5: The Tenets Of Nationalism
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"John Marshall stands in history as one of that small group of
men who have founded States. He was a nationmaker, 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 out-federalized 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 case1 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 figtree 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."
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 "buys," "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 far 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,2 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.
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.3 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.
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,4 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.
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.5 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.6 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.
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.7
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."
__________
1 M'Culloch vs. Maryland (1819), 4 Wheaton, 316.
2 9 Wheaton, 1.
3See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also
Kent's Commentaries, I, 432-38.
4 12 Wheaton, 419.
5See 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.
6See 195 U.S., 27; 188 U.S., 321; 227 U.S., 308. Cf. 247 U.S.,
251.
7 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.
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