The Tenets Of Nationalism
"John Marshall stands in history as one of that small group of men who
have founded States. He was a nation-maker, a state-builder. His
monument is in the history of the United States and his name is written
upon the Constitution of his country." So spoke Senator Lodge, on John
Marshall Day, February 4, 1901. "I should feel a ... doubt," declared
Justice Holmes on the same occasion, "whether, after Hamilton and the
Constitution itself, Marshall'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
anything different. None the less it was no ordinary skill and courage
which, assisted by great office, gave enduring definition to the
purposes of the Constitution at the very time when the whole trend of
public opinion was setting in most strongly against them. It must not be
forgotten that Hamilton, whose name Justice Holmes invokes in his
somewhat too grudging encomium of Marshall, had pronounced the
Constitution "a frail and worthless fabric."
Marshall's own outlook upon his task sprang in great part from a
profound conviction of calling. He was thoroughly persuaded that he knew
the intentions of the framers of the Constitution--the intentions which
had been wrought into the instrument itself--and he was equally
determined that these intentions should prevail. For this reason he
refused to regard his office merely 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 probable result
that it would never again have been heard of outside the law courts. To
take a timid or obscure way to a merely tentative goal would have been
at variance equally with Marshall's belief in his mission and with his
instincts as a great debater. Hence he forged his weapon--the obiter
dictum--by whose broad strokes was hewn the highroad of a national
destiny.
Marshall's task naturally was not performed in vacuo: he owed much to
the preconceptions of his contemporaries. His invariable quest, as
students of his opinions are soon aware, was for the axiomatic, for
absolute principles, and in this inquiry he met the intellectual demands
of a period whose first minds still owned the sway of the syllogism and
still loved what Bacon called the "spacious liberty 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 in this way Marshall was able to
build up a body of thought the internal consistency of which, even when
it did not convince, yet baffled the only sort of criticism which
contemporaries were disposed to apply. Listen, for instance, to the
despairing cry of John Randolph of Roanoke: "All wrong," said he of one
of Marshall's opinions, "all wrong, but no man in the United States can
tell why or wherein."
Marshall found his first opportunity to elaborate the tenets of his
nationalistic creed in the case of M'Culloch vs. Maryland, which was
decided at the same term with the Dartmouth College case and that of
Sturges vs. Crowinshield--the greatest six weeks in 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 further one whether the United States had in
the first place the right to charter the Bank and to authorize it to
establish branches within the States. The outcome turned on the
interpretation to be given the "necessary and proper" clause of the
Constitution.
The last two questions were in 1819 by no means novel. In the Federalist
itself Hamilton had boldly asked, "Who is to judge of the necessity and
propriety of the laws to be passed for executing the powers of the
Union?" and had announced that "the National Government, like every
other, must judge in the first instance, of the proper exercise of its
powers, and its constituents in the last," a view which seems hardly to
leave room even for judicial control. Three years later as Secretary of
the Treasury, Hamilton had brought forward the proposal which soon led
to 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 Government should enjoy a wide range of choice in the selection
of means for carrying out its enumerated powers. Jefferson, on the other
hand, maintained that the "necessary and proper" clause was a
restrictive clause, meant to safeguard the rights of the States, that a
law in order to be "necessary and proper" must be both "necessary" and
"proper," and that both terms ought to be construed narrowly.
Jefferson's opposition, however, proved unavailing, and the banking
institution which was created continued till 1811 without its validity
being once tested in the courts.
The second Bank of the United States, whose branch Maryland was now
trying to tax, received its charter in 1816 from President Madison. Well
might John Quincy Adams exclaim that the "Republicans had outfederalized
the Federalists!" Yet the gibe was premature. The country at large was
as yet blind to the responsibilities of nationality. That vision of
national unity which indubitably underlies the Constitution was after
all the vision of an aristocracy conscious of a solidarity of interests
transcending state lines. It is equally true that until the Civil War,
at the earliest, the great mass of Americans still felt themselves to be
first of all citizens of their particular States. Nor did this
individualistic bias long remain in want of leadership capable of 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 regarded as fully as authoritative as the original
instrument. This recognition of state sovereignty was, indeed, somewhat
delayed by the federalization of the Republican party in consequence of
the capture of the National Government by Virginia in 1800. But in 1819
the march toward dissolution and civil war which had begun at the
summons of Jefferson was now definitely resumed. This was the year of
the congressional struggle over the admission of Missouri, the most
important result of which was the discovery by the slave owners that the
greatest security of slavery lay in the powers of the States and that
its greatest danger lay in those of the National Government. Henceforth
the largest property interest of the country stood almost solidly behind
State Rights.
It was at this critical moment that chance presented Marshall with the
opportunity to place the opposing doctrine of nationalism on the high
plane of judicial decision. The arguments in the Bank case, ¹ which
began on February 22, 1819, and lasted nine days, brought together a
"constellation of lawyers" such as had never appeared before in a single
case. The Bank was represented by Pinkney, Webster, and Wirt; the State,
by Luther Martin, Hopkinson, and Walter Jones of the District of
Columbia bar. In arguing 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 from the trunk to a
considerable distance, then drop to the earth, where they take root and
become trees from which also other branches shoot ..., until gradually a
vast surface is covered, and everything perishes in the spreading
shade." But even granting that Congress did have the right to charter
the Bank, still that fact would not exempt the institution from taxation
by any State within which it held property. "The exercise of the one
sovereign power cannot be controlled by the exercise of the other."
¹ M'Culloch vs. Maryland (1819), 4 Wheaton, 316.
On the other side, Pinkney made the chief argument in behalf of the
Bank. "Mr. Pinkney," says Justice Story, "rose on Monday to conclude the
argument; he spoke all that day and yesterday and will probably conclude
to-day. I never 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 brilliant and sparkling. He spoke like
a great statesman and patriot and a sound constitutional lawyer. All the
cobwebs of sophistryship and metaphysics about State Rights and State
Sovereignty he brushed away with a mighty besom."
Pinkney closed on the 3d of March, and on the 6th Marshall handed down
his most famous opinion. He condensed Pinkney's three-day argument into
a pamphlet which may be easily read by the instructed layman in half an
hour, for, as is invariably the case with Marshall, his condensation
made for greater clarity. In this opinion he also gives evidence, in
their 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 days with Pope; the developing momentum of his argument; above
all, his audacious use of the obiter dictum. Marshall's later opinion in
Gibbons vs. Ogden is, it is true, in some respects a greater
intellectual performance, but it does not equal this earlier opinion in
those qualities of form which attract the amateur and stir the
admiration of posterity.
At the very outset of his argument in the Bank case Marshall singled out
the question the answer to which must control all interpretation of the
Constitution: Was the Constitution, as contended by counsel for
Maryland, "an act of sovereign and independent States" whose political
interests must be jealously safeguarded in its construction, or, was it
an emanation from the American people and designed for their benefit?
Marshall answered that the Constitution, by its own declaration, was
"ordained and established" in the name of the people, "in order to form
a more perfect union, establish justice, insure domestic tranquillity,
and secure the blessings of liberty to themselves and their posterity."
Nor did he consider 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 granted by them, and are to be
exercised on them, and for their benefit." And what was the nature of
this Government? "If any one proposition could command the universal
assent of mankind we might expect it would be this: that the government
of the Union, though limited in its powers, is supreme within the sphere
of its action. This would seem to result necessarily from its nature. It
is the government of all; its powers are delegated by all; it represents
all and acts for all." However the question had not been left to reason.
"The people have in express terms decided it by saying: 'This
Constitution and the laws of the United States which shall be made in
pursuance thereof ... shall be the supreme Law of the Land.'"
But a Government which is supreme must have the right to choose the
means by which to make its supremacy effective; and indeed, at this
point again the Constitution comes to the aid of reason by declaring
specifically that Congress may make all laws "necessary and proper" for
carrying into execution any 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 "absolutely." "Such is the
character of human language," rejoins the Chief Justice, "that no word
conveys to the mind in all situations, one single definite idea," and
the word "necessary," "like others, is used in various senses," so that
its context becomes most material in determining its significance.
And what is its context on this occasion? "The subject is the execution
of those great powers on which the welfare of a nation essentially
depends." The provision occurs "in a Constitution intended to endure for
ages to come and consequently to be adapted to the various crises of
human affairs." The purpose of the clause 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 the Constitution, if that instrument be not a splendid bauble.... Let
the end be legitimate, let it be within the scope of the Constitution
and all means which are appropriate, which are plainly adapted to that
end, which are not prohibited but consist with the letter and spirit of
the Constitution, are constitutional."
But was the Act of Maryland which taxed the Bank in conflict with the
Act of Congress which established it? If so, must the State yield to
Congress? In approaching this question Marshall again laid the basis for
as sweeping a decision as possible. The terms in which the Maryland
statute was couched indicated clearly that it was directed specifically
against the Bank, and it might easily have been set aside on that
ground. But Marshall went much further and laid down the principle that
the instrumentalities of the National Government are never subject to
taxation by the States in any form whatsoever, and for two reasons. In
the first place, "those means are not given by the people of a
particular State ... but by the people of all the States. They 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 measures of another, which other,
with respect to those very measures is declared to be supreme over that
which exerts the control, are propositions not to be denied." Nor indeed
is the sovereignty of the State confined to taxation. "That is not the
only mode in which it might be displayed. The question is in truth, a
question of supremacy, and if the right of the States to tax the means
employed by the General Government be conceded, the declaration that the
Constitution and the laws made in pursuance thereof shall be supreme law
of the land, is empty and unmeaning declamation.... We are unanimously
of opinion," concluded the Chief Justice, "that the law ... of Maryland,
imposing a tax on the Bank of the United States is unconstitutional and
void."
Five years later, in the case of Gibbons vs. Ogden, ¹ known to
contemporaries as the "Steamboat case," Marshall received the
opportunity to apply his principles of constitutional construction to
the power of Congress to regulate "commerce among the States." For a
quarter of a century Robert R. Livingston and Robert Fulton and their
successors had enjoyed 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 which made the case the more critical was that
New Jersey and Connecticut had each passed retaliatory statutes
excluding from their waters any vessel licensed under the
Fulton-Livingston monopoly. The condition of interstate commercial
warfare which thus threatened was not unlike that which had originally
operated so potently to bring about the Constitution.
¹ 9 Wheaton, 1.
The case of Gibbons vs. Ogden was argued in the early days of February,
1824, with Attorney-General Wirt and Daniel Webster against the grant,
while two famous New York lawyers of the day, Thomas Addis Emmet,
brother of the Irish patriot, and Thomas J. Oakley, acted as Ogden's
counsel. The arguments have the importance necessarily attaching to a
careful examination of a novel legal question of the first magnitude by
learned and acute minds, but some of the claims that have been made for
these arguments, and especially for Webster's effort, hardly sustain
investigation. 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 argument, which in turn was only an elaboration of Chancellor
Kent's opinion upon the same subject in the New York courts. ¹ In other
words, this was one of those cases in which Marshall's indebtedness to
counsel was far less for ideas than for the stimulation which his own
powers always received from discussion; and the result is his
profoundest, most statesmanlike opinion, from whose doctrines the Court
has at times deviated, but only to return to them, until today it is
more nearly than ever before the established law on the many points
covered by its dicta.
¹ See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also Kent's
Commentaries, I, 432-38.
Marshall pronounced the Fulton-Livingston monopoly inoperative so far as
it concerned vessels enrolled under the Act of Congress to engage in the
coasting trade; but in arriving at this very simple result his opinion
takes the broadest possible range. At the very outset Marshall flatly
contradicts Kent's proposition that the powers of the General
Government, as representing a grant by sovereignties, must be strictly
construed. The Constitution, says he, "contains an enumeration of powers
expressly granted by the people to their government," 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 phraseology. "The grant does not convey
power which might be beneficial to the grantor if retained by himself
... but is an investment of power for the general advantage in the hands
of agents selected for the purpose, which power can never be exercised
by the people themselves, but must be placed in the hands of agents or
remain dormant." In no other of his opinions did Marshall so clearly
bring out the logical connection between the principle of liberal
construction of the Constitution and the doctrine that it is an
ordinance of the American people.
Turning then to the Constitution, Marshall asks, "What is commerce?"
"Counsel for appellee," he recites, "would limit it to traffic, to
buying and selling," to which he answers that "this would restrict a
general term ... to one of its significations. Commerce," he continues,
"undoubtedly is traffic, but it is something more--it is intercourse,"
and so includes navigation. And what is the power of Congress over
commerce? "It is the power to regulate, that is, the power to prescribe
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 having in
its constitution the same restrictions on the exercise of power as are
found in the Constitution of the United States." The power, therefore,
is not to be confined by state lines but acts upon its subject-matter
wherever it is to be found. "It may, of consequence, pass the
jurisdictional line of New York and act upon the very waters to which
the prohibition now under consideration applies." It is a power to be
exercised within the States and not merely at their frontiers.
But was it sufficient for Marshall merely to define the power of
Congress? Must not the power of the State also be considered? At least,
Ogden's attorneys had argued, the mere existence in Congress of the
power to regulate commerce among the States did not prevent New York
from exercising the same power, through legislation operating upon
subject matter within its own boundaries. No doubt, he concedes, the
States 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
monopoly in exercise of this power, in which case its validity would
depend upon its not conflicting with an Act of Congress regulating
commerce. For should such conflict exist, the State enactment, though
passed "in the exercise of its acknowledged sovereignty," must give
place in consequence of the supremacy conferred by the Constitution upon
all acts of Congress in pursuance of it, over all state laws whatsoever.
The opinion then proceeds to the consideration of the Act of Congress
relied upon by Gibbons. This, Ogden's attorneys contended, merely
conferred the American character upon vessels already possessed of the
right to engage in the coasting trade; Marshall, on the contrary, 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's power
extended to the carriage of passengers as well as of goods and to
vessels propelled by steam as well as to those driven by wind. "The one
element," said he, "may be as legitimately used as the other for every
commercial purpose authorized by the laws of the Union."
Two years later, in the case of Brown vs. Maryland, ¹ Marshall laid down
his famous doctrine that so long as goods introduced into a State in the
course of foreign trade remain in the hands of the importer and in the
original package, they are not subject to taxation by the State. This
doctrine is interesting for two reasons. In the first place, it implies
the 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, becomes in Brown vs. Maryland a ground of decision. It is a
principle which has proved of the utmost importance in keeping the field
of national power clear of encumbering state legislation against the day
when Congress should elect to step in and assume effective control. Nor
can there be much doubt that the result was intended by the framers of
the Constitution.
¹ 12 Wheaton, 419.
In the second place, however, from another point of view this "original
package doctrine" is only an extension of the immunity from state
taxation established in M'Culloch vs. Maryland for instrumentalities of
the National Government. It thus reflects the principle implied by that
decision: where power exists to any degree or for any purpose, it exists
to every degree and for every purpose; or, to quote Marshall's own words
in Brown vs. Maryland, "questions of power do not depend upon the degree
to which it may be exercised; 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 Court
has hitherto always followed Marshall's bolder method. Thus Congress may
use its taxing power to drive out unwholesome businesses, perhaps even
to regulate labor within the States, and it may close the channels of
interstate and foreign commerce to articles deemed by it injurious to
the public health or morals. ² To date this discrepancy between the
methods employed by the Court in passing upon the validity of
legislation within the two fields of state and national power has
afforded the latter a decided advantage.
¹ See Justice Bradley's language in 122 U. S., 326; also the more recent
case of Western Union Telegraph Company vs. Kan., 216 U. S., 1.
² See 195 U. S., 27; 188 U. S., 321; 227 U. S., 308. Cf. 247 U. S., 251.
The great principles which Marshall developed in his interpretation of
the Constitution from the side of national power and which after various
ups and downs may be reckoned as part of the law of the land today, were
the following:
1. The Constitution is an ordinance of the people of the United States,
and not a compact of States.
2. Consequently it is to be interpreted with a view to securing a
beneficial use of the powers which it creates, not with the purpose of
safeguarding the prerogatives of state sovereignty.
3. The Constitution was further designed, as near as may be, "for
immortality," and hence was to be "adapted to the various crises of
human affairs," to be kept a commodious vehicle of the national life and
not made the Procrustean bed of the nation.
4. While the government which the Constitution established is one of
enumerated powers, as to those powers it is a sovereign government, both
in its choice of the means by which to exercise its powers and in its
supremacy over all colliding or antagonistic powers.
5. The power of Congress to regulate commerce is an exclusive power, so
that the States may not intrude upon this field even though Congress has
not acted.
6. The National Government and its instrumentalities are present within
the States, not by the tolerance of the States, but by the supreme
authority of the people of the United States. ¹
¹ For the application of Marshall's canons of constitutional
interpretation in the field of treaty making, see the writer's National
Supremacy (N. Y., 1913). Chaps. III and IV.
Of these several principles, the first is obviously the most important
and to a great extent the source of the others. It is the principle of
which Marshall, 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 in his noble plea at the close of the case of
Gibbons vs. Ogden for a construction of the Constitution capable of
maintaining its vitality and usefulness:
Powerful and ingenious minds [run his words], taking as postulates that
the powers expressly granted to the Government of the Union are to be
contracted by construction into the narrowest possible compass and that
the original powers of the States are to be retained 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 perplex the understanding as to
obscure principles which were before thought quite plain, and induce
doubts where, if the mind were to pursue its own course, none would be
perceived. In such a case, it is peculiarly necessary to recur to safe
and fundamental principles.