Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (18 page)

Second, he disliked Tallmadge's plan because it contradicted his conception of the Union. Perhaps Congress could exclude slavery from the
territory of Missouri, but it could not impose conditions on the territory
that would remain binding once it became a state. At that point, Missouri
would have attained equal footing with the other states-just as the
Northwest Ordinance had provided regarding the former trans-Ohio Virginia territory we now call the Midwest-and would be free, as other
states were free, to make its own policy regarding slavery. If a northern
majority in Congress could impose its will on a state despite that state's
clear rights, what was to prevent the Yankees in Congress from doing the
same to the older southern states?

The year 1819 also saw Marshall's Supreme Court issue another momentous decision. This one, in the case of Dartmouth College v. Woodward,
calls to mind his legerdemain in Fletcher v. Peck nearly a decade before.
Dartmouth College, like Harvard, Princeton, Columbia, and other colonial colleges, operated under a royal charter as a charitable institution. It
had been given its charter in order to perform the public service of educating New Hampshire youth, mainly-like Yale, William and Mary, and
other colleges-for the ministry, and to educate Indians.

With the Revolution of 1776, Dartmouth found itself insulated from
virtually any outside influence. When the Jeffersonian Revolution of 1800
finally worked itself out in the state politics of New Hampshire, Republicans saw Dartmouth College as ripe for reorganization. No longer, said
the Jeffersonian Republicans ascendant in that state, should their state
college be a bastion of privilege-a Federalist Party enclave untouchable
by the new legislative majority. Therefore, the state legislature adopted
legislation reorganizing Dartmouth.

Dartmouth College, in response, claimed the protection of the Contracts Clause of Article I, Section 10 of the Constitution for the terms of
its original charter. The case went to the Supreme Court, and Chief Justice Marshall blithely accepted the college's argument that its charter
amounted to a contract, the "obligation" of which could not be
"impaired" by state legislation.

The Contacts Clause, however, had never been meant to cover college
charters, and presumably a college chartered for the public's purposes
could have its charter amended by the public. As so often before, Marshall
might have been wrong, but his decision had lasting significance. It
explains why Harvard, Yale, Penn, Dartmouth, Columbia, and Princetoncolleges established during colonial times and supported during that era
with public money-came to be "private" in the early nineteenth century.
Just as Fletcher was calculated to protect the interests of land speculators
(such as Chief Justice Marshall), so Dartmouth College benefited the old
Federalist elites who wanted to shield their colleges from Republican legislatures. Jefferson and the Republicans were, naturally, outraged, and the
decision was unpopular, but there was no appeal from the Supreme
Court.

In 1821, the Supreme Court decided the case of Cohens v. Virginia. The issue
at hand was the effect of the Eleventh Amendment. The Supreme Court, predictably, ruled that the Eleventh Amendment banned only the initiation of
suits against states in federal court, and as this suit was only being appealed
to federal court against a state, the Eleventh Amendment did not apply.

Here, once again, we see that Marshall consistently read limitations on
federal power as narrowly as possible. The Eleventh Amendment plainly
does not have the limitations Marshall put upon it; it was meant to limit the federal courts to the role specified for them in Article III. If Marshall
had read the amendment that way, he would have found Section 25 of
the Judiciary Act of 1789-which gave the Supreme Court jurisdiction
over certain appeals from state supreme courts-unconstitutional.

Interestingly, in an 1824 case, Osborn v. Bank of the United States,
Marshall held that while the Eleventh Amendment banned the initiation
of suits against states in federal courts, it did not protect employees of
states from being sued in federal court for implementing state policies!
With Cohens and Osborn, he had given the Eleventh Amendment as narrow a reading as possible; this was consistent with his general pattern of
hostility toward limitations on federal power.

Marshall derisively called Jefferson "the great Lama of the mountains,"
but Jefferson recognized that the Supreme Court had become a threat to
America's constitutional government. He worried that the Court had eliminated all checks on its power by misreading the clear meanings of Article III and the Eleventh Amendment. Even an unbroken string of
Republican electoral victories had not changed the direction of the Court;
in fact, these victories seemed to make Marshall more determined to
write Hamiltonian principles into legal precedent.

Jefferson and Marshall were separated by differences over the very
nature of law. For Jefferson, law was the framework of rules by which the
people agreed to be governed; a judge's role was simply to apply the clear
meaning and original understanding of the Constitution (or other legal
document). But Marshall and his allies, like justice Joseph Story, believed
that law required judges who could see beyond the written law to the
"natural law" that was superior to it. Jefferson's vision was republican;
Marshall's was aristocratic or clerical. As Justice Iredell pointed out in
Calder v. Bull, no two men agreed about the particulars of the "natural
law"; instead, they tended to use "natural law" as a justification for leg islating their own policy preferences. It is unsurprising, then, that Marshall and Story's "natural law" always led to a pro-Federalist outcome.
Perhaps surprisingly, Marshall's vision of judging-the Federalist
vision-continues to dominate lawyers' and judges' thinking about the
judicial role even today.

One of the next great cases to come before the Court was Gibbons v.
Ogden (1824). Gibbons concerned the most famous inventor of the age,
Robert Fulton, who was widely credited with inventing the steamship. It
would be hard to exaggerate the significance of his invention, which revolutionized trade within the United States. The question was: what
reward should the inventor receive?

The New York legislature had granted Fulton and his business partner,
prominent Republican politician and diplomat Robert Livingston, a
thirty-year monopoly of "navigation of all the waters within the jurisdiction of that State, with boats moved by fire and steam." The issue, Marshall decided, was whether Congress's Commerce Clause power-"The
Congress shall have power... to regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes"-belonged
only to it, or whether states could also regulate "commerce," as in excluding certain ships from state waters.

Before he turned to that, however, Marshall had to define "commerce."
Neutral readers of his opinion would have found much in his Gibbons definition of "commerce" to remind them of his Dartmouth College definition of "contract" and his McCulloch definition of "necessary." It turned
out that the interstate "commerce" that Congress was empowered by the
Commerce Clause to regulate included not only what my dictionary defines as commercial (that is, large-scale exchange or buying and selling
involving transportation), but also transportation undertaken for transportation's sake. In support of his definition, Marshall pointed to the longstanding habit of Congress to adopt laws affecting interstate navigation;
the fact that Congress had done so over a long period of time proved that
it had a constitutional power to do so, he said. (Recall that he had made a
similar argument about the constitutionality of the second Bank of the
United States in McCulloch v. Maryland-and contrast Thomas Jefferson's
statement at the outset of the Revolution that no matter how long the
British oppressed the colonists, they would never acquire a right to
oppress them by having done it repeatedly.) Thus, the transportation
monopoly at issue in Gibbons was "commerce," said the Court, and therefore Congress could regulate it.

This odd definition, like those in McCulloch and Dartmouth College,
would have enormous ramifications down the road. In time, Congress
would claim, and the Supreme Court would agree, that it could regulate
virtually anything on the ground that it even remotely affected interstate
commerce. Marshall almost certainly would have welcomed that development.

But back to the steamboat monopoly. Having defined "commerce" in
such a way as to include mere interstate transportation, Marshall had to
decide whether Congress's power to regulate it was infringed by a New
York statute affecting it. He decided that it was-that is, that New York's
grant of a monopoly of steamboat transportation to Livingston and Fulton ran afoul of the Commerce Clause.

How could that be? Surely New York's legislation did not annul the
congressional power to regulate interstate commerce, or even limit it.
Marshall avoided saying that Congress's power to regulate interstate commerce was exclusive-that the Article I, Section 8 grant negated state
power to act in that area. But Marshall did assert that Thomas Gibbons operating a competing ferry service licensed by Congress in 1793-could
not be barred from New York waters under the terms of the Commerce
Clause.

In 1831 and 1832, Marshall issued a pair of opinions-in the cases of
Cherokee Nation v. Georgia and Worcester v. Georgia-that had even
deeper ramifications. Marshall famously sided with the Cherokee against
the state of Georgia by saying that the Indians' treaty rights must be
respected by the state. (In response, President Andrew Jackson is supposed to have said, "John Marshall has made his decision, now let him
enforce it.") Marshall's decisions in these cases are famous, but what is
never noted is the significance of his reasoning.

Marshall went on at great length about the Indians' society in North
America before the white man's arrival. The colonists had conquered
them and taken their land, he said; their moral right had given way before
the colonists' martial might. Sadly, they possessed only a slight remnant
of their original empire.

Marshall, in this analysis, denied the entire Jeffersonian theory of
American colonial history that underlay A Summary View of the Rights of
British America and, through it, the Declaration of Independence. If the
Indians in North America were not isolated bands of migratory Stone Age
people, but settled civilizations, then-as Sir William Blackstone wrote in
his Commentaries on the Laws of England-their law remained in effect
until the king replaced it, and so the colonists did not have all the rights
of Englishmen when they first arrived here. This meant that the Declaration of Independence was based on an inaccurate account of the colonies'
relationship to the king, who had not had to concede any of the rights of
Englishmen to the colonists. From Marshall's point of view, a rejection of the Jeffersonian version of the past buttressed opinions like the one in
Dartmouth College-in which a royal charter took precedence (as the
rights of the Indians took precedence) over state legislation. It also might
be said to have justified Marshall in reasoning from general legal theories
instead of directly from the Constitution and the constitutional understanding of the state ratification conventions.

The logic of Marshall's legal thinking nearly led to war in the early 1830s,
when it was applied to the issue of tariffs.

In 1828, Congress had passed and President John Quincy Adams had
signed into law the Tariff of Abominations, which raised the standard tariff rate to 50 percent. At a time when much of America was agricultural
and many goods were only available from abroad, a 50 percent tax on all
imports struck many as outrageous. The South Carolina legislature
responded by issuing its Exposition and Protest, in which it went on
record saying that each state had the right to interpose to prevent the
enforcement of federal policy within its borders if the federal government
adopted a policy that was unconstitutional and dangerous.

Matters worsened during the Nullification Crisis of 1832-1833. South
Carolina responded to the Tariff of 1832 by electing a popular convention, which nullified the tariff.

President Andrew Jackson prepared to invade South Carolina. South
Carolina's government and private citizens throughout the state prepared
the militia to resist. Virginia's governor secretly planned to take South
Carolina's side in case Jackson tried to march through Virginia to get at
the Palmetto State. And Jackson issued a Nullification Proclamation
denying the constitutionality of both nullification and secession. Nullification, he insisted, was treason. Repeating Marshall's arguments from
McCulloch v. Maryland, Jackson argued that the United States had been created by one American people, not by separate states. Just as Jefferson
had expected, the one thing that the Supreme Court and the executive
could agree on was that federal power was supreme.

Senator Henry Clay stepped in to arrange a compromise. Tariffs were
reduced-slowly. Senator John C. Calhoun of South Carolina would not
be hanged for treason (for supporting his state). Jackson would not repent.
The South Carolina Convention met again, repealed the nullification
ordinance, nullified the statute empowering Jackson to put down nullification by force, and declared victory.