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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 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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