The Historical Text Archive: Electronic History Resources, online since 1990 Bringing you digitized history, primary and secondary sources
HTA Home Page | E-books | United States | Epilogue

9: Epilogue

<< 8: Among Friends And Neighbors || Bibliographical Note

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.

<< 8: Among Friends And Neighbors || Bibliographical Note