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- John Marshall and the Constitution, - 20/27 -


considerable benefit: in the words of a contemporary critic, it put private institutions of learning and charity out of the reach of "legislative despotism and party violence."

* Much of the evidence is readily traceable through the Index to Max Farrand's "Records of the Federal Convention."

But doubtless, the critic will urge, by the same sign this decision also put profit-seeking corporations beyond wholesome legislative control. But is this a fact? To begin with, such a criticism is clearly misdirected. As we have just seen, the New Hampshire Superior Court itself would have felt that Fletcher vs. Peck left it no option but to declare the amending act void, had Dartmouth College been, say, a gas company; and this was in all probability the universal view of bench and bar in 1819. Whatever blame there is should therefore be awarded the earlier decision. But, in the second place, there does not appear after all to be so great measure of blame to be awarded. The opinion in Dartmouth College vs. Woodward leaves it perfectly clear that legislatures may reserve the right to alter or repeal at will the charters they grant. If therefore alterations and repeals have not been as frequent as public policy has demanded, whose fault is it?

Perhaps, however, it will be argued that the real mischief of the decision has consisted in its effect upon the state Legislatures themselves, the idea being that large business interests, when offered the opportunity of obtaining irrepealable charters, have frequently found it worth their while to assail frail legislative virtue with irresistible temptation. The answer to this charge is a "confession in avoidance"; the facts alleged are true enough but hardly to the point. Yet even if they were, what is to be said of that other not uncommon incident of legislative history, the legislative "strike," whereby corporations not protected by irrepealable charters are blandly confronted with the alternative of having their franchises mutilated or of paying handsomely for their immunity? So the issue seems to resolve itself into a question of taste regarding two species of legislative "honesty." Does one prefer that species which, in the words of the late Speaker Reed, manifests itself in "staying bought," or that species which flowers in legislative blackmail? The truth of the matter is that Marshall's decision has been condemned by ill-informed or ill-intentioned critics for evils which are much more simply and much more adequately explained by general human cupidity and by the power inherent in capital. These are evils which have been experienced quite as fully in other countries which never heard of the "obligation of contracts" clause.

The decisions reached in Fletcher vs. Peck and Dartmouth College vs. Woodward are important episodes in a significant phase of American constitutional history. Partly on account of the lack of distinction between legislative and judicial power and partly on account of the influence of the notion of parliamentary sovereignty, legislative bodies at the close of the eighteenth century were the sources of much anonymous and corporate despotism. Even in England as well as in this country the value, and indeed the possibility, of representative institutions had been frankly challenged in the name of liberty. For the United States the problem of making legislative power livable and tolerable--a problem made the more acute by the multiplicity of legislative bodies--was partly solved by the establishment of judicial review. But this was only the first step: legislative power had still to be defined and confined. Marshall's audacity in invoking generally recognized moral principles against legislative sovereignty in his interpretation of the "obligation of contracts" clause pointed the way to the American judiciaries for the discharge of their task of defining legislative power. The final result is to be seen today in the Supreme Court's concept of the police power of a State as a power not of arbitrary but of reasonable legislation.

While Marshall was performing this service in behalf of representative government, he was also aiding the cause of nationalism by accustoming certain types of property to look upon the National Government as their natural champion against the power of the States. In this connection it should also be recalled that Gibbons vs. Ogden and Brown vs. Maryland had advanced the principle of the exclusiveness of Congress's power over foreign and interstate commerce. Under the shelter of this interpretation there developed, in the railroad and transportation business of the country before the Civil War, a property interest almost as extensive as that which supported the doctrine of State Rights. Nor can it be well doubted that Marshall designed some such result or that he aimed to prompt the reflection voiced by King of Massachusetts on the floor of the Federal Convention. "He was filled with astonishment that, if we were convinced that every man in America was secured in all his rights, we should be ready to sacrifice this substantial good to the phantom of STATE sovereignty."

Lastly, these decisions brought a certain theoretical support to the Union. Marshall himself did not regard the Constitution as a compact between the States; if a compact at all, it was a compact among individuals, a social compact. But a great and increasing number of his countrymen took the other view. How unsafe, then, it would have been from the standpoint of one concerned for the integrity of the Union, to distinguish public contracts from private on the ground that the former, in the view of the Constitution, had less obligation!

CHAPTER VII. The Menace Of State Rights

Marshall's reading of the Constitution may be summarized in a phrase: it transfixed State Sovereignty with a two-edged sword, one edge of which was inscribed "National Supremacy," and the other "Private Rights." Yet State Sovereignty, ever reanimated by the democratic impulse of the times, remained a serpent which was scotched but not killed. To be sure, this dangerous enemy to national unity had failed to secure for the state Legislatures the right to interpret the Constitution with authoritative finality; but its argumentative resources were still far from exhausted, and its political resources were steadily increasing. It was still capable of making a notable resistance even in withdrawing itself, until it paused in its recoil and flung itself forward in a new attack.

The connecting link between the Supreme Court and the state courts has already been pointed out to be Section XXV of the Act of 1789 organizing the Federal Judiciary.* This section provides, in effect, that when a suit is brought in a state court under a state law, and the party against whom it is brought claims some right under a national law or treaty or under the Constitution itself, the highest state court into which the case can come must either sustain such a claim or consent to have its decision reviewed, and possibly reversed, by the Supreme Court. The defenders of State Rights at first applauded this arrangement because it left to the local courts the privilege of sharing a jurisdiction which could have been claimed exclusively by the Federal Courts. But when State Rights began to grow into State Sovereignty, a different attitude developed, and in 1814 the Virginia Court of Appeals, in the case of Hunter vs. Martin, pronounced Section XXV void, though, in order not to encourage the disloyal tendencies then rampant in New England, the decision was not published until after the Treaty of Ghent, in February, 1815.

* See Chapter I.

** 4 Munford (Va.), 1. See also William E. Dodd's article on "Chief Justice Marshall and Virginia in American Historical Review," vol. XII, p. 776.

The head and front of the Virginia court at this time was Spencer Roane, described as "the most powerful politician in the State," an ardent Jeffersonian, and an enemy of Marshall on his own account, for had Ellsworth not resigned so inopportunely, late in 1800, and had Jefferson had the appointment of his successor, Roane would have been the man. His opinion in Hunter vs. Martin disclosed personal animus in every line and was written with a vehemence which was more likely to discomfit a grammarian than its designed victims; but it was withal a highly ingenious plea. At one point Roane enjoyed an advantage which would not be his today when so much more gets into print, for the testimony of Madison's Journal, which was not published till 1840, is flatly against him on the main issue. In 1814, however, the most nearly contemporaneous evidence as to the intention of the framers of the Constitution was that of the "Federalist," which Roane stigmatizes as "a mere newspaper publication written in the heat and fury of the battle," largely by "a supposed favorer of a consolidated government." This description not only overlooks the obvious effort of the authors of the "Federalist" to allay the apprehensions of state jealousy but it also conveniently ignores Madison's part in its composition. Indeed, the enfant terrible of State Rights, the Madison of 1787-88, Roane would fain conceal behind the Madison of ten years later; and the Virginia Resolutions of 1798 and the Report of 1799 he regards the earliest "just exposition of the principles of the Constitution."

To the question whether the Constitution gave "any power to the Supreme Court of the United States to reverse the judgment of the supreme court of a State," Roane returned an emphatic negative. His argument may be summarized thus: The language of Article III of the Constitution does not regard the state courts as composing a part of the judicial organization of the General Government; and the States, being sovereign, cannot be stripped of their power merely by implication. Conversely, the General Government is a government over individuals and is therefore expected to exercise its powers solely through its own organs. To be sure, the judicial power of the United States extends to "all cases arising" under the Constitution and the laws of the United States. But in order to come within this description, a case must not merely involve the construction of the Constitution or laws of the United States; it must have been instituted in the United States courts, and not in those of another Government. Further, the Constitution and the acts of Congress "in pursuance thereof" are "the supreme law of the land," and "the judges in every State" are "bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." But they are bound as state judges and only as such; and what the Constitution is, or what acts of Congress are "in pursuance" of it, is for them to declare without any correction or interference by the courts of another jurisdiction. Indeed, it is through the power of its courts to say finally what acts of Congress are constitutional and what are not, that the State is able to exercise its right of arresting within its boundaries unconstitutional measures of the General Government. For the legislative nullification of such measures proposed by the Virginia and Kentucky resolutions is


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