John Marshall and the Constitution

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mocratic impulse of the times, remained a serpent which was scotched but not killed. To be sure, this dangerous enemy to national unity had failed to secure for the state Legislatures the right to interpret the Constitution with authoritative finality; but its

on itself, the highest state court into which the case can come must either sustain such a claim or consent to have its decision reviewed, and possibly reversed, by the Supreme Court. The defenders of State Rights at first applauded this arrangement because it left to the local courts the privilege of sharing a jurisdiction which could have been claimed exclusively by the Feder

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article on Chief Justice Marshall and Virginia

ctims; but it was withal a highly ingenious plea. At one point Roane enjoyed an advantage which would not be his today when so much more gets into print, for the testimony of Madison's Journal, which was not published till 1840, is flatly against him on the main issue. In 1814, however, the most nearly contemporaneous evidence as to the intention of the framers of the Constitution was that of the Federalist, which Roane stigmatizes as "a mere newspaper publication written in the heat and fury of the battle," largely by

the judicial power of the United States extends to "all cases arising" under the Constitution and the laws of the United States. But in order to come within this description, a case must not merely involve the construction of the Constitution or laws of the United States; it must have been instituted in the United States courts, and not in those of another Government. Further, the Constitution and the acts of Congress "in pursuance thereof" are "the supreme law of the land," and "the judges in every State" are "bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." But they are bound a

inute examination of the language of Article III of the Constitution. In brief, he pointed out that while Congress "may ... establish" inferior courts and, therefore, may not, it was made imperative that the judicial power of the United States "shall extend to all cases arising ... under" the Constitution and acts of Congress. If, therefore, Congress should exercise its option and not establish inferior courts, in what manner, he asked, could the purpose of the Constitution be realized except

ad an indirect interest in t

shall's opinion in Cohens vs. Virginia. 1 The facts of this famous case were as follows: Congress had established a lottery for the District of Columbia, for which the Cohens had sold tickets in Virginia. They had thus run foul

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nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made by a part against the legitimate powers of the whole, and that the government is reduced to the alternative of submitting to such attempts or of resisting them by force. They maintain that the Constitution of the United States has prov

ines too strong to be mistaken, the characteristic distinction between the Government of the Union and those of the States. The General Government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution, and if there be any who deny its necessity, none can deny its authority." Nor was this to say that the Constitution is unalterable. "The people m

or a law of the United States whenever its correct decision depends on the construction of either." From this it followed that Section XXV was a measure necessary and proper for extending the judicial power of the United States appellately to such cases whenever they were first brought in a state court. Nor did Article XI of the Amendments nullify the power thus conferred upon the Court in a case which the State itself had instituted, for in such a case the appeal taken to the national tribunal was only another stage in an action "begun

ong since nursed his antipathy for the Federal Judiciary to the point of monomania. It was in his eyes "a subtle corps of sappers and miners constantly working underground to undermine our confederated fabric"; and this latest assault upon the rights of the States seemed to him, though perpetrated in

ane, but quickly learned that the Virginia press was closed to that side of the question. He got his revenge, however, by obtaining the exclusion of Roane's effusions from Hall's Law Journal, an influential legal periodical published in Philadelphia. But the personal aspect of the controversy was the least important. "A deep design," Marshal

rded a widespread grievance. Ohio had defied the ruling in M'Culloch vs. Maryland, and her Treasurer was languishing in jail by the mandate of the Federal Circuit Court. Kentucky had a still sharper grievance in the decision in Green vs. Biddle, 2 which inv

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oto the rights of the Federal Courts to pass upon the constitutionality either of acts of Congress or of state legislative measures. So long as judges were confined to the field of jurisprudence, the principles of which were established and immutable, judicial independence was all very well, said Johnson, but "the science of politics was still in its infancy"; and in a republican system of government its development should be entrusted to those organs which were responsible to the people. Judges were of no better clay than other folk. "Why, then," he asked, "should they be considered any

by Marshall's decisions, see two articles by Charles War

of seven judges; another, the allowance of appeals to the Court on decisions adverse to the constitutionality of state laws as well as on decisions sustaining them. Finally, in January, 1826, a bill enlarging the Court to ten judges passed the House by a vote of 132 to 27. In the Senate, Rowan of Kentucky moved an amendment requiring in all cases the concurrence of seven of the proposed ten judges. In a speech which was typical of current criticism o

ms-a freedom which the doctrine of State Rights promised them-and so he had roused Kentucky's wrath by the pedantic and, as the Court itself was presently forced to admit, unworkable decision in Green vs. Biddle. Then on the other hand, the nationalism of this period was of that negative kind which was better content to worship the Constitution than to make a really serviceable application of the national powers. After the War of 1812 the great and growing task which confronted the rapidly expanding nation was that of providing adequate transportation, and had the old federalism from which Marshall derived his doctrines been at the helm, this task wo

to reform, but to maintain a definite status quo. The Constitution defined a status quo the fundamental principles of which Marshall considered sacred. At the same time, even his obstinate

ot prevent a state officer from being sued for acts done in excess of his rightful powers. He also reiterated and amplified the principles of M'Culloch vs. Maryland. Three years later he gave his opinions in Brown vs. Maryland and Ogden vs. Saunders. 2 In the former Marshall's opinion was dissented from by a single associate, but in the latter the Chief Justice found himself for the first and only time in his entire incumbency in

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State may erect a dam across navigable waters of the United States for local purposes 1; that the mere grant of a charter to a corporation does not prevent the State from taxing such corporation on its franchises, notwithstanding that "the power to tax involves the power to destroy" 2; that the Federal Courts have no right to set a st

d Creek Marsh Company

vs. Billings (18

9), 2 Peters, 380; and Watson v

ltimore (1833),

f Justice's remarks in Briscoe vs

except his own. The West and Southwest, the pocket boroughs of the new Administration, were now deep in land speculation and clamorous for financial expedients which the Constitution banned. John Taylor of Caroline had just finished his task of defining the principles of constitutional construction which were requisite to convert t

stitution would be difficult to imagine. Yet Marshall's decision setting aside the act was followed by a renewed effort to procure the repeal of Section XXV of the Judiciary Act. The discussion of the proposal threw into interesting contrast two points of view. The opponents of this section insisted upon regarding constitutional cases as controversies between the United States and the St

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to the United States Supreme Court was hanged in defiance of a writ of error from the Court. In Cherokee Nation vs. Georgia, the Court itself held that it had no jurisdiction. Finally, in 1832, in Worcester vs. Georgia, 1 the Court was confronted squarely with the question of the validity of the Geo

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government even among ourselves. The Union has been prolonged this far by miracles." A personal consideration sharpened his apprehension. He saw old age at hand and was determined "not to hazard the disgrace of continuing in office a mere inefficient page

he wrote Story, toward the end of 1834, "the present is gloomy enough; and the future presents no cheering prospect. In the South ... those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the

he French statesman, visited the United States just as the rough frontier democracy was coming into its own. Only through the Supreme Court, in his opinion, were the forces of renewal and growth thus liberated to be kept within the bounds set by existing institutions. "The peace, the prosperity, and the very existence of the Union," he wrote, "are vested in the hands of the seven Federal judges. Without them the Constitution would be a dead letter: the Executive appeals to them for assistance against the encroachments of the l

cial question. Hence all parties are obliged to borrow in their daily controversies the ideas, and even the language peculiar to judicial proceedings.... The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of law, which i

in the past has so characterized the course of discussion and legislation in America, is traceable to origins long antedating Marshall's chief justiceship. On the other hand, there is no public caree