9: Epilogue
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In the brief period of twenty-seven months following the death of
Marshall the Supreme Court received a new Chief Justice and five
new Associate Justices. The effect of this change in personnel
upon the doctrine of the Court soon became manifest. In the
eleventh volume of Peters's "Reports," the first issued while
Roger B. Taney was Chief Justice, are three decisions of
constitutional cases sustaining state laws which on earlier
argument Marshall had assessed as unconstitutional. The first of
these decisions gave what was designated "the complete,
unqualified, and exclusive" power of the State to regulate its
"internal police" the right of way over the "commerce clause"1;
the second practically nullified the constitutional prohibition
against "bills of credit" in deference to the same high
prerogative2; the third curtailed the operation of the
"obligation of contracts" clause as a protection of public
grants.3 Story, voicing "an earnest desire to vindicate his
[Marshall's] memory from the imputation of rashness," filed
passionate and unavailing dissents. With difficulty he was
dissuaded from resigning from a tribunal whose days of influence
he thought gone by.4 During the same year Justice Henry
Baldwin, another of Marshall's friends and associates, published
his "View of the Constitution," in which he rendered high praise
to the departed Chief Justice's qualifications as expounder of
the Constitution. "No commentator," he wrote, "ever followed the
text more faithfully, or ever made a commentary more accordant
with its strict intention and language.... He never brought
into action the powers of his mighty mind to find some meaning in
plain words...above the comprehension of ordinary minds....
He knew the framers of the Constitution, who were his
compatriots," he was himself the historian of its framing,
wherefore, as its expositor, "he knew its objects, its
intentions." Yet in the face of these admissions, Baldwin rejects
Marshall's theory of the origin of the Constitution and the
corollary doctrine of liberal construction. "The history and
spirit of the times," he wrote, "admonish us that new versions of
the Constitution will be promulgated to meet the varying course
of political events or aspirations of power."
But the radical impulse soon spent itself. Chief Justice Taney
himself was a good deal of a conservative. While he regarded the
Supreme Court rather as an umpire between two sovereignties than
as an organ of the National Government for the vigorous assertion
of its powers, which was Marshall's point of view, Taney was not
at all disposed to disturb the law as it had been declared by his
predecessor in binding decisions. Then, too, the development of
railroading and the beginning of immigration from Europe on a
large scale reawakened the interest of a great part of the nation
in keeping intercourse between the States untrammeled by local
selfishness; and in 1851 the Court, heeding the spirit of
compromise of the day, decisively accepted for the most important
category of cases Marshall's principle of the exclusive control
of interstate and foreign commerce by Congress.5
Still, until the eve of the Civil War, the theory of the
Constitution held by the great body of the people, North as well
as South, was that it was a compact of States. Then in December,
1860, South Carolina announced her secession from the Union.
Buchanan's message of the same month performed the twofold
service of refuting secession on State Rights principles and of
demonstrating, albeit unwittingly, how impossible it was
practically to combat the movement on the same principles.
Lincoln brought the North back to Marshall's position when he
remarked in his Inaugural Address: "Continue to execute all the
express provisions of our National Constitution, and the Union
will endure forever."
The Civil War has been characterized as "an appeal from the
judgments of Marshall to the arbitrament of war." Its outcome
restored the concept of the National Government as a territorial
sovereign, present within the States by the superior mandate of
the American People, and entitled to "execute on every foot of
American soil the powers and functions that belong to it."6 These
powers and functions are, moreover, today undergoing constant
enlargement. No one now doubts that in any clash between national
and state power it is national power which is entitled to be
defined first, and few persons question that it ought to be
defined in the light of Marshall's principle, that a Constitution
designed for ages to come must be "adapted to the various crises
of human affairs."
It is only when we turn to that branch of Constitutional Law
which defines governmental power in relation to private rights
that we lose touch with Marshall's principles. As we have seen,
he dealt in absolutes: either power was given to an unlimited
extent or it was withheld altogether. Today, however, the
dominant rule in this field of Constitutional Law is the "rule of
reason." In the last analysis, there are few private rights which
are not subordinate to the general welfare; but, on the other
hand, legislation which affects private rights must have a
reasonable tendency to promote the general welfare and must not
arbitrarily invade the rights of particular persons or classes.
Inasmuch as the hard and fast rules of an age when conditions of
life were simpler are no longer practicable under the more
complex relationships of modern times, there is today an
inevitable tendency to force these rules to greater flexibility.7
And this difference in the point of view of the judiciary
connotes a general difference of outlook which makes itself felt
today even in that field where Marshall wrought most enduringly.
The Constitution was established under the sway of the idea of
the balance of power, and with the purpose of effecting a
compromise among a variety of more or less antagonistic
interests, some of which were identified with the cause of local
autonomy, others of which coalesced with the cause of National
Supremacy. The Nation and the States were regarded as competitive
forces, and a condition of tension between them was thought to be
not only normal but desirable. The modern point of view is very
different. Local differences have to a great extent disappeared,
and that general interest which is the same for all the States is
an ever deepening one. The idea of the competition of the States
with the Nation is yielding to that of their cooperation in
public service. And it is much the same with the relation of the
three departments of Government. The notion that they have
antagonistic interests to guard is giving way to the perception
of a general interest guarded by all according to their several
faculties. In brief, whereas it was the original effort of the
Constitution to preserve a somewhat complex set of values by nice
differentiations of power, the present tendency, born of a surer
vision of a single national welfare, is toward the participation
of all powers in a joint effort for a common end.
But though Marshall's work has been superseded at many points,
there is no fame among American statesmen more strongly bulwarked
by great and still vital institutions. Marshall established
judicial review; he imparted to an ancient legal tradition a new
significance; he made his Court one of the great political forces
of the country; he founded American Constitutional Law; he
formulated, more tellingly than any one else and for a people
whose thought was permeated with legalism, the principles on
which the integrity and ordered growth of their Nation have
depended. Springing from the twin rootage of Magna Charta and the
Declaration of Independence, his judicial statesmanship finds no
parallel in the salient features of its achievement outside our
own annals.
__________
1 Milton vs. New York. 11 Peters, 102.
2Briscoe vs. Bank of Kentucky, 11 Peters, 257.
3Charles River Bridge Company vs. Warren Bridge Company, 11
Peters, 420.
4 He wrote Justice McLean, May 10, 1837: "There will not, I
fear, even in our day, be any case in which a law of a State or
of Congress will be declared unconstitutional; for the old
constitutional doctrines are fast fading away." "Life and Letters
of Joseph Story." vol. II, p. 272; see also p. 270, for
Chancellor Kent's unfavorable reaction to these decisions.
5Cooley vs. the Board of Wardens, 12 Howard, 299.
6Justice Bradley in ex parte Siebold, 100 U.S., 371.
7 Notwithstanding what is said above, it is also true that the
modern doctrine of "the police power" owes something to
Marshall's interpretation of the "necessary and proper" clause in
M'Culloch vs. Maryland, which is frequently offered nowadays as
stating the authoritative definition of "a fair legislative
discretion" in relation to private rights. Indeed this ingenious
transposition was first suggested in Marshall's day. See Cowen
(N. Y.), 585. But it never received his sanction and does not
represent his point of view.
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