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John Marshall And The Constitution,
A Chronicle Of The Supreme Court

By Edward S. Corwin

Despite all these concessions which he made to the rising spirit of the times, Marshall found his last years to be among the most trying of his chief justiceship. Jackson, who was now President, felt himself the chosen organ of "the People's will" and was not disposed to regard as binding anybody's interpretation of the Constitution except his own. The West and Southwest, the pocket boroughs of the new Administration, were now deep in land speculation and clamorous for financial expedients which the Constitution banned. John Taylor of Caroline had just finished his task of defining the principles of constitutional construction which were requisite to convert the Union into a league of States and had laid his work at the feet of Calhoun. Taylor was a candid man and frankly owned the historical difficulties in the way of carrying out his purpose; but Calhoun's less scrupulous dialectic swept aside every obstacle that stood in the way of attributing to the States the completest sovereignty.

In Craig vs. Missouri (1830)* the Court was confronted with a case in which a State had sought to evade the prohibition of the Constitution against the emission of bills of credit by establishing loan offices with authority to issue loan certificates intended to circulate generally in dimensions of fifty cents to ten dollars and to be receivable for taxes. A plainer violation of the Constitution would be difficult to imagine. Yet Marshall's decision setting aside the act was followed by a renewed effort to procure the repeal of Section XXV of the Judiciary Act. The discussion of the proposal threw into interesting contrast two points of view. The opponents of this section insisted upon regarding constitutional cases as controversies between the United States and the States in their corporate capacities; its advocates, on the other hand, treated the section as an indispensable safeguard of private rights. In the end, the latter point of view prevailed: the bill to repeal, which had come up in the House, was rejected by a vote of 138 to 51, and of the latter number all but six came from Southern States, and more than half of them from natives of Virginia.

* 4 Peters, 410.

Meantime the Supreme Court had become involved in controversy with Georgia on account of a series of acts which that State had passed extending its jurisdiction over the Cherokee Indians in violation of the national treaties with this tribe. In Corn Tassel's case, the appellant from the Georgia court to the United States Supreme Court was hanged in defiance of a writ of error from the Court. In Cherokee Nation vs. Georgia, the Court itself held that it had no jurisdiction. Finally, in 1832, in Worcester vs. Georgia,* the Court was confronted squarely with the question of the validity of the Georgia acts. The State put in no appearance, the acts were pronounced void, and the decision went unenforced. When Jackson was asked what effort the Executive Department would make to back up the Court's mandate, he is reported to have said: "John Marshall has made his decision; now let him enforce it."

* 6 Peters, 515.

Marshall began to see the Constitution and the Union crumbling before him. "I yield slowly and reluctantly to the conviction," he wrote Story, late in 1832, "that our Constitution cannot last .... Our opinions [in the South] are incompatible with a united government even among ourselves. The Union has been prolonged this far by miracles." A personal consideration sharpened his apprehension. He saw old age at hand and was determined "not to hazard the disgrace of continuing in office a mere inefficient pageant," but at the same time he desired some guarantee of the character of the person who was to succeed him. At first he thought of remaining until after the election of 1832; but Jackson's reelection made him relinquish altogether the idea of resignation.

A few months later, in consequence of the Administration's vigorous measures against nullification in South Carolina, things were temporarily wearing a brighter aspect. Yet that the fundamental elements of the situation had been thereby altered, Marshall did not believe. "To men who think as you and I do," he wrote Story, toward the end of 1834, "the present is gloomy enough; and the future presents no cheering prospect. In the South...those who support the Executive do not support the Government. They sustain the personal power of the President, but labor incessantly to impair the legitimate powers of the Government. Those who oppose the rash and violent measures of the Executive...are generally the bitter enemies of Constitutional Government. Many of them are the avowed advocates of a league; and those who do not go the whole length, go a great part of the way. What can we hope for in such circumstances?"

Yet there was one respect in which the significance of Marshall's achievement must have been as clear to himself as it was to his contemporaries. He had failed for the time being to establish his definition of national power, it is true, but he had made the Supreme Court one of the great political forces of the country. The very ferocity with which the pretensions of the Court were assailed in certain quarters was indirect proof of its power, but there was also direct testimony of a high order. In 1830 Alexis de Tocqueville, the French statesman, visited the United States just as the rough frontier democracy was coming into its own. Only through the Supreme Court, in his opinion, were the forces of renewal and growth thus liberated to be kept within the bounds set by existing institutions. "The peace, the prosperity, and the very existence of the Union," he wrote, "are vested in the hands of the seven Federal judges. Without them the Constitution would be a dead letter: the Executive appeals to them for assistance against the encroachments of the legislative power; the Legislature demands their protection against the assaults of the Executive; they defend the Union from the disobedience of the States, the States from the exaggerated claims of the Union, the public interest against private interests and the conservative spirit of stability against the fickleness of the democracy." The contrast between these observations and the disheartened words in which Jay declined renomination to the chief justiceship in 1801 gives perhaps a fair measure of Marshall's accomplishment.

Of the implications of the accomplishment of the great Chief Justice for the political life of the country, let De Tocqueville speak again: "Scarcely any political question arises in the United States which is not resolved sooner, or later, into a judicial question. Hence all parties are obliged to borrow in their daily controversies the ideas, and even the language peculiar to judicial proceedings.... The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate."

In one respect, however, De Tocqueville erred. American "legalism," that curious infusion of politics with jurisprudence, that mutual consultation of public opinion and established principles, which in the past has so characterized the course of discussion and legislation in America, is traceable to origins long antedating Marshall's chief justiceship. On the other hand, there is no public career in American history which ever built so largely upon this pervasive trait of the national outlook as did Marshall's, or which has contributed so much to render it effective in palpable institutions.