Virginia lawyer William Wirt once likened John Marshall’s style of reasoning to a sunrise. When Marshall explained his opinions, wrote Wirt, the “eloquence” consisted not of rhetorical flourishes but of the “easy gradations” by which he moved toward his conclusions:
every sentence is progressive; every idea sheds new light on the subject . . . the dawn advances in easy but unremitting peace; the subject opens gradually on the view; until, rising in high relief, all its native colors and proportions, the argument is consummated by the conviction of the delighted [reader].1
Others emphasized the “simplicity” of Marshall’s easygoing nature—including even such political opponents as Thomas Jefferson, who complained that Marshall’s “lax lounging manners” made him “popular with the bulk of the people.”2
His down-to-earth style and skill at dispassionate reasoning served him well during his three and a half decades on the federal bench. As chief justice of the United States from 1801 to 1835, Marshall presided over scores of lawsuits that established critical precedents on a vast array of constitutional issues, decisions that set the terms of legal debate for generations to follow. Because his writings took the form of judicial opinions, his work is not as widely read as that of other founding-era figures such as Jefferson or James Madison. Yet his intellectual legacy is, in some ways, more profound and more enduring, particularly in defending the Constitution’s most important attribute—its creation of an ingenious legal structure known as “dual sovereignty”—in principled terms, even when heated political debates distracted some of his contemporaries from the importance of this singular innovation.
A New Constitutional Principle
Born in Virginia in 1755, Marshall was a generation younger than George Washington, the man he idolized and of whom he wrote a five-volume biography. During the Revolution, Marshall served in the infantry, seeing action at Brandywine, Norfolk, and elsewhere, and attaining the rank of captain. During a furlough from the army in 1779, he began studying law under George Wythe, a signer of the Declaration of Independence who had tutored Jefferson years before. Wythe was one of the state’s most prominent attorneys, and, like most legal thinkers of that period, was steeped in the natural law ideas of philosophers such as John Locke, Baron de Montesquieu, and Samuel von Pufendorf, as well as the common law system inherited from Great Britain. The tension between these two systems of thought would form the background for many of the most contentious controversies of Marshall’s career.
Yet, there was another, more urgent source of tension: How should the newly independent states relate to one another? Although the colonies declared themselves independent as a collective entity—as “one people” who dissolved their political connection with Britain—they soon afterwards adopted the Articles of Confederation, a document that implied a retreat from national unity. The Articles were more like a treaty among separate nations than a charter for a single body politic. They had not been promulgated by the American people, but by “the States of New Hampshire, Massachusetts-Bay, Rhode Island,” and so forth, and they expressly declared that “each state retains its sovereignty, freedom, and independence.” Thus the Articles created not a national union but—in its own words—a “firm league of friendship” between the states. Accordingly, the Articles gave the American Congress power only to pass resolutions that instructed state governments, not to pass laws that governed citizens directly. Congress could not regulate, tax, or punish individual Americans. It could only ask state legislatures to act—and there was no meaningful penalty if they refused.
Even before the war ended, American political leaders realized that the Articles were inadequate. States started bickering, printing their own currency, taxing and restricting imports from other states, and passing laws to repudiate debts owed to British creditors. Uprisings by farmers seemed to threaten the stability of state governments, and other states simply ignored congressional requests for resources needed to defend the country from European meddling. The danger that North America would collapse into a jumble of feuding nation-states was real. Worse, such infighting would create the means, motive, and opportunity for intervention by Britain, Spain, or France, all of which already controlled large parts of the New World.
Three years after the Revolution ended, prominent political leaders, including Alexander Hamilton and James Madison, attended a convention in Maryland to brainstorm ways to fix the Articles. They arranged a meeting in Philadelphia in May 1787, which would be immortalized as the Constitutional Convention. There fifty-five delegates fashioned a new plan, one that did not merely treat the symptoms of the Articles’ failure, but addressed that failure’s very source. Whereas the Articles were essentially a treaty between thirteen sovereign governments, the new proposal would create a constitution—a binding legal instrument between citizens themselves, ordained and established by a unified body politic, identified in the first sentence as “the people of the United States.”
This distinction—between the Articles as a treaty and the Constitution as a law—would prove so fundamental to Marshall’s legacy that it’s worth examining in detail.
During the war, the colonies had postponed deciding the potentially dangerous question of how exactly they were connected to one another. They had split from the mother country on July 4, 1776, and seized for themselves the governing authority—the sovereignty—that Parliament previously had possessed. But where had that power gone? Some argued that it now belonged to the new American nation—a single entity. Others argued that Parliament’s sovereignty belonged instead to each state government separately—in essence meaning that each individual state was its own autonomous republic.
That argument remained unresolved when the war ended, and the ambiguous language of the governing documents—the Declaration’s reference to “one people” and the Articles’ express reservation of each colony’s “sovereignty”—left the question open. As a result, Americans became divided into two parties—eventually called Federalists and Anti-Federalists—with differing views about the relationship between the states and the federal union. This dispute regarding the Constitution’s structure would fester for decades, putting the nation on the path to civil war.
An early hint of that showdown came at the Constitutional Convention when Maryland delegate Luther Martin articulated the Anti-Federalist position. “The separation from Great Britain placed the thirteen states in a state of nature towards each other,” he argued. “They would have remained in that state till this time, but for the [Articles of] Confederation.”3 Pennsylvanian James Wilson was quick to reply: He “could not admit the doctrine that when the colonies became independent of Great Britain, they became independent also of each other,” he said. Reading aloud from the Declaration of Independence, he argued that “the United Colonies were declared to be free and independent states . . . not individually but unitedly.”4 Although most of the Convention’s delegates agreed with Wilson, Martin—who would prove one of the Constitution’s loudest critics—spoke for many who were hostile to the idea of altering the treaty-style system created by the Articles.
Probably the most important of these was Patrick Henry, who became the leading Anti-Federalist at the 1788 convention in Richmond, where Virginians gathered to decide whether to ratify the Constitution. Opposing ratification, Henry cut to the heart of the matter: “The question turns,” he said, “on that poor little thing—the expression, We, the people, instead of the States, of America.”5 With their plan to draw governing authority from the American people instead of from the state governments, he argued, the Philadelphia delegates were proposing a radical transformation—one that would deprive Virginia officials of power and expose Virginians to federal tyranny. “Who authorized them to speak the language of, We, the people, instead of, We, the States?” he demanded. “States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government.”6
Among those who witnessed Henry’s philippic was John Marshall, delegate to the ratification convention from Henrico County, who was part of the team supporting the Constitution. Now a successful thirty-three-year-old lawyer, he had completed his legal studies in 1780 and swiftly earned the respect of his neighbors and colleagues in Virginia. They elected him to the state legislature in 1782 and to the ratification convention five years later, even though most of them did not share his political views—particularly his endorsement of the proposed Constitution. Its “intrinsic merits,” he later admitted, “would not have secured its adoption” had it not been for “the influence of character”—that is, his neighbors’ respect for his judgment.7 Now he found himself alongside such luminaries as Madison, defending the proposed Constitution against the attacks of Henry and other Anti-Federalists.
First, Madison spoke in answer to Henry’s complaint about the phrase “We, the people.” The Constitution would indeed be created by the American people, he said, not by the states. “In this particular respect the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states, whereas this is derived from the superior power of the people.”8
He was echoing a point that his coauthor Hamilton had emphasized in the newly published Federalist (a copy of which Marshall bought on his way to the convention). The “great and radical vice” in the Articles of Confederation, Hamilton wrote, was the fact that they sought to govern “states or governments, in their corporate or collective capacities”—meaning that the Articles were essentially a “mere treaty, dependent on the good faith of the parties.”9 The new Constitution, by contrast, would give Congress power to pass legislation binding on individuals directly—a power “essential to the idea of a law,” and would make Congress a real government.10 In other words, although it gave federal officials limited power, that power would be supreme and would be derived from a single source—the nation—not from each separate state legislature.
In response to those who, like Henry, feared that this would intrude on state autonomy, Madison, in a different Federalist essay, called that objection “preposterous.”11 The Revolution had not been fought so that “the governments of the individual States . . . might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty,” but so that “the people of America should enjoy peace, liberty, and safety.” Therefore, “as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”12 This new system of sovereignty—by which states remained supreme in most respects, while the federal government, to whom all Americans owed allegiance, would be supreme in others—was what a later generation of lawyers would call “dual sovereignty.”13
Madison was followed by an all-star lineup of pro-Constitution delegates whose patient clause-by-clause explanations of the Constitution made an impression sharply contrasting with Henry’s furious and disorganized rhetoric. Virginia Governor Edmund Randolph, former governor Henry Lee, Congressman James Monroe, and finally Marshall calmly rebutted the Anti-Federalists’ charges. Marshall’s most important contribution was a long speech describing how the new federal courts would operate. Refuting Anti-Federalist warnings that federal judges would be biased against states, he noted that the risk was far greater that state courts would be prejudiced against out-of-state litigants, especially British creditors to whom Americans owed debts incurred before the Revolution. That threatened the stability of credit and the reliability of contracts between citizens of different states and nations. An independent, unbiased federal judiciary was the only alternative that could ensure enforcement of these debts and thereby “preserve the peace of the union.”14 As for fears that Congress would abuse its powers, he explained, federal and state courts would help prevent that, because they would “declare” any “law not warranted by any of the powers enumerated” in the Constitution to be “void.”15
Marshall’s speech was the final presentation by the pro side at the convention, and it impressed even Patrick Henry. When he rose to present his closing argument for the anti side, Henry acknowledged that, although he thought Marshall “mistaken,” he had “the highest veneration and respect for the honorable gentleman.”16 Marshall’s capacity for remaining civil and approachable while staying true to his principles also proved helpful behind the scenes, as he spent evenings in Richmond taverns, gently persuading the convention’s undecided delegates, answering their questions, and allaying fears about the Constitution. His efforts and those of his colleagues paid off when the vote came: Virginia ratified by a vote of 89–79.
The Rights of Minorities
Marshall’s performance in Richmond and his increasing success as a lawyer made him a likely candidate for federal office, but when asked to run for the House of Representatives, he declined, preferring to focus on his legal practice and his work in the state legislature. Nevertheless, he found himself increasingly opposed to Jefferson’s new Republican Party, and when the new Federalist president, John Adams, asked him to serve on a diplomatic mission to Paris in 1797, Marshall agreed. That mission climaxed in the scandal known as the XYZ Affair, in which agents of France’s new revolutionary government demanded a bribe from American ambassadors. The Affair proved to be a public relations disaster for the Republicans, who supported France’s revolutionaries. Marshall’s skillfully written report on the incident maximized their embarrassment and delighted Federalists, who again urged him to run for Congress. This time he agreed, and he was elected in 1799.
Service in Congress left Marshall with time to practice law, and that fall, he served as counsel on one of the most interesting, and often overlooked, cases of his career.17 Pleasants v. Pleasants involved the legality of a will written by a wealthy Virginian named John Pleasants, who had died “owning” more than four hundred slaves. As a Quaker, Pleasants considered slavery a sin, but state law did not allow masters to free their slaves. So Pleasants bequeathed freedom to his human “property” if manumission should ever become legal, but in the meantime he left the slaves to his sons. The legislature did later legalize manumission, but several members of the Pleasants family refused to follow the will, leading John’s son Robert to hire Marshall to sue his siblings on their behalf. Marshall faced a complicated problem: The will appeared to violate the age-old “rule against perpetuities,” which forbids property owners from conditioning their wills on potential future occurrences that might never happen. In this case, the gift of freedom to the slaves was made conditional on the legislature passing a law to legalize that—which would normally violate the rule. Yet Marshall persuaded the judge—his former teacher, George Wythe—to find a way to reconcile the rule with freeing the slaves, and his decision was upheld by Virginia’s highest court.18
The case was not the only time Marshall sided with oppressed minorities. Like many educated men of his time, he viewed slavery as evil although he “owned” and traded slaves all his life. He also emphasized the ill effects of slavery on white society more than on the rights of black Americans, and he could not imagine a solution to the problem. He regarded abolitionism as “insane fanaticism” in “pursuit of an unattainable object,” and supported the American Colonization Society’s efforts instead to send freed slaves to Africa.19 Characteristic of his views was a letter he wrote in 1826: “Nothing,” he told a friend, “portends more calamity and mischief to the southern states than their slave population; yet they seem to cherish the evil and to view it with immovable prejudice and dislike every thing which may tend to diminish it.” He thought Southerners would “resist any attempt, should one be made, to interfere with the rights of property,” and he sympathized with that. But he was disappointed that they also resisted “measures which may do good without the hazard of harm,” such as government taking slaves (whether to free them or ship them to Africa) and compensating owners.20
Still, he held that enslaved people were humans with inherent rights. In an 1825 ruling, he declared the slave trade “contrary to the law of nature,” because “every man has a natural right to the fruits of his own labor . . . and . . . no other person can rightfully deprive him of those fruits, and appropriate them against his will.” Slavery, he argued, could only “have its origin in force.”21 Yet, however powerful Marshall’s sympathies, he never focused his efforts on rectifying this evil or exerted his political influence on behalf of slaves as he later tried to do on behalf of Cherokee Indians.
Marshall’s equivocal record with regard to individual rights is also apparent in his approach to one of the Adams administration’s darkest moments: the adoption of the Alien and Sedition Acts. These bills—advanced by bellicose Federalists in a panic over the alleged efforts of French revolutionary agitators—outlawed speech critical of the president or Congress and empowered Adams to summarily deport foreigners suspected of disloyalty. The acts became law while Marshall was running for Congress, but he carefully hedged his public statements to imply that he opposed them while defending them behind the scenes.22 While telling voters that he would have voted against them, he anonymously authored a legislative report that defended the measures—particularly the Sedition Act—as both constitutional and necessary. Political dissent, he wrote, would “poison the minds” of citizens and “produce . . . convulsions, which if not totally destructive of, will yet be very injurious to, [America’s] prosperity and welfare.” It was “vain to urge that truth will prevail” in an environment of free speech, because experience showed that people believe lies and rumors. Instead, Congress could and should “declar[e] libels against government to be a punishable offense.”23
James Madison took a different view. He argued that the First Amendment gave speech more legal protection than the English common law did. Whereas the common law—through the principle known as “prior restraint”—barred certain types of censorship by guaranteeing the right to print one’s opinions without getting government permission, it still allowed the government to punish people for “sedition” after publication. Madison believed that the Constitution included the “prior restraint” rule but went still further: It also prohibited Congress from punishing people after expressing themselves.24 Marshall firmly disagreed: “that freedom never has, and most probably never will exist,” he wrote.25 In Marshall’s view, the First Amendment went no further than the common law and left Congress free to penalize antigovernment speech.
There was, however, another dimension to the debate over the Alien and Sedition Acts. Jefferson and Madison advanced their arguments against them in two sets of anonymous resolutions—the Virginia Resolutions, which Madison wrote; and the Kentucky Resolutions, which Jefferson wrote. Both argued not only that the acts were unconstitutional, but also that state governments had the authority to pronounce them void and to disregard them.26 Jefferson went even further: The states, he contended, were “not united on the principle of unlimited submission to their general government,” but instead each state had “acceded” to the Constitution “as a State”—which meant that each was “an integral part” of the constitutional contract. That meant each state had the “right to judge for itself” whether something was unconstitutional—and also to choose its “measure of redress.”27
This language echoed Luther Martin’s argument at the Constitutional Convention and seemed to disregard the Constitution’s primary innovation: the “dual sovereignty” system under which it was not a treaty as the Articles had been, but a law promulgated by the whole American people. Even Madison was alarmed by Jefferson’s wording and used slightly more discreet language in his Virginia Resolutions. Decades later, he would try to distance himself from the implication that the Constitution was a mere treaty, or that states could nullify federal laws. But at the time, many thought both Jefferson and Madison were advancing precisely those ideas—and Marshall immediately detected dangerous implications. He lamented in a letter to Washington that Jefferson and Madison seemed to “prefer a dissolution of the union to the continuance of an administration not of their own party.”28 In years to come, he would have plenty to say about the “states’ rights” doctrine that the two men helped formulate.
As a Congressman, Marshall quickly distinguished himself as the Adams administration’s foremost advocate, and in May 1800, Adams asked him to serve as secretary of state. Marshall served for only nine months, however, because the Federalists lost the presidential election that year. On his way out of the White House, Adams nominated Marshall to the Supreme Court in hopes that the party could hold on to the judiciary during the coming Republican administration. His haste also set in motion what would become the first of Marshall’s epochal constitutional cases, Marbury v. Madison (1803).29
The lawsuit began when Adams’s deputies failed to deliver some commissions to judges that the president had appointed at the last minute.30 One of these was a loyal Federalist named William Marbury, who had been nominated and congressionally confirmed as justice of the peace for Washington, D.C. It was a minor post, bringing a small paycheck, but the new secretary of state, James Madison, refused to turn over Marbury’s commission or allow him to assume the office he’d been given, because President Jefferson thought Adams’s last-minute appointments had been illegitimate. That gave Marbury and his Federalist supporters the opportunity to seek a court order forcing Madison to relinquish the documents.
Yet Marbury did not file his case in a trial court. Instead, he took advantage of a provision in a federal statute, the 1789 Judiciary Act, that allowed the United States Supreme Court to exercise “original jurisdiction”—meaning power to hear trial-level cases at the outset, as opposed to “appellate” jurisdiction, whereby the Supreme Court can review a case only after an initial decision by a trial judge. That provision of the act was problematic because the Constitution gives the Supreme Court only appellate jurisdiction (except in certain rare instances not relevant here), which implies that Congress has no authority to expand the Supreme Court’s power.
Some Federalists may have been startled when, in 1803, the Supreme Court ruled in favor of the Jefferson administration. Yet their frowns must have turned into smiles as they read, for Marshall began the opinion with a long denunciation of the administration’s refusal to turn over Marbury’s commission. Delivering a signed and sealed commission was a mandatory duty, he explained, and the president is an “officer of the law” who is “amenable to the laws for his conduct.” Jefferson could not, “at his discretion, sport away the vested rights of others,” including Marbury’s legal right to his commission. Marshall was characterizing Jefferson’s refusal to hand it over as an assault on the rule of law itself.31
Yet after delivering this rebuke, Marshall’s opinion took a turn. He concluded that the Supreme Court lacked authority to decide Marbury’s case at all. The provision of the Judiciary Act that gave the court original jurisdiction in such cases was itself unconstitutional, he explained. The Constitution gave the court no such jurisdiction, yet the act purported to do so. The two were therefore in conflict, and that made it his “judicial duty” to declare the act void as contrary to the nation’s fundamental law.32
Jefferson fumed that Marshall had gone out of his way to denounce the administration before admitting that he lacked authority to decide the case. “This practice of Judge Marshall,” he wrote decades later, “of traveling out of his case to prescribe what the law would be in a moot case not before the court is very irregular and very censurable.”33 But as a tactical matter, Marshall’s decision was brilliant politics. It was technically a victory for the administration, which meant that Jefferson had no opportunity to challenge it.
Marbury is also a prime specimen of Marshall’s writing style. It relies on virtually no legal precedents (citing only one) and only a few brief quotations. Instead, it proceeds in plain-spoken and seemingly relentless logical steps. Marshall breaks down the case into three seemingly simple questions:
1st. Has the applicant [Marbury] a right to the commission he demands? 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3dly. If they do afford him a remedy, is it [an order] issuing from this court?34
By referencing the Constitution and common sense, Marshall formed an apparently ironclad argument that proceeded from premises to conclusions without a gap.
An even better example of Marshall’s technique is found in his next great opinion, Fletcher v. Peck (1810). That case began when the Georgia legislature sold state-owned property to private investors who, it turned out, had bribed the lawmakers. When voters learned of the corruption, they threw out the implicated legislators and elected new ones, who promptly passed a law revoking the transaction. By that time, however, the land had passed into the hands of third parties. The state had no right, these owners argued, to take back what it had sold.
Called upon to decide who owned the land, Marshall pointed to the Constitution’s contracts clause, which forbids states from passing any law “impairing the obligation of contract.” This provision, he ruled, applied not only to contracts between private parties, but also to contracts between private parties and the government. The law approving the original sale was “in its nature a contract,” and when “absolute rights have vested under [a] contract,” the government cannot “divest those rights” by repealing the law.35
In fact, every sales contract essentially consists of two interrelated promises: an agreement to exchange something, and an agreement not to reassert one’s claim to the original thing. For Georgia now to reassert its right to land it previously sold would thus impair the state’s contract with the purchasers, which would be unconstitutional, regardless of the fact that the original sale was the product of corruption. To allow states to “divest the vested estate of any man whatever, for reasons which shall, by itself, be deemed sufficient” would be an extremely dangerous power.36
Marshall’s ruling made property and contract rights more stable than they were in virtually any other country in the world—but Republicans also feared that the Fletcher ruling went too far in limiting legislative authority. If the contracts clause applied not only to private agreements, but also to the actions of state governments, states would be limited both in their ability to undo past wrongs and to create new policies that might affect existing contracts. In fact, Fletcher set in motion one of the most vexing legal dilemmas in constitutional law, one that hinged on the relationship between the contractual rights of individuals and the regulatory authority of the states. That dilemma would form the heart of some of the Supreme Court’s most important decisions in the years to come.
Dual Sovereignty and Implied Powers
Marshall presided over dozens of momentous disputes during his decades on the bench, writing decisions—on state power to regulate interstate waterways, the federal judiciary’s authority to review decisions by state courts, and the limits of presidential immunity from lawsuits—that remain binding law today.37 But the point he kept returning to involved the principle of dual sovereignty, that unique system that creates a federal government for the whole American nation instead of a treaty between individual states. Despite what seemed like widespread understanding of this idea in the 1780s, the Kentucky and Virginia Resolutions had revived the obsolete treaty model of the Articles of Confederation in the name of states’ rights. From that point on, Marshall found questions about dual sovereignty being raised in lawsuit after lawsuit. Perhaps the most important of these was McCulloch v. Maryland (1819), which involved the constitutionality of the Bank of the United States.
Brainchild of Alexander Hamilton, President Washington’s treasury secretary in the 1790s, the bank’s constitutionality had been disputed from the beginning. Jefferson, then Washington’s secretary of state, had written the president a long memo arguing that Congress had no power to establish a bank, because it was not on the Constitution’s list of congressional powers. True, the Constitution gave Congress power to do things “necessary and proper for carrying into execution [its other] powers”—and this was the provision on which Hamilton based his proposal. But Jefferson interpreted that clause more narrowly. The word “necessary,” he argued, did not mean “convenient”; it meant indispensable or essential or absolutely necessary.It meant Congress could do X only if some constitutional goal (say, regulating interstate commerce) was impossible without X. To read the word “necessary” more broadly than that—to mean “advantageous” or “helpful”—would give Congress unlimited power, “for there is [nothing] which ingenuity may not torture into a convenience.”38
Hamilton replied that the word “necessary” was not usually understood in such a strict sense; it “often means no more than needful, requisite, incidental, useful, or conducive to.”39 To read the word as Jefferson did would cripple the government. Hamilton argued for a looser interpretation of Congress’s powers: the proper “criteri[a] of what is constitutional,” he wrote, were (a) whether the goal the government is pursuing is legitimate, (b) whether the method it selects actually accomplishes that goal, and (c) whether that method violates either an express provision of the Constitution or “a preexisting right of any state, or of any individual[.]”40 The bank did none of these things, he argued, so it was constitutional. As for Jefferson’s fear that Congress would exploit the necessary and proper clause to do whatever it wanted, that was just silly, “for no government has a right to do merely what it pleases.”41
Washington sided with Hamilton and signed the bank bill. When Congress created a new Second Bank of the United States in 1816, President James Madison signed its charter, despite having joined Jefferson in opposing the First Bank’s constitutionality.42 But if Madison had come to accept the bank, other Republicans had not. Several states, including Maryland, sought to challenge its legality by imposing taxes on its bank notes. When the bank’s agent in Baltimore, James McCulloch, refused to pay, the state sued him, and he appealed to the Supreme Court.
The state’s legal team was led by Luther Martin, the same lawyer who had been the most outspoken proponent of states’ rights theory at the Constitutional Convention. He and his cocounsel argued not only that Congress lacked power to create a bank, but that doing so intruded on Maryland’s sovereignty. “The Constitution,” argued one of his colleagues, “was formed and adopted, not by the people of the United States at large, but by the people of the respective states. . . . It is, therefore, a compact between the states, and all the powers which are not expressly relinquished by [the compact], are reserved to the states.”43 When Martin spoke, he reiterated that point. A state’s power to tax was “absolutely unlimited,” and the states “would not have adopted the constitution, upon any other understanding.”44
Marshall ruled against Martin, and, seeing an opportunity to denounce states’ rights theory, reasserted the principle of dual sovereignty in his decision. “The counsel for the state of Maryland,” he wrote, “have deemed it of some importance . . . to consider [the Constitution], not as emanating from the people, but as the act of sovereign and independent states.” This, however, was “difficult to sustain.”45 The Constitution “derives its whole authority” from the American people, not from the states. When it was ratified, “it required not the affirmance, and could not be negatived, by the state governments.”46 That fact had been “acknowledged by all” during the ratification debates, and must never be forgotten: “The government of the Union . . . is, emphatically and truly, 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 directly on them, and for their benefit.”47 When Congress acted, it acted on behalf of the whole nation, and so long as it exercised lawful authority, the fact that its laws might intrude on state autonomy was simply irrelevant.
As to the bank’s constitutionality, Marshall reiterated the arguments Hamilton had made in his 1790 memo to Washington.48 “Necessary” did not mean requisite, but beneficial; the word “admits of all degrees of comparison. . . . A thing may be necessary, very necessary, absolutely or indispensably necessary.”49 For one thing, the Constitution itself used the phrase “absolutely necessary” in a different section—one that limits what taxes states can impose on imports—and the fact that the Constitution used “absolutely necessary” there, but not in the Necessary and Proper Clause, implied that the term should not be read so strictly in the latter provision. Moreover, to interpret “necessary and proper” as Jefferson did—as referring only to those methods without which Congress’s goals were totally unattainable—would “deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.”50 It was essentially up to Congress itself to decide what acts were necessary.
Marshall was sensitive to the risk of unlimited government. It was “universally admitted,” he wrote, that the Congress “can exercise only the powers granted to it”—in fact, that was “too apparent” to require serious discussion. In his view, the more significant concern involved “these questions” regarding “the conflicting powers of the general and state governments . . . and the supremacy of their respective laws, when they are in opposition.”51 Thus, in a hastily written paragraph, he held that as long as Congress was pursuing a goal that was “within the scope of the constitution,” whatever means it chose to attain that goal would also be constitutional, as long as it was “plainly adapted” to the goal, was “not prohibited” by the Constitution, was “consist[ent] with [its] letter and spirit,” and was not a “pretext . . . for the accomplishment of objects not entrusted to the government.”52
But these limits on congressional power were more apparent than real, as Madison immediately recognized. Now in retirement, he was apoplectic when he read McCulloch, for it seemed, he wrote, to “relinquish . . . all control on the legislative exercise of unconstitutional powers” and to grant Congress “a legislative discretion . . . to which no practical limit can be assigned.” Letting Congress choose any means to achieve constitutional ends was untenable, he believed, because “ends and means may shift their character at the will and according to the ingenuity of the legislative body. What is an end in one case may be a means in another.” His conclusion was stark: Marshall’s decision would “convert a limited into an unlimited government.”53
His fears proved well founded. In the centuries that followed, courts made little progress in determining what exactly “the letter and the spirit of the constitution” meant. Although legal scholars believe that Marshall’s view of congressional power was “more circumspect . . . than is commonly taught,” his failure to articulate a meaningful limiting principle in McCulloch left future justices with few tools to resist congressional overreach.54 For instance, in 2012, Chief Justice John Roberts, citing McCulloch, conceded that courts are “very deferential to Congress’s determination that a regulation is ‘necessary.’” Thus, he upheld the constitutionality of the Affordable Care Act—a law that directly contradicts the “letter and spirit” of the Constitution.55
But even while dreading these consequences, Madison joined Marshall in rejecting the states’ rights theory. That theory grew increasingly popular in the years after McCulloch, particularly in the South, where many saw it as a useful tool against federal interference with southern interests, especially slavery. In 1831, South Carolina Senator John Calhoun published a states’ rights manifesto that relied expressly on the Kentucky and Virginia Resolutions to denounce the dual sovereignty theory and argue that the Constitution, like the Articles, was only a treaty—meaning that states retained their fundamental independence, including the authority to secede from the union.
Madison—then in his eighties—threw himself into an effort to refute Calhoun. It was “preposterous,” he wrote, to claim that “the Constitutional band which holds [the states] together, is a mere league or partnership, without any of the characteristics of sovereignty or nationality.”56 The Constitution was “formed, not by the governments of the component states,” but by the “the people,” who were “one people for certain purposes.” That meant federal law “cannot be altered or annulled at the will of the states individually,” and that no state could secede.57 Anyone who suggested the opposite should be regarded “as the Serpent creeping with his deadly wiles into Paradise.”58
Marshall rejoiced when he read Madison’s words. “He is himself again,” he told Justice Story. “He avows the opinions of his best days.”59 Madison never did accept Marshall’s broad interpretation of the Necessary and Proper Clause, but on the question of the nature of the constitutional sovereignty—and the risk posed to it by Calhoun and his allies—Madison and Marshall were united as they had been during the ratification debates a half century earlier.
The Dilemma of the Contracts Clause
Marshall’s unwavering defense of dual sovereignty also formed the background of two sets of lawsuits that involved some of the most complicated legal problems in the new nation. The first set included a series of decisions elaborating on the principles Marshall had expressed in Fletcher, the 1810 case that blocked Georgia from repealing its corrupt land sales on the grounds that doing so impaired the obligation of contract. The second—the three lawsuits known as “the Cherokee cases”—involved federal responsibility to protect Native Americans against abuses by state governments.
The first of the Fletcher-related cases was Dartmouth College v. Woodward (1819), which began when New Hampshire lawmakers tried to reform the state’s leading educational institution. Still governed under a royal charter predating independence, Dartmouth had been wracked by religious and personal feuds; and in 1816, the legislature passed a law revising the charter and altering the college’s governing board. College officials argued that this was unconstitutional: That charter, like the land grants in Fletcher, was a contract the state could not undo. Marshall agreed, and his decision was a critical step toward legitimizing what was then a relatively new invention: the private, for-profit business corporation.
A generation before, corporations had been viewed as semipublic institutions whereby entrepreneurs were given government permission to undertake some project or enterprise by authority of the sovereign.60 That meant “corporation” and “monopoly” were virtually synonymous terms, and it meant that government could alter corporate documents when it chose. Dartmouth College helped overthrow that conception and give birth to the generic business corporation we know today—a legal entity that can be created by anyone who so desires, and that the state may not change at will.61
But if states could not alter contracts, what flexibility did they have to write laws governing how contracts could be created or enforced? One possible answer is that all laws on the books at the time a contract is written become part of that contract. That would mean states could not alter existing contracts but could set the terms on which future contracts would operate. But this seemed to incentivize states to assert broad authority today in order to alter contracts tomorrow—thereby immunizing their meddling from constitutional challenge.
That was just the dilemma the Supreme Court confronted in Ogden v. Saunders (1827), which resulted in Marshall’s only significant dissenting opinion. The case involved a New York law that relieved bankrupt people of their debts in certain circumstances. That law existed when the contract in the Ogden case was formed, meaning it would “become” part of the contract—yet how could contracts function if New York allowed people to renege on their promises?
Justice Bushrod Washington wrote an opinion upholding the New York statute. Any law in place when a contract is written, he declared, “forms, in my humble opinion, a part of the contract,” and it would be contradictory to say that such a law “does, at the same time, impair that obligation.”62 Therefore the law giving people the option of disregarding their agreements in the event of bankruptcy became part of every contract written after that law went into effect and could not “impair” those contracts.
Marshall thought this was illogical. The New York law empowered people to repudiate their promises; it therefore impaired the obligations of contract, regardless of the timing. Washington’s “forms a part of the contract” theory had absurd consequences: Suppose the legislature passed a law declaring that it could rewrite all contracts from that day forward as it saw fit. Under Washington’s theory, that, too, “would become a component part of every contract, and be one of its conditions”—but that would essentially nullify the Constitution’s Contracts Clause, because it would let legislatures nullify any and all agreements.63 And what about an unconstitutional law on the books when a contract is written—does it, too, become part of the contract? If so, then any subsequent repeal of that unconstitutional law would then itself be unconstitutional impairment—which is self-contradictory.
Worse still, Washington’s theory that no law a state adopted could “impair” a contract written after that law went into effect “assumes that [the obligation of a] contract is the mere creature of society” and that a contract “derives all its obligation from human legislation.”64 Marshall could not accept this. The moral principle that makes contracts binding is not created by the state, but—as with other rights and obligations—is based on a “preexisting” principle “which human law” only “enforces.”65 Government may “regulate contracts,” or even change the remedies available if someone breaches a contract, but it could not simply absolve people of the obligation to fulfill their promises without, by definition, impairing that obligation. Washington’s faulty premise was his belief that any laws a state adopts become part of a contract and therefore cannot “impair” a contractual obligation. That, Marshall thought, was like saying that if a state passed a law legalizing stealing or killing, no subsequent theft or murder was an impairment of the victims’ rights to property or life. In Marshall’s view, government does not make contracts morally binding—they are binding by their very nature—and states therefore cannot nullify them, or allow them to be nullified, without impairing them.66
Marshall’s nearly ten-thousand-word dissent is a masterpiece of legal analysis—which, as with Fletcher and other decisions, relied not on precedent or legal treatises but almost entirely on Marshall’s own reasoning skills.
But there would be another chapter in the dispute over state power to affect contractual obligations. Charles River Bridge v. Warren Bridge (1837), began when Massachusetts lawmakers chartered a company to build a new, toll-free bridge over the Charles River a short distance from an existing, privately run bridge that charged a toll. The owners of the existing bridge argued that the new free bridge ruined their business and destroyed the value of the corporate charter that Massachusetts had given them in 1785. That meant the second charter impaired the first, no different in principle than if the state had simply declared the first charter void.67
Marshall heard the lawyers’ arguments but died before he could write a decision. His successor was Roger Taney, a states’ rights advocate who had been a protégé of Luther Martin and whose view of the relationship between states and the federal government was virtually the opposite of Marshall’s. Justice Joseph Story, who had served with Marshall for twenty-five years and idolized him, viewed Taney’s arrival as a catastrophe. He began writing stirring dissents that invoked Marshall’s memory and was heartbroken when Taney announced a decision in Charles River Bridge that upheld the state’s authority and seemed to abandon the principles of Fletcher and Dartmouth College.68 “I feel humiliated,” Story told his wife. “A case of grosser injustice, or more oppressive legislation, never existed.”69
Taney viewed the Contracts Clause as far less protective of individual rights than his predecessor had. “The object and end of all government is to promote the happiness and prosperity of the community,” he wrote, and “the whole community have an interest in preserving [that power] undiminished.”70 That meant that only in the rarest cases could states lack power to revise contracts or to issue new charters. “While the rights of private property are sacredly guarded,” he wrote, “we must not forget, that the community also have rights,” and government officials must never be “presumed to have taken upon themselves an implied obligation” not to repudiate their agreements—because that would hinder the state’s “sovereign rights.”71
Taney argued that restricting states from issuing conflicting charters to competing businesses would perpetuate the “spirit of monopoly” and obliterate free enterprise: “Let it once be understood, that such charters carry with them these implied [promises not to grant competing charters],” he said, “and you will soon find the old turnpike corporations . . . calling upon this court to put down the [railroads] which have taken their place.”72 Although these words sounded like a defense of economic liberty and dynamism, Taney was not an advocate of free markets. His concern was with protecting the power of states to legislate, even in ways that deprived innocent investors of their earnings.
Yet that undermined the basic principle of Dartmouth College. The difference between a state’s power to destroy the value of a charter it had previously issued, as in Charles River Bridge, and its power to change existing charters, which Dartmouth College declared unconstitutional, was only a matter of degree.
Story wrote a long and impassioned dissent, warning that the decision marked a “startling” abandonment of principle and a threat to free enterprise, notwithstanding Taney’s rhetoric.73 The first charter had been “a solemn contract,” intended “to encourage enterprise; to advance the public convenience; and to secure a just remuneration for large outlays of private capital.”74 Chartering a second free bridge obliterated the first bridge’s value and therefore impaired its contract. If states could always reverse themselves in this way—either by revoking existing charters, or by issuing new, competing charters—then the result would “arrest all public improvements,” because entrepreneurs would never undertake the risk of building bridges or canals if the state could always change its mind and destroy their investments.75
At last, Story invoked the spirit of John Marshall. “I stand upon the old law,” he wrote.76 “It would be against the first principles of justice, to presume that the legislature reserved a right to destroy its own grant. That was the doctrine in Fletcher.”77 The new era represented by Taney, and his emphasis on the authority of states, was a frightening portent.
The Cherokee Cases
The last major series of decisions Marshall wrote were the “Cherokee cases”—Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832)—in which, at last, he directly confronted both state and federal officials on behalf of Native Americans.
Johnson was a dispute between two families who claimed ownership of the same land. The Johnsons asserted title that traced back to a purchase from the Cherokee tribe a century before. The validity of their ownership, therefore, depended on whether that original Indian title was recognized by American courts. If so, did that mean that Indians owned the lands they occupied? This was a heated question because many western settlers lived on land acquired from state governments—governments that had never bought the land from tribes in the first place. Johnson would determine whether states were required to obtain titles from Indians before selling land to settlers.78
Marshall’s answer was no. Tribes had the right to live on land they currently occupied, but did not actually own it. They were “the rightful occupants,” with a “just claim to retain possession,” but the British common law system that Americans inherited did not recognize the Indians’ right to “ultimate dominion.” Instead, European colonists had acquired North America under 17th-century rules of “discovery” and “conquest” under which they obtained the “power to [buy and sell] the soil, [even] while [it was] yet in possession of the natives.”79 That meant the initial settlers and descendants were not required to ask the Indians’ permission before buying and selling the land they occupied. Frontier farmers could rest easy.
The Johnson family could not, however. Not only did Marshall hold that the government could sell tribal lands without the Indians’ permission, he also concluded that only the government could authorize purchases of Indian land. Transactions by private parties, without the sanction of public officials, were legally invalid—and, added Marshall, they were “opposed by the soundest principles of wisdom and national policy.”80 Anyone holding land acquired directly from Indians could ask the government to approve that purchase retroactively, but it had no obligation to do so, and it could void any such purchase without paying compensation. The Johnsons were out of luck.
Johnson has been criticized in modern times for making Indians “guests in their own ancestral homelands.” In truth, Marshall sympathized with the Natives and seems to have hoped that by insisting on their “right of occupancy,” he could reconcile existing American property rules with recognition of their rights.81 But if that was his goal, it was overshadowed by his conclusion that “conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be.”82 In other words, Marshall believed judges were powerless to question the legitimacy of American power over Native lands. His compassion for the Indians’ situation was genuine; “every oppression now exercised on a helpless people depending on our magnanimity and justice for the preservation of their existence,” he told Story, “impresses a deep stain on the American character. I often think with indignation on our disreputable conduct.”83 Yet by validating the government’s “ultimate dominion” over the land, he was legitimizing the very conquest he deplored.84
Worse, by effectively denying Indians the power to sell land without government approval, he imperiled them in another way. By recognizing only a Native right of “possession” rather than ownership, Marshall was in effect describing what lawyers call a “life estate”—a form of ownership that terminates upon death. That created an incentive to exterminate Indians rather than buy from them. And by barring private sales without government approval, Marshall’s decision gave politicians, rather than individuals, the power to buy and sell land. Yet politicians answered only to white voters, not Indians, and their actions were coercive rather than voluntary exchanges. Thus, notwithstanding Marshall’s sincere humanitarian qualms, his ruling effectively eliminated much of the Indians’ legal power over their land and forced them to sign treaties with officials whom he seemed to assume would act in good faith.
The inevitable consequence of the muddled Johnson ruling was Cherokee Nation v. Georgia (1831), which began when the state passed legislation essentially outlawing the Cherokee government. That government was highly organized—the tribe had adopted Western ways, including a written language and a formal constitution—and it governed thousands of tribal members in northwestern Georgia.85 For decades, Georgians had sought ways to move the Cherokee west so settlers could take over, but the tribe refused to sell. State politicians grew increasingly impatient, and officials in Washington took only halfhearted measures to protect the tribe, given a widespread belief that moving west was their best option.
In 1828, seeing an opportunity in the language of Johnson, Georgia lawmakers declared the Cherokee government powerless and extinguished the Indians’ land titles. The tribe could hope for little protection from the White House; the new president, Andrew Jackson, was an outspoken advocate of Indian removal. So tribal chief John Ross hired former U.S. attorney general William Wirt to take their case to court.
Wirt first tried to find a criminal case in which Georgia prosecutors were taking over law enforcement responsibilities that the tribal government believed it should be exercising. That would allow the tribe to directly assert its authority in court. When the state charged a tribal member named George Tassels with murdering another tribesman on tribal land, Wirt had his opportunity. He filed an appeal, arguing that the case should be decided by the Cherokee courts, and it would have been if Georgia had not unconstitutionally nullified its jurisdiction. Marshall agreed to hear the case—whereupon the state defiantly put Tassels to death and proclaimed that “the interference by the chief justice of the supreme court of the United States in the administration of the criminal laws of this state is a flagrant violation of her rights.” The state legislature even ordered its governor to “disregard any and every mandate and process . . . purporting to proceed from the chief justice.”86 The state’s brazenness paid off; Tassels’s death rendered the case moot, and it was closed. Wirt had lost the first round.
Worried that time was running out, he next tried suing Georgia directly in federal court on behalf of the tribe. That lawsuit, Cherokee Nation v. Georgia, resulted in a loss. As in Marbury, Marshall ruled that he had no jurisdiction to decide the case. But, again as in Marbury, he began with a discussion of the broader issues. “If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined,” he wrote. The Cherokee, “once numerous, powerful, and truly independent,” had “yielded their lands by successive treaties, each of which contains a solemn guarantee,” and now the state was seeking to override that guarantee.87 Yet the Supreme Court could act only if it had jurisdiction. And although the Constitution allowed it to hear cases between states and “foreign states,” tribes were not foreign states. They were “domestic dependent nations”—wards of the federal government who “look to our government for protection; rely upon its kindness and its power; [and] appeal to it for relief to their wants.”88 Although “the acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts,” the tribe was not foreign, and that meant it could not sue Georgia in federal court.89
The next year, Wirt was ready with another lawsuit. Worcester v. Georgia was a criminal case in which the state jailed missionary Samuel Worcester for preaching on Indian lands without a state license. Arguing that the state had no power to impose such a licensing requirement, Worcester volunteered to be arrested to create a test case, and when it reached the Supreme Court, Marshall at last delivered the tribe the victory it had hoped for—or so it seemed.
However valid the “conquest”-based authority Marshall had supported in Johnson, it could not justify the state’s effort “to interfere with the internal affairs of the Indians.”90 On the contrary, the Cherokee were “under the protection of the United States, and of no other power.”91 Given that federal treaties had “assum[ed] the duty” of protecting the tribe and “pledg[ed] the faith of the United States for that protection,” any attempt by Georgia to abolish the tribe or interfere with its internal concerns was unconstitutional.92 The Cherokee nation was “a distinct community . . . in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress.”93
Worcester was classic John Marshall: forty-two pages of legal logic with no bombast and few citations to precedent, proceeding from premises to conclusion by its own force of thought. But as his colleague Joseph Story recognized, that alone would not protect the Cherokee. “Georgia is full of anger and violence,” he wrote to a friend. “Probably she will resist the execution of our judgment, and if she does, I do not believe the President will interfere.”94 Story’s prediction proved correct: President Jackson did nothing. Nor had he technically been ordered to; Marshall had commanded the state to free Worcester, and it did. But he could not order the White House to protect the tribe or change its position on Indian removal. In the end, Jackson backed the Georgians, and the Trail of Tears began.
We, the People
John Marshall died in 1835 at the age of eighty, having served on the Supreme Court for thirty-four years. He had presided over some of the most important decisions of the nation’s early life and remained faithful to the principle of dual sovereignty, emphasizing that the United States was not a collection of sovereignties but a genuine nation. Recognizing states’ rights theory as a prelude to secession and civil war, he never wavered on the principle that
the people made the constitution, and the people can unmake it. . . . But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any sub-division of them. The attempt of any of the [states] to exercise it is usurpation.95
Yet states’ rights doctrine continued to grow in popularity, and he feared his words had not been enough. “I yield slowly and reluctantly to the conviction that our constitution cannot last,” he told Story in 1832. “The union has been prolonged thus far by miracles. I fear they cannot continue.”96
Despite his forebodings, however, Marshall persisted to the end in what he believed to be the only solution: calm rationality and patient logic. “In the excitement produced by ardent controversy,” he wrote in his final judicial opinion, “gentlemen view the same object through such different media, [and] minds not unfrequently receive therefrom precisely opposite impressions. The Court, however, must see with its own eyes, and exercise its own judgment, guided by its own reason.”97
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1. Quoted in Edward S. Corwin, John Marshall and the Constitution(New Haven, CT: Yale University Press, 1920), 41–42.
2. Letter to James Madison, November 26, 1795, in Writings of Thomas Jefferson, vol. 7, edited byPaul Leicester Ford (New York: G. P. Putnam’s Sons, 1896), 38.
3. Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, vol. 5(Washington, DC: Blair & Rives, 1845), 213.
4. Elliot, Debates in the Several State Conventions, vol. 5, 213.
5. Elliot, Debates in the Several State Conventions, vol. 3, 44.
6. Bernard Bailyn, ed., Debate on the Constitution, vol. 2 (New York: Library of America, 1993), 596–97.
7. Quoted in Jean Edward Smith, John Marshall: Defender of a Nation(New York: Holt, 1996), 119.
8. Bailyn, Debate on the Constitution, vol. 2, 619.
9. Federalist33, in The Federalist, edited by J. Cooke (Middletown, CT: Wesleyan University Press, 1961), 207.
10. Federalist15, 93; Federalist33, 207.
11. Federalist45, 309.
12. Federalist45, 309.
13. See, for example, Printz v. United States, 521 U.S. 898, 918–22 (1997).
14. Bailyn, Debate on the Constitution, vol. 2, 735.
15. Bailyn, Debate on the Constitution, vol. 2, 731–32.
16. Elliot, Debates in the Several State Conventions, vol. 3, 578.
17. William Frenandez Hardin, “‘This Unpleasant Business’: Slavery, Law, and the Pleasants Family in Post-Revolutionary Virginia,” Virginia Magazine of History and Biography125, no. 3 (2017): 211–45; Timothy Sandefur, “Why the Rule against Perpetuities Mattered in Pleasants v. Pleasants,” Real Property Probate and Trust Journal40 (2006): 667–77.
18. The rule decrees that any gift in a will that is conditioned on something occurring in the future is only valid if it will definitely and fully belong to the recipient within twenty-one years of the life span of someone alive when that will is written. Thus if John leaves his farm to Richard on the condition that Richard graduates from college, that gift is legal because, as a logical necessity, Richard must graduate within the life-plus-twenty-one-year period (he must be alive to graduate). But a gift to Richard’s first grandchild who graduates from college is not valid, because Richard may never have a grandchild, or his grandchild might be born more than twenty-one years after John’s death. In Pleasants, the rule was important because the will did not command Pleasants’ children to free the slaves but purported to bequeath freedom directly to the slaves themselves. The validity of that gift then depended on the rule. Wythe ruled that the gift was valid because a slave must necessarily be alive to enjoy freedom—and the slaves’ children were free because they were the children of free persons. This is dubious as a logical matter—the legislature might never have passed such a law—but it satisfied the court. See Sandefur, “Why the Rule against Perpetuities Mattered,” 673. In the decades after Pleasants, some southern courts refused to rely on the Pleasantsprecedent on the grounds that slaves are not persons but property and cannot inherit anything under a will. “Every thing which belongs to [the slave], belongs to his owner,” declared a South Carolina court, “and it would be absurd to say, that property can own property.” Lenoir v. Sylvester, 17 S.C.L. 632, 642 (1830).
19. Quoted in Smith, John Marshall,489.
20. Letter to Timothy Pickering, March 20, 1826, in Marshall: Writings,638–39.
21. The Antelope, 23 U.S. 66, 120–21 (1825).
22. This incident, overlooked by most prominent Marshall biographers, is described in detail in Kurt T. Lash & Alicia Harrison, “Minority Report: John Marshall and the Defense of the Alien and Sedition Acts,” Ohio State Law Journal68 (2007): 435–516. The Minority Report does not appear in most collections of Marshall’s writings, including Hobson’s.
23. John Marshall, Report of the Minority on the Virginia Resolutions, January 22, 1799, in Scott J. Hammond and Kevin R. Hardwick, eds., Classics of American Political and Constitutional Thought, vol. 1 (Indianapolis: Hackett, 2007),669–72.
24. James Madison, Report on the Virginia Resolutions, Jack Rakove, ed., James Madison: Writings(New York: Library of America, 1999),608–62. Madison’s argument that the First Amendment includes—but goes beyond—the common law rule against prior restraints has never been expressly resolved by the Supreme Court, although in practice it has made clear that the punishment-after-publication principle allowed by the common law rule would violate the First Amendment.
25. Marshall, Report of the Minority on the Virginia Resolutions, 672.
26. Although anonymous writing on political subjects was the norm at the time, anonymity was also warranted in this case by the fact that the resolutions themselves constituted seditious libel under the Sedition Act. Although Jefferson was then vice president (the Sedition Act notably did notprohibit criticism of the vice president) and Madison was serving in the House of Representatives, the Adams administration did in fact imprison and fine a sitting Congressman, Matthew Lyon, for publicly criticizing the president.
27. Thomas Jefferson, The Kentucky Resolutions, in Merrill Peterson, ed., Thomas Jefferson: Writings(New York: Library of America, 1984), 449–56.
28. Letter to George Washington, January 8, 1799, in Marshall: Writings, 151.
29. The best account of Marbury v. Madisonis found in Gordon S. Wood, Empire of Liberty: A History of the Early Republic 1789–1815(Oxford: Oxford University Press, 2009), chap. 12.
30. In fact, it was Marshall himself, as Adams’s secretary of state, who was responsible for the failure to hand over Marbury’s commission.
31. Marshall: Writings,241, 237.
32. Marshall: Writings,250. Contrary to a popular misconception, Marburydid not originate the idea that courts can declare laws unconstitutional—the concept known today as “judicial review.” That idea had been well known to British lawyers for a century and a half before the Revolution, and Marshall himself had referred to it in his Virginia Ratification Convention speech.
33. Letter to William Johnson, June 12, 1823, in Jefferson: Writings, 1474.
34. Marshall: Writings,229.
35. Marshall: Writings, 348.
36. Marshall: Writings, 348.
37. Gibbons v. Ogden(1824),Marshall: Writings, 607–32; Cohens v. Georgia(1821), Marshall: Writings, 528–64; United States v. Burr(1807), Marshall: Writings,286–338.
38. Thomas Jefferson, Opinion on the Constitutionality of a National Bank, in Jefferson: Writings, 419.
39. Hamilton, Opinion on the Constitutionality of a National Bank, in Joanne B. Freeman, ed., Alexander Hamilton: Writings(New York: Library of America, 2001), 618.
40. Hamilton: Writings, 621.
41. Hamilton: Writings, 619.
42. Madison explained this apparent inconsistency by arguing that the American people had accepted Washington’s judgment as to its constitutionality, and that it would be more disruptive to the nation to reevaluate that question years later. Letter to Charles Jared Ingersoll, June 25, 1831, in Marvin Meyers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison(Hanover, NH: Brandeis University Press, 1981),390–93.
43. McCulloch v. Maryland, 17 U.S. 316, 363 (1819) (argument of Mr. Jones).
44. McCulloch v. Maryland, 376 (argument of Mr. Martin).
45. Marshall: Writings,413.
46. Marshall: Writings, 414.
47. Marshall: Writings, 415.
48. It was convenient for Marshall to do so; he had access to Washington’s papers as part of his work on his multivolume Washington biography.
49. Marshall: Writings, 421.
50. Marshall: Writings, 422.
51. Marshall: Writings, 415.
52. Marshall: Writings, 426–27.
53. Letter to Spencer Roane, September 2, 1819, in Madison: Writings, 733–37.
54. Randy E. Barnett, “The Original Meaning of the Necessary and Proper Clause,” University of Pennsylvania Journal of Constitutional Law6 (2003): 207. See also David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888(Chicago: University of Chicago Press, 1985), 164.
55. National Federation of Independent Business v. Sebelius, 567 U.S. 519, 559 (2012).
56. Letter to William Cabell Rives, March 12, 1833, Madison: Writings,863–66.
57. Letter to Edward Everett, August 28, 1830, Madison: Writings, 842–52.
58. Madison, “Advice to my Country,” 1834, Madison: Writings, 866. Madison struggled—with little success—to argue that the Kentucky and Virginia Resolutions had never endorsed states’ rights theory, and he eventually admitted that Jefferson’s wording had been “less guarded” than it should have been. Still, he insisted, if “the abuse of the expression [had] been foreseen or suspected” at the time, he and his friend would have been more careful. Letter to Nicholas Trist, December 23, 1832, in Madison: Writings, 861–63.
59. Marshall to Joseph Story, October 15, 1830, Marshall: Writings, 724–25.
60. When Jefferson wrote that he hoped states would “crush in its birth the aristocracy of our monied corporations which dare already to challenge our government to a trial by strength, and bid defiance to the laws of our country”—a quote often used to portray Jefferson as hostile to modern capitalism—he was referring to this older conception of the inherently monopolistic corporation, not to the private business corporation that was in its infancy at that time. Letter to George Logan, November 12, 1816, Writings of Thomas Jefferson,vol. 10, 69.
61. Not solely responsible, however. The first general incorporation law—whereby the corporate form was made available to anyone who applied, rather than being established on a case-by-case basis by legislative act—was enacted in 1795 in North Carolina. These statutes “radically transformed” the nature of the corporation. Gordon Wood, The Radicalism of the American Revolution (New York: Knopf, 1992), 318. See also Robert Hessen, In Defense of the Corporation (Stanford: Hoover Institution Press, 1978), chap. 3; Timothy Sandefur, The Right to Earn a Living (Washington, DC: Cato Institute, 2010), 26–31.
62. Ogden v. Saunders, 25 U.S. 213, 259–60 (1827).
63. Marshall: Writings, 654.
64. Marshall: Writings, 658.
65. Marshall: Writings, 659.
66. Marshall: Writings, 661.
67. The best book on this epochal case is Stanley I. Kutler, Privilege and Creative Destruction: The Charles River Bridge Case (New York: Norton, 1971).
68. For instance, when the court upheld a state law that regulated steamships on interstate waterways—something Marshall thought states had little power to do—Story wrote that he had “the consolation to know” that “that great constitutional jurist, the late Mr. Chief Justice Marshall” would have agreed with his own dissenting view. Mayor of New York v. Miln, 36 U.S. 102, 161 (1837).
69. Quoted in Kutler, Privilege and Creative Destruction, 95.
70. Charles River Bridge v. Warren Bridge, 36 U.S. 420, 547–48 (1837).
71. Charles River Bridge, 548, 551.
72. Charles River Bridge, 552–53.
73. Charles River Bridge, 616 (Story, J., dissenting).
74. Charles River Bridge, 603, 598 (Story, J., dissenting).
75. Charles River Bridge, 608 (Story, J., dissenting).
76. Charles River Bridge, 598 (Story, J., dissenting). Kutler, however, believes Marshall would have agreed with Taney’s opinion. Story’s failure to expressly declare that Marshall would have agreed with him—as he did in Miln, for instance—is “the best evidence” for this in Kutler’s view. Privilege and Creative Destruction, 172–79.
77. Charles River Bridge, 36 U.S. at 617 (Story, J., dissenting).
78. The best account of Johnsonand other cases is Stuart Banner, How the Indians Lost Their Land (Cambridge, MA: Harvard University Press, 2005), 178–90, although my view of Marshall’s sympathies differs considerably from his.
79. Marshall: Writings, 575.
80. Marshall: Writings, 596.
81. N. Bruce Duthu, American Indians and the Law(New York: Viking, 2008), 70.
82. Marshall: Writings, 586.
83. Marshall to Story, October 29, 1828, in Marshall: Writings,695.
84. Marshall: Writings, 587, 578.
85. See Timothy Sandefur, “Sequoyah and the Vital Nature of the Written Word,” The Objective Standard 13, no. 3(Fall 2018): 53–69, https://www.theobjectivestandard.com/2018/08/sequoyah-and-the-vital-nature-of-the-written-word/.
86. Quoted in Smith, John Marshall,516.
87. Marshall: Writings, 731.
88. Marshall: Writings, 733.
89. Marshall: Writings, 732.
90. Marshall: Writings, 764.
91. Marshall: Writings, 768.
92. Worcester v. Georgia, 31 U.S. 515, 519 (1832). This sentence does not appear in the original manuscript version of the opinion, which is the version used in Marshall: Writings.
93. Marshall: Writings,778.
94. Letter to George Ticknor, March 8, 1832, in William W. Story, ed., Life and Letters of Joseph Story, vol. 2(Boston: Little, Brown, 1851), 83.
95. Marshall: Writings,537.
96. Letter to Joseph Story, September 22, 1832, Marshall: Writings, 823–24.
97. Mitchel v. United States, 34 U.S. 711, 716 (1835).