Page:EB1911 - Volume 17.djvu/788

Rh Democratic presidents, and before their elevation to the bench supposed to be out of sympathy with the federalistic ideas of the chief-justice. Yet in matters pertaining to constitutional construction, they seem to have had hardly any other function than to add the weight of their silent concurrence to the decision of their great chief. Thus the task of expounding the constitution during the most critical period of its history was his, and it was given to him to preside over the Supreme Court when it was called upon to decide four cases of vital importance: Marbury v. Madison, M‘Culloch v. Maryland, Cohens v. Virginia and Gibbons v. Ogden. In each of these cases it is Marshall who writes the opinion of the court; in each the continued existence of the peculiar Federal system established by the Constitution depended on the action of the court, and in each the court adopted a principle which is now generally perceived to be essential to the preservation of the United States as a federal state.

In Marbury v. Madison, which was decided two years after his elevation to the bench, he decided that it was the duty of the court to disregard any act of Congress, and, therefore, a fortiori any act of a legislature of one of the states, which the court thought contrary to the Federal Constitution.

In Cohens v. Virginia, in spite of the contention of Jefferson and the then prevalent school of political thought that it was contrary to the Constitution for a person to bring one of the states of the United States, though only as an appellee, into a court of justice, he held that Congress could lawfully pass an act which permitted a person who was convicted in a state court, to appeal to the Supreme Court of the United States, if he alleged that the state act under which he was convicted conflicted with the Federal Constitution or with an act of Congress.

In M‘Culloch v. Maryland, though admitting that the Federal government is one of delegated powers and cannot exercise any power not expressly given in the Constitution, he laid down the rule that Congress in the exercise of a delegated power has a wide latitude in the choice of means, not being confined in its choice of means to those which must be used if the power is to be exercised at all.

Lastly, in Gibbons v. Ogden, he held that when the power to regulate interstate and foreign commerce was conferred by the Constitution on the Federal government, the word “commerce” included not only the exchange of commodities, but the means by which interstate and foreign intercourse was carried on, and therefore that Congress had the power to license vessels to carry goods and passengers between the states, and an act of one of the states making a regulation which interfered with such regulation of Congress was, pro tanto, of no effect. It will be seen that in the first two cases he established the Supreme Court as the final interpreter of the Constitution.

The decision in M‘Culloch v. Maryland, by leaving Congress unhampered in the choice of means to execute its delegated powers, made it possible for the Federal government to accomplish the ends of its existence. “Let the end be legitimate,” said Marshall in the course of its opinion, “let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”

If the decision in M‘Culloch v. Maryland gave vigour to all Federal power, the decision in Gibbons v. Ogden, by giving the Federal government control over the means by which interstate and foreign commerce is carried on, preserved the material prosperity of the country. The decision recognizes what the framers of the Constitution recognized, namely that the United States is an economic union, and that business which is national should be under national, not state, control.

Though for the reasons stated, the four cases mentioned are the most important of his decisions, the value of his work as an expounder of the Constitution of the United States is not to be measured by these cases alone. In all he decided forty-four cases involving constitutional questions. Nearly every important part of the Constitution of the United States as it existed before the amendments which were adopted after the Civil War, is treated in one or more of them. The Constitution in its most important aspects is the Constitution as he interpreted it. He did not work out completely the position of the states in the Federal system, but he did grasp and establish the position of the Federal legislature and the Federal judiciary. To appreciate his work, however, it is necessary to see that it was the work not of a statesman but of a judge. Had Marshall been merely a far-seeing statesman, while most of his important cases would have been decided as he decided them, his life-work would have been a failure. It was not only necessary that he should decide great constitutional questions properly, but also that the people of the United States should be convinced of the correctness of his interpretation of the Constitution. His opinions, therefore, had to carry to those who studied them a conviction that the constitution as written had been interpreted according to its evident meaning. They fulfilled this prime requisite. Their chief characteristic is the cumulative force of the argument. The ground for the premiss is carefully prepared, the premiss itself is clearly stated; nearly every possible objection is examined and answered; and then comes the conclusion. There is little or no repetition, but there is a wealth of illustration, a completeness of analysis, that convinces the reader, not only that the subject has been adequately treated, but that it has been exhausted. His style, reflecting his character, suits perfectly the subject matter. Simple in the best sense of the word, his intellectual processes were so clear that he never doubted the correctness of the conclusion to which they led him. Apparently from his own point of view, he merely indicated the question at issue, and the inexorable rules of logic did the rest. Thus his opinions are simple, clear, dignified. Intensely interesting, the interest is in the argument, not in its expression. He had, in a wonderful degree, the power of phrase. He expressed important principles of law in language which tersely yet clearly conveyed his exact meaning. Not only is the Constitution interpreted largely as he taught the people of the United States to interpret it, but when they wish to express important constitutional principles which he enunciated they use his exact words. Again, his opinions show that he adhered closely to the words of the Constitution; indeed no one who has attempted to expound that instrument has confined himself more strictly to an examination of the text. In the proper, though not in the historical, sense he was the strictest of strict constructionalists, and as a result his opinions are practically devoid of theories of government, sovereignty and the rights of man.

A single illustration of his avoidance of all theory and his adherence to the words of the Constitution will suffice. In the case of the United States v. Fisher the constitutional question involved was the power of Congress to give to the United States a preference over all other creditors in the distribution of the assets of a bankrupt. Such an act can be upheld on the ground that all governments have necessarily the right to give themselves priority. Not so Marshall. To him the act must be supported, if supported at all, not on any theory of the innate nature of the government, national or otherwise, but as a reasonable means of carrying out one of the express powers conferred by the Constitution on the Federal government. Thus, he upholds the act in question because of the power expressly conferred on the Federal government to pay the debts of the union, and as a necessary consequence of this power the right to make remittances by bills or otherwise and to take precautions which will render the transactions safe.

It is important to emphasize the fact that Marshall adhered in his opinions to the Constitution as written, not only because it is a fact which must be recognized if we are to understand the correct value of his work in the field of constitutional law, but also because there exists to-day a popular impression that by implication he stretched to the utmost the powers of the Federal government. This impression is due primarily to the ignorance of many of those who have undertaken to praise him. During his life he was charged by followers of the States Rights School of political thought with upholding Federal power in cases not warranted by the constitution. Later, however, those who admired a strong national government, without taking the trouble to ascertain whether the old criticism by members of the States Rights Party was just, regarded the assumption on which it was founded as Marshall’s best claim to his country’s gratitude.

As a constitutional lawyer, Marshall stands without a rival. His work on international law and admiralty is of first rank. But though a good, he was not a great, common law or equity lawyer. In these fields he did not make new law nor clarify what was obscure, and his constitutional opinions which to-day are found least satisfactory are those in which the question to be solved necessarily involves the discussion of some common-law