a public corporation," whose "various powers, capacities, and franchises all ... were to be exercised for the benefit of the public," and were therefore subject to public control. And the Court, in sustaining the Act, rested

ompelling figure, and to the words which it assigns him in closing his address before the Court has largely been attributed the great legal triumph which present

r, is my case. It is the case ... of every college in our land.... Sir, you may destroy this little institution.... You may put it out. But if you do so, you must carry through your work! You must extinguish, o

ice Marshall, with his tall and gaunt figure bent over, as if to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and his eyes suffused with tears; Mr. Justice Washington at his side, with small and emaciated frame, and countenance mo

d the heart of an audience: "Sir, I know not how others may feel ... but for myself, when I see my Alma Mater surrounded, like C?sar in the Senate house

is today impossible to say. 1 But at least it would be an error to attribute to it great importance. From the same source we have it that a

, communicated it to Rufus Choate in 1853. It next appears on

left one important question entirely to the Chief Justice's ingenuity, as will be indicated shortly. Fortunately for the College its opponents were ill prepared to take advantage of the vulnerable points of its defense. For some unknown reason, Bartlett and Sullivan, who had carried the day at Exeter, had now given place to William Wirt and John Holmes. Of these the former had just been made Attorney-General of the United States a

nd that consequently the cause must be continued. Webster, however, who was apt to be much in "the know" of such matters, ventured to place the different judges thus: "The Chief and Washington," he wrote his former colleague Smith

ransacking of the records brought to light an opinion which Kent and Livingston had both signed as early as 1803, when they were members of the New York Council of Revision, and which took the ground that a then pending measure in the New York Legislature for altering the Charter of New York City violated "due process of law." At the same time, Charles Marsh, a friend of both Kent and

were broad enough to cover and protect this representative interest. The last was the only point on which he confessed a real difficulty. The primary purpose of the constitutional clause, he owned, was to protect "contracts the parties to which have a vested beneficial interest" in them, whereas the trustees had no such interest at stake. But, said he, the case is within the words of the rule, and "must be within its operation likewise, unless there be something in the literal construction" obviously at war with the spirit of the Constitution, which was far from the fact. For, he continued, "it requires no very critical examination of the human mind to enable us to determine that one great inducement to th

and so have disappointed the hopes of the donors; but, he adds, "the perfidy of the transaction would have been universally acknowledged." Later on, he further admits that at the time of the Revolution the people of New Hampshire succeeded to "the transcendent power of Parliament," as well as to that of the King, with the result that a repeal of the charter before 1789 could have been contested only under the State Constitution. "But th

ffected. Historically it is equally without basis, for the intention of the obligation of contracts clause, as the evidence amply shows, was to protect private executory contracts, and especially contracts of debt. 1 In actual p

ceable through the Index to Max Farra

k left it no option but to declare the amending act void, had Dartmouth College been, say, a gas company; and this was in all probability the universal view of bench and bar in 1819. Whatever blame there is should therefore be awarded the earlier decision. But, in the second place, there does not appear after all to

en if they were, what is to be said of that other not uncommon incident of legislative history, the legislative "strike," whereby corporations not protected by irrepealable charters are blandly confronted with the alternative of having their franchises mutilated or of paying handsomely for their immunity? So the issue seems to resolve itself into a question of taste regarding two species of legislative "honesty." Does one prefer that species which, in the words of the late Speaker

en in England as well as in this country the value, and indeed the possibility, of representative institutions had been frankly challenged in the name of liberty. For the United States the problem of making legislative power livable and tolerable-a problem made the more acute by the multiplicity of legislative bodies-was partly solved by the establishment of judicial review. But this was only the first step: legislative power had still to be d

dvanced the principle of the exclusiveness of Congress's power over foreign and interstate commerce. Under the shelter of this interpretation there developed, in the railroad and transportation business of the country before the Civil War, a property interest almost as extensive as that which supported the doctrine of State Rights. Nor can it be well doubted

t was a compact among individuals, a social compact. But a great and increasing number of his countrymen took the other view. How unsafe, then, it would have been from the standpoi