Chief Justice John Marshall (1801–1835)

Abstract

Chief Justice John Marshall (1801-1835) HerbertA. Johnson* The Supreme Court Historical Society is to be complimented upon its decision to focus upon the changing place ofthe ChiefJustice of the United States throughout history. Both the legal profession and society in general, have become very presentist in theirperceptions, and all of us tend to forget that today’s Supreme Court just “ain’t what it used to be.” This is not to make a value judgment concerning ei­ ther past or present membership of the Court. Quite the contrary, our focus must be on the evolution of what for many of us is the most important branch ofour federal government— the Supreme Court ofthe United States and the constitutionally denominated “inferior courts” established by Congress in accordance with Article III ofthe Constitution. It is within that framework that we are asked to take a close look at a group of Chief Justices who have played a significant role in shaping the Court into the institution of today. John Marshall’s Significance Few ofus have not spent some time study­ ing the contributions of Chief Justice John Marshall toAmerican constitutional law. How­ ever, on this occasion it will help to put matters in perspective by way of a brief review. In Marbury v. Madison, Marshall brought judi­ cial review into the Supreme Court’s case law, adopting the rationale of Federalist Number 78, and following the lead ofa number ofstate tribunals and lower federal courts.1 Marbury’s importance lies not in its originality, but rather in its establishment of the Supreme Court as the primary instrument for constitutional inter­ pretation within the United States. In Fletcher v. Peck and Dartmouth College, the ChiefJus­ tice providedan expansive interpretationofthe Contract Clause necessary to the Supreme Court’s task ofinvalidatingstate economicregu­ lation subversive ofprivate property rights. In 4 JOURNAL 1998, Vol. I conjunction with other cases, Fletcher and Dartmouth College encouragedAmerican eco­ nomic developmentby providing federal guar­ antees to both foreign and domestic investors.2 Free trade among the American states still rests upon Chief Justice Marshall’s encyclopedic decision in Gibbons v. Ogden, which killed the dragon of state mercantilism and opened the channels ofcommerce throughout the Union.3 These economic decisions have not gone with­ out criticism,4 but they were critical to the sur­ vival ofwhatwe todaywould call a “thirdworld nation,” shaken by political disunity and threat­ ened by economic chaos. The cornerstone in Marshall’s constitu­ tional arch was McCulloch v. Maryland, the case that upheld the constitutionality of the Second Bank ofthe United States and defended it from a Maryland state tax imposed upon its bank note issue. Following a careful catalog­ ing ofthe concepts ofenumerated and implied powers, the ChiefJustice read into law a broad, or loose, construction of the Necessary and Proper Clause. McCulloch provided a sound constitutionalbasis upon which to exempt fed­ eral governmental activity from state interfer­ ence. Finally, it recognized that taxing power was concurrent in both the federal and state governments, and began the tedious process ofdelineatingwhatstatetaxesmightlegitimately be imposed on federal operations.5 To this catalog ofMarshall’s constitutional law decisions we must add those important opinions that defined the Supreme Court’s ju­ risdiction. Principal among these was Cohens v. Virginia, whichwas a criminalprosecution in Virginia, based upon the defendants’ sale of a District ofColumbia lottery ticket. In their de­ fense, the Cohens brothers argued that since the lottery was established by Congressional statute, it was supreme over state criminal law. Ultimately, the Court held that the District of Columbia lottery was a local matter, and that Congress had not intended the statute to ap­ ply throughout the United States. Thus Chief Justice Marshall was able to deny reliefto the defendants, and avoid confrontation with the Virginia authorities. However, the key decision in the case was the Supreme Court’s accep­ tance ofjurisdiction. Virginia had argued that the Supreme Court lacked authority to hear an appeal brought against the state, which claimed the protection of the Eleventh Amendment. Marshall rejected this assertion of immunity from appellate review by the Supreme Court of the United States. In doing so, he held that in situations where jurisdiction is based upon a federal question...