Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (17 page)

John Marshall (1755-1835), the Great Chief Justice, was the fourth chief justice
of the United States. Before accepting that post, he had been a Federalist delegate to the Richmond Ratification Convention, a congressman, a diplomat, and
secretary of state. His handiwork as chief justice included writing the defeated (and, by the end of
his tenure, defunct) Federalist Party's constitutional views into American constitutional law in cases
such as Fletcher v. Peck, McCulloch v. Maryland, and Gibbons v. Ogden. More than any other man,
Marshall was responsible for converting the nationalists' defeat in the Philadelphia Convention into
a long-run total victory.

The main issue presented to the Supreme Court in the case of McCulloch v. Maryland was the constitutionality of the Maryland law. Lurking
behind that was the question of whether the Bank of the United States
had been constitutionally chartered by Congress.

Everyone recognized the import of the case: according to Justice Joseph
Story, when oral arguments were held, "the hall was full almost to suffocation, and many went away for want of room." Spectators got their money's
worth, as the issues were debated with great skill by Daniel Webster-the
nineteenth century's leading Supreme Court advocate-and William
Pinkney on behalf of the Bank of the United States and by Maryland attorney general Luther Martin, who had been a prominent Philadelphia Convention delegate thirty-two years earlier, for his state.

Webster reiterated Alexander Hamilton's 1791 constitutional justification of the first bank bill: Article I, Section 8 of the Constitution does not
provide an exhaustive list of congressional powers, but only a suggestive
one. As several of the powers listed in Section 8 relate to the economy,
Congress can be understood to have a general supervisory power over the
economy. Congress might well decide that chartering a bank was useful
in superintending the economy. Because the Constitution does not
expressly prohibit Congress from chartering a bank, Congress is free to do
so. Webster reasoned that nearly thirty years' unbroken acceptance of the
constitutionality of such legislation had settled the question.

Marshall, in his opinion for a unanimous Supreme Court, wrote that
Maryland had argued that the Constitution had been ratified by the states
for express, limited purposes, and not only had Congress's chartering a bank not been among those purposes, but the Tenth Amendment had
been added to the Constitution to underscore that the "powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the people."

However, Marshall rejected this notion. He wrote that while the Articles of Confederation had specified that Congress had only the powers it
was "expressly delegated," the Constitution included no such language,
so no such principle applied to it. This was an extraordinary argument,
given that Marshall himself and other Federalists like Charles Pinckney,
James Wilson, William Cushing, Edmund Randolph, and George Nicholas
had assured their ratification convention colleagues that this very principle of limited federal power-in Randolph's words, that the federal government would have only the powers it was "expressly delegated"-was
implicit in the unamended Constitution even before the Tenth Amendment was adopted.

Being right, however, does not guarantee a victory in court, as anyone
who has been so unfortunate as to find himself before a judge can attest.
In his opinion for the Court, Marshall "corrected" Martin's interpretation
of the Constitution. It had not been created by the states, he insisted, but
by one American people. Martin, said Marshall, simply did not understand the framers' intent!

The American people who created the Constitution, Marshall went on,
had given the federal government certain powers, and the federal government must be supreme within its sphere-both as a logical matter and as the
Supremacy Clause of Article VI expressly states. Thus, when Congress exercised one of its constitutional powers, a state could not interfere with it.

Was chartering a bank among Congress's constitutional powers? At this
point, Marshall, like Webster, borrowed from Hamilton: the proper ends
of congressional legislation are hinted at by the enumerated powers in
Article I, Section 8; the means Congress adopts to achieve those ends
(including management of the "national" economy) must be those that are "necessary" in the Webster/Hamilton sense of being "useful"; and the
limitations on congressional discretion listed in the Constitution (for
example, that Congress may not adopt an ex post facto law) are the only
binding ones there are.

From the grave, the practically defunct Federalist Party and its late
chieftain, Alexander Hamilton, had had their way. Despite its defeat in
1787, the Philadelphia Convention's monarchist-nationalist coalition had
been handed an epochal victory in 1819.

Little did it matter that Marshall's "interpretation," if it may be called
that, set the Tenth Amendment at naught, still less that it contradicted
what the Federalists of 1787-1791, including (at least by implication)
young John Marshall, had promised. As the Supreme Court had the final
word in the matter, the clear contradiction between the process used to
ratify the Constitution-its consideration by each of the sovereign states
and ratification by each of them separately, on behalf of itself and only
itself-and Marshall's assertion that "one American people" had adopted
the Constitution also was not susceptible to correction. The Constitution
was going to be read by the Supreme Court as the product of one American people, and the powers it gave the Congress were going to be the discretionary powers of a national legislature,
not the enumerated powers of a federal legislature. In short, the Philadelphia Convention, the ratification process, the Tenth
Amendment, and the political defeat of the
Federalist Party (so thorough that the party
ceased to exist) were all undone by the Marshall Court.

Almost as an afterthought, Marshall wrote
in McCulloch that Maryland could not tax
the Bank of the United States. In creating a federal government, surely the American people had not intended that
its powers could be overridden by an individual state government. "The
power to tax is the power to destroy," and so the state of Marylandwhich could not thwart federal measures-had no power to tax the bank.

Legal Latinisms

Ex post facto law: A law passed after the
commission of an act to change the act's
legal consequences. Generally, the term
refers to retroactive criminalization or
heightening of a criminal penalty.

Critics soon pointed out that Marshall's
argument proved too much. If the people
had created the federal government, whose
instrumentalities a state therefore could not
destroy, they had also created the state governments, so could the federal government
interfere with them? The argument applied
either way, logically-but not in the mind of
John Marshall. Like Thomas Hutchinson,
the last royal governor of Massachusetts,
Marshall insisted that there must be an indivisible sovereign in every community, and that meant that all conflicts
between states and the federal government must be decided in favor of
the federal government. The Revolution had substituted the federal government for the Crown, as Marshall read things, and the states were still
subordinate.

Marshall lamented in his correspondence that the bank decision drew
down a powerful storm of criticism. When the Richmond Enquirer ran
series of anti-McCulloch editorials, first by a Virginia appellate court
judge, then by the Court of Appeals' chief judge himself, Marshall-like
historians since him-accused his critics of preferring the Articles of Confederation to the Constitution, the same (disingenuous) argument he had
used against Luther Martin.

Seemingly everyone had something to say about the decision. James
Madison, for one, who had justified the second Bank of the United States
on far different-though equally pernicious-constitutional grounds, wrote of McCulloch that if people had known in 1788 that the Constitution would
be read as giving Congress such extensive discretionary powers, Virginia
would never have ratified it. He was, as we have seen, absolutely right
about that: George Nicholas and Edmund Randolph had assured the Richmond Convention that Virginia was to be one of thirteen parties to the Constitution, not somehow an organic part of "one American people."

Madison's Flip-Flops

In 1791, James Madison said Alexander
Hamilton's proposed national bank was
unconstitutional. But in 1816 Madison
asked Congress to charter one!

Thomas Jefferson, for his part, found Marshall's decision highly vexing. Jefferson had long regarded Marshall as the greatest threat to federal republicanism, and he said that despite Federalism's decisive
defeats at the polls, "we find the judiciary on every occasion, still driving us into consolidation." To Jefferson's mind, the branches of the federal government were coordinate and independent; the judiciary was
not the final arbiter. That status belonged to the sovereign people of
each state.

The year after McCulloch was decided, Jefferson wrote, "The judiciary
of the United States is the subtle corps of sappers and miners constantly
working under ground to undermine the foundations of our confederated
republic. They are construing our constitution from a co-ordination of a
general and special government to a general and supreme one alone." Jefferson's guiding principle was to favor local government. But it was an
argument he was losing: the failure of the Chase impeachment had demonstrated to the judges that they could do as they liked, and they were.

Marshall's opinion in McCulloch v. Maryland granting Congress powers
limited only by its own will provoked a fiery response in part because it
came as Congress was wracked by a dispute over slavery in the territory
of Missouri. Missouri, a section of the Louisiana Purchase, applied for
admission to the Union in 1819. The application included a draft state
constitution, which provided that slavery should continue in the territory.

To the surprise of the political class generally, a New York Republican
congressman named James Tallmadge, Jr. proposed that Congress amend
the Missouri bill to phase slavery out of existence in the new state. His
proposal would have stopped importation of slaves into Missouri, and it
would have freed all slaves born after Missouri's admission to the Union
as soon as they reached age twenty-five. The Missouri Crisis, which
would divide Congress for two years, had begun.

To a Republican congressman of his acquaintance, former president
Jefferson wrote that the Missouri dispute had struck him "like a firebell
in the night," filling him with terror. "I considered it at once as the knell
of the Union." He lamented that a geographical line had been established,
with proponents of one principle on one side and advocates of a contrary
one on the other. Could anything be done to end this division? Taking a
metaphor from an ancient Greek proverb, he said, "We have the wolf by
the ear, and we can neither hold him, nor safely let him go. Justice is in
one scale, and self-preservation in the other."

To understand Jefferson's metaphor, we need to know two things: first,
that so far as late eighteenth-century philosophers of whom Jefferson was
enamored were concerned, self-preservation was the highest goal of society. Only it could outweigh justice. Second, Jefferson's notion that ending slavery would mean loosing a ravenous wolf reflected his fear that
emancipation would lead to race war. He had expressed this fear as early
as the 1780s. It gained added strength from the memory of the Haitian
Revolution of 1791-1804, which had resulted in the death or exile of
every white person from Haiti. Jefferson expected American emancipation to have similar results in the South.

Jefferson opposed Tallmadge's Missouri proposals on several grounds.
First, he, like James Madison and others, believed that the slaves-and
certainly the slaveholders in his own state of Virginia-would be better
off if slavery were diffused across the whole continent instead of confined
to the Southeast.