MARSHALL’S CONSTITUTIONAL OPINIONS
This is not the place for any detailed consideration of Marshall’s
decisions. But it would be a strange omission to leave out all
consideration of what played so great a part in his life. I must draw,
therefore, upon the patience of the reader, while some points are
mentioned relating to that class of his opinions which is at once the
most important and of the widest interest, viz., those given in
constitutional cases. If these matters seem to any reader dull or
unintelligible, he must be allowed full liberty to pass them by; but I
cannot wholly omit them.
The keynote to Marshall’s leading constitutional opinions is that of
giving free scope to the power of the national government. These leading
opinions may be divided into three classes: _First_, such as discuss the
nature and reach of the Federal Constitution, and the general relation
of the federal government to the States. Of this class, McCulloch _v._
Maryland, probably his greatest opinion, is the chief illustration.
_Second_, those cases which are concerned with the specific restraints
and limitations upon the States. To this class may be assigned Fletcher
_v._ Peck, the bankruptcy cases of Sturgis _v._ Crowninshield and Ogden
_v._ Saunders, and Dartmouth College _v._ Woodward. _Third_, such as
deal with the general theory and principles of constitutional law. There
is little of this sort; except as it is incidentally touched, perhaps
the only case is Marbury _v._ Madison.
If we look at these great cases merely with reference to their effect
upon the history and development of the country, they are of the very
first importance. When one names Marbury _v._ Madison, the first case
where the Supreme Court held an act of Congress invalid, and the only
one in Marshall’s time; Fletcher _v._ Peck and Dartmouth College _v._
Woodward, where legislative grants and an act of incorporation are held
to be contracts, protected by the United States Constitution against
state legislation impairing their obligation; and New Jersey _v._
Wilson, holding that a legislative exemption from taxation is also a
contract protected in the same way;--one sees the tremendous importance
of the decisions.
Of coarse we are not to confound this powerful effect of a judgment, or
the moral approbation with which we may be inclined to view it, with the
intrinsic merit of the reasoning or the legal soundness of the
conclusions. It is not uncommon to speak of the reasoning in Marbury
_v._ Madison and Dartmouth College _v._ Woodward with the greatest
praise. But neither of these opinions is entitled to rank with
Marshall’s greatest work. The very common view to which I have alluded
is partly referable to the fallacy which Wordsworth once remarked upon
when a friend mentioned “The Happy Warrior” as being the greatest of his
poems. “No,” said the poet, “you are mistaken; your judgment is affected
by your moral approval of the lines.”
If we regard at once the greatness of the questions at issue in the
particular case, the influence of the opinion, and the large method and
clear and skillful manner in which it is worked out, there is nothing so
fine as the opinion in McCulloch _v._ Maryland, given at the February
term, 1819. The questions were, first, whether the United States could
constitutionally incorporate a bank; and, second, if it could, whether a
State might tax the operations of the bank; as, in this instance, by
requiring it to use stamped paper for its notes. The bank was sustained
and the tax condemned.
In working this out, it was laid down that while the United States is
merely a government of enumerated powers, and these do not in terms
include the granting of an incorporation, yet it is a government whose
powers, though limited in number, are in general supreme, and also
adequate to the great national purposes for which they are given; that
these great purposes carry with them the power of adopting such means,
not prohibited by the Constitution, as are fairly conducive to the end;
and that incorporating a bank is not forbidden, and is useful for
several ends. Further, the paramount relation of the national
government, whose valid laws the Constitution makes the supreme law of
the land, forbids the States to tax, or to “retard, impede, burden, or
in any way control” the operations of the government in any of its
instrumentalities.
This was the opinion of a unanimous court, in which five out of the
seven judges had been nominated by a Republican President. But it caused
great excitement at the South. On March 24, 1819, Marshall wrote from
Richmond to Judge Story: “Our opinion in the bank case has roused the
sleeping spirit of Virginia, if indeed it ever sleeps. It will, I
understand, be attacked in the papers with some asperity, and as those
who favor it never write for the public it will remain undefended, and
of course be considered as _damnably heretical_.” Again, two months
later, “The opinion in the bank case continues to be denounced by the
Democracy of Virginia.... If the principles which have been advanced on
this occasion were to prevail the Constitution would be converted into
the old Confederation.”
Another great opinion, of the same class, and also bitterly attacked,
was given in the case of Cohens _v._ Virginia, in 1821. This case came
up on a writ of error from a local court at Norfolk. Cohens had been
convicted of selling lottery tickets there, contrary to the statute of
Virginia. He had set up as a defense an act of Congress providing for
drawing lotteries in the city of Washington, and insisted that this
authorized his selling tickets in Virginia. When the case reached the
Supreme Court of the United States, the counsel for the State first
denied the jurisdiction of that court, on the ground, among others, that
the Constitution allowed no such appeal from a state court, and that the
Judiciary Act of 1789 was unconstitutional in purporting to authorize
it. In an elaborate opinion by Marshall, one of his greatest efforts,
these contentions were negatived. When afterwards, the case came to be
argued on the merits, the decision below was sustained, on the ground
that the act of Congress did not purport to authorize the sale of
tickets in any State which forbade the sale of them.
Here again the court was unanimous; and it was composed of the same
judges who decided McCulloch _v._ Maryland. But the reception of Cohens
_v._ Virginia at the South was even worse than that accorded the other
case. Judge Roane, of the Court of Appeals in Virginia, attacked the
opinion anonymously in the newspapers, with what Marshall called
“coarseness and malignity.” Jefferson, also, bitterly objected to it.
Of two other cases belonging in the same class of Marshall’s opinions,
viz., Gibbons _v._ Ogden, in 1824, and Brown _v._ Maryland, in 1827, it
is enough here to say that they deal with one of the most difficult and
perplexed topics of constitutional law, namely, the coördination of the
functions of the national and state governments, in regard to the power
granted to Congress to regulate foreign and interstate commerce, a
subject of great importance and difficulty, on which the decisions of
the Supreme Court are now and long have been involved in much confusion
and uncertainty. Gibbons _v._ Ogden brought into question the
constitutionality of a law of New York granting to Fulton, the inventor,
the sole right of navigating the waters of New York by steam. The grant
had been sustained by Chancellor Kent and by the New York Court of
Appeals; but these decisions were now overruled in a famous and powerful
opinion. In two other cases on this subject, also of great importance,
Marshall gave leading opinions. It may fairly be thought that his
treatment of the general question involved in these cases, instructive
as it was, was yet less fruitful and less far-seeing than in most of his
other great cases.
He was now in a region pretty closely connected with the second class of
cases, above named; a set of cases, where even so great a man as
Marshall erred sometimes, from interpreting too literally and too
narrowly the restraints upon the States. It was natural, in giving full
scope to the authority of the general government, that he should be
inclined to apply, with their fullest force and operation, these clauses
of restraint and prohibition. His great service to the country and his
own generation was that of planting the national government on the
broadest and strongest foundations. That, as he rightly conceived, was
the one chief necessity of his time. In doing this, when it came to
considering the reach that must also be allowed to the States, and just
how the coördination of the two systems should be worked out, probably
no one man, no one court, no human wisdom was adequate, then, to mapping
it all out. Time alone, and a long succession of men, after some ages of
experience, might suffice for that. The wisdom of those who made the
Constitution, as it has lately been said, was mainly shown “in the
shortness and generality of its provisions, in its silence, and its
abstinence from petty limitations.” But, as time went on, definitions
and specifications had to be made and applied; silence, abstinence,
generality, were no longer adequate. And in the class of cases, now
referred to, great and far-reaching as were the results of Marshall’s
labor, and unqualifiedly as they are often praised, one may perceive, as
I venture to think, a less comprehensive and statesmanlike grasp of the
problems and their essential conditions than are found in some other
parts of his work.
And so, when the Chief Justice, in 1812, held, without argument, that a
grant of land by a State, with a privilege of exemption from taxation,
contained a contract against future taxation, protected, even in the
hands of subsequent holders, by the constitutional provisions against
impairing the obligation of contracts, something was done which would
probably not be done to-day, if the question came up for the first time.
Certainly the soundness of the doctrine has been frequently denied by
judges of the Supreme court, and it has only survived through the device
of construing all grants in the narrowest manner. “Yielding,” says the
Court in a recent case, “to the doctrine that immunity from taxation
may be granted, that point being already adjudged, it must be considered
as a personal privilege, not extending beyond the immediate grantee,
unless otherwise so declared in express terms.” And again the court has
recently remarked on the “well-settled rule that exemptions from
taxation are ... not to be extended beyond the exact and express
language used, construed _strictissimi juris_.”
Again, in Dartmouth College _v._ Woodward, in 1819, when it was held
that a legislative grant of incorporation was a contract protected by
the same clause of the Constitution, something was done from which the
court was subsequently obliged to recede in an important degree. Acts of
incorporation for the manufacture of beer, for carrying on
slaughter-houses, for dealing in offal, and for conducting a lottery,--a
reputable business in 1819, when the Dartmouth College case was
decided,--such acts as these have been treated by the Supreme Court as
not being thus protected. It is held that no legislative body can
contract to part with the full power to provide for the health, morals,
and safety of the community. Such things, it is said, are not the proper
subject-matter of legislative contract,--a doctrine which it has been
widely thought should, originally, have been applied to all acts of
incorporation. “The State,” says a distinguished judge, and writer on
constitutional law, in speaking of the Dartmouth College doctrine and
its development, “was stripped, under this interpretation, of
prerogatives that are commonly regarded as inseparable from sovereignty,
and might have stood, like Lear, destitute before her offspring, had not
the police power been dexterously declared paramount, and used as a
means of rescinding improvident grants.”[34]
In the great bankruptcy cases of Sturgis _v._ Crowninshield and Ogden
_v._ Saunders, where it was held, in 1819 and 1827, that the
constitutional provision as to impairing the obligation of contracts
forbade the State to enact an insolvency law which should discharge a
person from liability on a contract made before the law; and then again
that it did not forbid the same thing as touching a contract made after
the law, Marshall, who gave the opinion in the first case, put it on a
ground equally applicable to the second; and so, in the second case,
gave a dissenting opinion. The obligation of the contract, he said,
comes from the agreement of the party; it does not arise from the law of
the State at the time it was made, entering into or operating on the
contract. But this doctrine and this reasoning were justly disallowed.
Finally, in 1830, in Craig _v._ Missouri, Marshall gave the opinion that
certain certificates issued by a State in return for deposits, and
intended to circulate as money, were bills of credit; and as such
forbidden by the Constitution. There were three dissenting opinions; and
soon after Marshall’s death, a different doctrine was established by the
court,--wisely it would seem,--and has ever since been maintained.[35]
Coming now to the third class of cases mentioned above, that which
deals with the fundamental conceptions and theory of our American
doctrine of constitutional law, Marbury _v._ Madison is the chief case.
In speaking of that case I have purposely delayed until this point any
reference to this aspect of it. While, historically, this part of it is
what gives the case its chief importance, yet it occupies only about a
quarter of the opinion.
In outline, the argument there presented is as follows: The question is
whether a court can give effect to an unconstitutional act of the
legislature. This question is answered, as having little difficulty, by
referring to a few “principles long and well established.” (1) The
people, in establishing a written constitution and limiting the powers
of the legislature, intend to control it; else the legislature could
change the constitution by an ordinary act. (2) If a superior law is not
thus changeable, then an unconstitutional act is not law. This theory,
it is added, is essentially attached to a written constitution. (3) If
the act is void, it cannot bind the court. The court has to say what
the law is, and in saying this must judge between the Constitution and
the act. Otherwise, a void act would be obligatory; and this would be
saying that constitutional limits upon legislation may be transgressed
by the legislature at pleasure, and thus these limits would be reduced
to nothing. (4) The language of the Federal instrument gives judicial
power in “cases arising under the Constitution.” Judges are thus in
terms referred to the Constitution. They are sworn to support it and
cannot violate it. And so, it is said, in conclusion, the peculiar
phraseology of the instrument confirms what is supposed to be essential
to all written constitutions, that a law repugnant to it is void, and
that the courts, as well as other departments, are bound by the
constitution.
The reasoning is mainly that of Hamilton, in his short essay of a few
years before in the “Federalist.” The short and dry treatment of the
subject, as being one of no real difficulty, is in sharp contrast with
the protracted reasoning of McCulloch _v._ Maryland, Cohens _v._
Virginia, and other great cases; and this treatment is much to be
regretted. Absolutely settled as the general doctrine is to-day,
and sound as it is, when regarded as a doctrine for the
descendants of British colonists, there are grave and far-reaching
considerations--such, too, as affect to-day the proper administration of
this extremely important power--which are not touched by Marshall, and
which must have commanded his attention if the subject had been deeply
considered and fully expounded according to his later method. His
reasoning does not answer the difficulties that troubled Swift,
afterwards chief justice of Connecticut, and Gibson, afterwards chief
justice of Pennsylvania, and many other strong, learned, and thoughtful
men; not to mention Jefferson’s familiar and often ill-digested
objections.
It assumes as an essential feature of a written constitution what does
not exist in any one of the written constitutions of Europe. It does not
remark the grave distinction between the power of disregarding the act
of a coördinate department, and the action of a federal court in dealing
thus with the legislation of the local States; a distinction important
in itself, and observed under the written constitutions of Europe,
which, as I have said, allow this power in the last sort of case, while
denying it in the other.
Had Marshall dealt with this subject after the fashion of his greatest
opinions he must also have considered and passed upon certain serious
suggestions arising out of the arrangements of our own constitutions and
the exigencies of the different departments. All the departments, and
not merely the judges, are sworn to support the Constitution. All are
bound to decide for themselves, in the first instance, what this
instrument requires of them. None can have help from the courts unless,
in course of time, some litigated case should arise; and of some
questions it is true that they never can arise in the way of litigation.
What was Andrew Johnson to do when the Reconstruction Acts of 1867 had
been passed over his veto by the constitutional majority, while his veto
had gone on the express ground, still held by him, that they were
unconstitutional? He had sworn to support the Constitution. Should he
execute an enactment which was contrary to the Constitution, and so
void? Or should he say, as he did say to the court, through his
Attorney-General, that “from the moment [these laws] were passed over
his veto, there was but one duty, in his estimation, resting upon him,
and that was faithfully to carry out and execute these laws”?[36] And
why is he to say this?
Again, what is the House of Representatives to do when a treaty, duly
made and ratified by the constitutional authority, namely, the President
and Senate, comes before it for an appropriation of money to carry it
out? Has the House, under these circumstances, anything to do with the
question of constitutionality? If it thinks the treaty unconstitutional,
and so void, can it vote to carry it out? If it can, how is this
justified?
Is the situation necessarily different when a court is asked to enforce
a legislative act? The courts are not strangers to the case of political
questions, where they must refuse to interfere with the acts of the
other departments,--as in the case relating to Andrew Johnson just
referred to; and in dealing with what are construed to be merely
directory provisions of the Constitution; and with the cases, well
approved in the Supreme Court of the United States, where courts refuse
to consider whether provisions of a constitution have been complied
with, which require certain formalities in passing laws,--accepting as
final the certificate of the officers of the political departments. A
question, passed upon by those departments, is thus refused any
discussion in the judicial forum, on the ground, to quote the language
of the Supreme Court, that “the respect due to coequal and independent
departments requires the judicial department to act upon this
assurance.”
So far as any necessary conclusion is concerned, it might fairly have
been said, with us, as it is said in Europe, that the real question in
all these cases is not whether the act is constitutional, but whether
its constitutionality can properly be brought in question before a given
tribunal. Could Marshall have had to deal with this great question, in
answer to Chief Justice Gibson’s powerful opinion in Eakin _v._ Raub, in
1825,[37] instead of deciding it without being helped or hindered by any
adverse argument at all, as he did, we should have had a far higher
exhibition of his powers than the case now affords.[38]