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A Constitutional History of the United States|
Chapter XXX - Constitutional Law Under Chief Justice Marshall
by McLaughlin, Andrew C.
|In the period we are discussing, characterized on the whole by a
sentiment of nationalism and of expansion, a number of disputes concerning
national power came before the federal Court and gave to John Marshall and his
colleagues the opportunity for laying down principles of immense importance.
The opinions in these cases were based on reasoned and emphatic announcements
of national authority or they marked with distinctness certain limits on the
authority of the states. That these discussions and these opinions should have
come in those formative days, before sectionalism and state sovereignty grew
really menacing, is of much consequence; nationalism, appearing in various
other ways, was thus buttressed by judicial decision; in the settlement of
concrete controversies the very foundations of the constitutional system were
exposed, as only Marshall could expose them.
If America was to live and grow as a nation, if conflicting sectional
interests were to be reconciled, if natural forces, both geographic and
economic, which were making for nationalism, were to prevail, then no trivial
and constricted construction of the Constitution should stand in the way. One
can easily see how a narrow-minded literalist with no comprehension of the
magnitude of America might have fastened upon the basic law of the land a
construction in harmony with localism and provincialism; how easy it would have
been to place such legal obstacles in the way that the developing sense of
national unity and of sectional interdependence would have been hampered. Any
puny and pedantic construction would have held the young giant in legalistic
swaddling-clothes. Natural facts would have been in conflict with the frame and
form of the law. Neither Marshall nor anyone else created nationalism by means
of constitutional construction; but by taking a broad, forward-looking view of
realities, he and others maintained and built up a Constitution suitable for a
nation, and a developing nation at that. "... a constitution",
the Chief Justice said in one of his greatest decisions, "is framed for ages to
come, and is designed to approach immortality as nearly as human institutions
can approach it."
In 1810, Marshall delivered a significant opinion in the case of
Fletcher v. Peck. The controversy arose out of the Yazoo
land scandal of an earlier day (1795) which continued to thrust itself into the
light. Some 35,000,000 acres of land claimed by Georgia were sold by the
legislature of that state for $500,000. Every member of the legislature, save
one, voting for the measure got a share of the plunder. The state was aroused,
and the next legislature declared the act of cession to be unconstitutional and
void. But could a legislature of a state, when once a grant was
made, rescind it? Marshall said no, in the case under consideration. The
Constitution of the United States declares that no state shall pass a "law
impairing the obligation of contracts"; Marshall declared that contracts were
of two kinds, executory and executed. "A contract executed is one in which the
object of contract is performed; and this, says Blackstone, differs in nothing
from a grant." This grant of land, then, was a contract, and the provision of
the Constitution against invalidation of contracts applied not only to
contracts made by individuals but to those made by the state itself.
Two years after the Fletcher case, the Supreme Court in New Jersey
v. Wilson decided that a contract made by the state with an Indian
tribe, in which it was provided that certain lands purchased for the Indians
should not be taxed, was binding on the state; the state could not therefore
repeal the original act exempting the lands from taxation  even
when they had passed with the consent of the state into the hands of
A controversy involving a question of somewhat similar nature was
presented in the famous Dartmouth College case (1819). By a
charter received from the Crown during colonial days, the trustees of Dartmouth
College were created a body corporate. The state legislature in 1816 passed
acts to amend the charter and to enlarge and improve the corporation; the
number of trustees was increased, the governor of the state was empowered to
appoint the additional members, and provision was made for a board of overseers
to inspect and control the trustees in certain particulars. These legislative
enactments were but one incident, though an important one, in a controversy
which had long been waging, had awakened personal animosities, and had become
entangled in state politics and stained with religious rancor. As might perhaps
have been expected from Marshall's earlier decisions, the charter of
incorporation was declared by Marshall to be a contract, and its obligations
were in consequence protected by the contract clause of the Constitution. There
were serious objections to be overcome before such a decision could be reached.
Was not the college a public corporation, and should not such an institution be
subject to legislative control in the public interest? "A corporation," the
Chief Justice of the New Hampshire court had said, "all of whose franchises are
exercised for public purposes, is a public corporation." But
Marshall declared that Dartmouth College was "an eleemosynary institution,
incorporated for the purpose of perpetuating the application of the bounty of
the donors, to the specified objects of that bounty"; that the trustees or
governors were "not public officers," nor was the college "a civil institution,
participating in the administration of government...."
This is the most famous of Marshall's decisions  though
not the most far-reaching in its constitutional effects. It has not escaped
criticism, but it has stood from that day to this. It is an accepted principle,
therefore, that a charter of a private corporation is a contract as that word
is used in the Constitution. The decision, announcing limitation on a state's
authority, was of importance in industrial history; for it gave assurance of
the inviolability of corporation charters and gave stability to those great
Had Marshall's decision stood unmodified, or, let us say, had it stood
in all its apparent strength, the corporation, with its untouchable charter,
might have been beyond the reach of legislative regulation or control. The
principle, as we have said, still stands; but it has not prevented the state
from exercising reasonable control over corporations. This result is due (1) to
the recognition of the right of a state in granting charters to reserve, by
constitutional provision or in some other legal manner, the right to amend or
recall;  (2) to a principle later announced by the Court, that
charters are not to be construed as giving by implication more than the plain
terms indicate; (3) to a principle laid down, fifty years and
more after the Dartmouth College case, that a business "affected with a public
interest", whether it be carried on by a corporation or by an individual, is
subject to legislative control in certain particulars; (4) to
the principle that a state cannot by charter, or otherwise, devest itself of
the power and the duty to preserve the public health and safety; in other
words, it cannot surrender the exercise of the police power. Of
all this we shall have something to say hereafter; but it is well to point out
here that with the increase of corporations in number and in scope of activity,
and with the development of complex social and industrial order, the need of
controlling corporations and subjecting them in very large degree to the
authority of the state in the course of time was fully recognized.
The currency and banking conditions of the country were responsible for
two important decisions of the Supreme Court: McCulloch v. Maryland
(1819)  and Osborn v. Bank of United States
(1824). It is impossible to give briefly anything like an
effective picture of the financial and commercial confusion in which the people
were laboring, particularly after the disappearance of the old Bank which had
been established in 1791 and the charter of which had not been renewed in 1811.
So many kinds of notes were in circulation, so many banks were issuing notes
without specie to support them, that one wonders how business could be
conducted at all. In 1816 the second Bank of the United States was founded with
a federal charter; but for a time it did not appear to furnish an adequate
remedy for the prevailing trouble. Especially in the newer regions of the
country, the rage against the national Bank and its branches was almost
boundless; to weary and discontented folk it appeared to be only an instrument
for carrying out the schemes of money sharks, for collecting debts from the
helpless, and for drying up the sources of money. Several states proceeded to
overcome the evil by levying taxes upon the branch banks — Maryland, North
Carolina, Ohio, Tennessee, and Kentucky.
The Maryland tax law was tested in the federal Supreme Court. The
opinion of Marshall in the case has been called his greatest opinion, partly
because it laid down and supported by elaborate argument the broad powers of
the national government. This appraisal may be questioned, for the principle as
well as the practice of broad construction had been fully presented before; and
at least one other case (Cohens v. Virginia), bearing on the nature of
the union and the authority of the government, was of equal importance and the
opinion of the Chief Justice in that case was at least equally able. But the
Maryland opinion came at a peculiarly critical time; it ran counter to
widely-extended, though by no means universal, public opinion; and its
importance cannot well be overestimated.
The facts in the case are simple: Maryland had passed a law providing
that if a branch bank should be established without authority from the state,
its notes must be printed on stamped paper unless the bank relieved itself of
the obligation by paying a specified tax. The branch bank in Baltimore refused
to comply; McCulloch, the cashier, was sued for debt. The question was at
length brought before the Supreme Court. In giving the decision Marshall
thought it necessary to consider the Constitution "in its most interesting and
vital parts...." He began with a discussion of the union and the origin of the
Constitution. "The powers of the general government, it has been said, are
delegated by the states, who alone are truly sovereign; and must be exercised
in subordination to the states, who alone possess supreme dominion." In
response to this assertion he referred to the method by which the Constitution
was adopted, viz., by the people in conventions chosen for the purpose. "It is
true, they assembled in their several states — and where else should they
have assembled? No political dreamer was ever wild enough to think of breaking
down the lines which separate the states, and of compounding the American
people into one common mass. Of consequence, when they act, they act in their
states. But the measures they adopt do not, on that account, cease to be the
measures of the people themselves, or become the measures of the state
governments."  "The government of the Union, then", he declared,
"... 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."
Asserting that the government of the union, though limited in its
powers, is supreme within its sphere of action, he proceeded to develop at
length the/doctrine of implied powers. A government must have the authority to
use the means for effectively exercising the powers bestowed upon it: "Let the
end be legitimate, 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." This is the classical definition of "implied powers", and is
the doctrine of broad construction essentially like that pronounced by Hamilton
nearly thirty years before. If a corporation, therefore, is a suitable means of
carrying out delegated authority, Congress can establish a corporation; and it
may establish a bank as a suitable means for performing the fiscal operations
of the government.
But the more immediate question remained. Could Maryland tax the branch
bank? The Court decided that the state had not the right: "The sovereignty of a
state extends to everything which exists by its own authority, or is introduced
by its permission; but does it extend to those means which are employed by
Congress to carry into execution — powers conferred on that body by the
people of the United States? We think it demonstrable that it does not." The
basis of this assertion was, in part, that "the power to tax involves the power
to destroy; that the power to destroy may defeat and render useless the power
to create...." The act of Maryland was therefore
The decision in the Maryland case announced the law; but amid the
excitement and discontent of those days it was not looked upon as the final and
authoritative word. The nature of the union, the position of the states, and
the authority of the Supreme Court were still matters of dispute. The enemies
of the Bank raged and imagined many vain things. That is what makes the
decision and Marshall's opinion so important in constitutional history in the
broadest sense. It came at a time when the tide of feeling ran high and when
theories of national rights and character, very different from the theories of
Marshall, were current among the disaffected. On March 29, 1819, the
Pennsylvania legislature asked for an amendment to the Constitution prohibiting
Congress from establishing any bank except within the District of Columbia.
This resolution was disapproved by at least nine states, but was approved by
the legislatures of Tennessee, Ohio, Indiana, and Illinois.
South Carolina apprehended "no danger from the exercise of the powers which the
people of the United States have confided to Congress," while New York declared
that "the dignity, the welfare, the prosperity and the permanency of that
government (which is our pride and our admiration) forbid the adoption of the
Kentucky was much excited over a decision by the Supreme Court in the
case of Green v. Biddle, a decision which held inviolable
a contract entered into between Kentucky and Virginia when the former state was
organized. The Court declared a Kentucky statute void on the ground that it
impaired the obligations of that contract. The legislature of the state was
filled with wrath. "Any judicial act," said Governor Adair in a message to the
legislature, "that tends to alienate the minds, and consequently the
affections, of large portions of the citizens ... must in the same degree
weaken the power and render less secure the stability of the government. I need
not be told that the general government is authorized to use physical force to
put down insurrection and enforce the execution of its laws. I know it; but I
know, too, with equal certainty that the day when the government shall be
compelled to resort to the bayonet, to compel a State to submit to its law,
will not long precede an event of all others most to be deprecated."
Ohio, not overawed by the decision in the Maryland case, went on her
way. A few weeks before that decision was rendered, the legislature had passed
an act (February 8, 1819) to levy a tax of $50,000 on any bank doing business
within the state without being allowed to do so by law. When the agents of the
state proceeded to seize the money in the vault of the branch bank at
Chillicothe, the bank sought the protection of the federal court in Ohio. The
court at length ordered the return of the money and the order was ignored.
Resolutions, preceded by a committee report breathing defiance, were adopted by
the legislature and forwarded to the President and both houses of Congress
(1821). They were able if not convincing. They approved the
doctrines of the Virginia and Kentucky resolutions; they asserted the right of
the state to tax the property of any private corporation created by Congress
and doing business within the state; and they protested vigorously against the
doctrine that the "political rights" of the separate states that compose the
American union and their powers as sovereign states could be finally settled
and determined by the Supreme Court in cases contrived between
individuals. Shortly after this an act was passed "to withdraw from the Bank of
the United States the protection of the laws of this State in Certain Cases."
The bank was to be practically an outlaw in Ohio.
The validity of the decree of the lower court directed to Osborn, the
auditor of Ohio, and others, was not brought up and decided in the Supreme
Court until 1824. The case gave Marshall one more chance to lay
down the principles of the Constitution and to defend the federal judiciary.
This he did with his usual consummate skill. The most difficult question to be
decided, technically speaking, and one of vast importance, was whether the suit
was an action against the state and therefore not within the jurisdiction of
the federal judiciary because of the eleventh amendment, or, on the contrary,
whether the agents employed by the state were personally responsible. In
discussing this problem, Marshall characteristically began by disclosing the
inevitable results of adopting the theories of those against whom he was
prepared to rule: the denial of jurisdiction of the Court is, in effect, to
maintain "that the agents of a state, alleging the authority of a law void in
itself, because repugnant to the constitution, may arrest the execution of any
law in the United States. The carrier of the mail, the collector of the
revenue, the marshal of a district, the recruiting officer, may all be
inhibited, under ruinous penalties, from the performance of their respective
duties.... Each member of the Union is capable, at its will, of attacking the
nation, of arresting its progress at every step, of acting vigorously and
effectually in the execution of its designs, while the nation stands naked,
stripped of its defensive armor, and incapable of shielding its agent or
executing its laws, otherwise than by proceedings which are to take place after
the mischief is perpetrated, and which must often be ineffectual, from the
inability of the agents to make compensation." "... if the courts of the United
States cannot rightfully protect the agents who execute every law authorized by
the constitution, from the direct action of state agents in the collection of
penalties, they cannot rightfully protect those who execute any law."
 The suit, the Court declared, was not a suit against a state,
because the state was not the actual party on the record; that
is to say, though the state might have an interest in the matter, actually on
the face of the proceeding, the suit was against Osborn and not against the
state. The Court therefore held that the money seized by Osborn should be
returned to the bank. The remainder of the decision was chiefly a
reannouncement of the principles of McCulloch v. Maryland.
The significance of this case is apparent. It announced with clearness
and definiteness the authority of the United States at a time when doctrines
were abroad which menaced the efficiency of the union or threatened to
undermine it altogether. It upheld a principle of supreme importance, a
principle which may be said to underlie and support all constitutional law in a
free state, viz., that an agent cannot take refuge behind the directions of a
superior, if that superior is acting without legal right. If a state government
is acting unconstitutionally in passing an act and in directing its execution,
the officials engaged in the attempt to carry the law into effect are
personally responsible for the injury inflicted. That is the way in which
constitutional order and personal liberty are protected; governments or
legislatures cannot be sued for torts; but their agents can be. An
administrative officer cannot be entitled to do an unconstitutional act because
some higher governmental authority directs him to do so. The principle is at
the very basis of English and American free government. In private law, as
distinguished from constitutional law, the principle holds that every man is
responsible for the wrongs he inflicts; he cannot set up immunity by asserting
that he acted only as an agent of some other person; this superior person may
be himself liable for damages; but the agent who actually inflicts the wrong
cannot shift the responsibility. In fact, once adopt the principle that an
unconstitutional law is no law, it follows that the agent attempting to carry
out a law of that kind is without any authority; he is therefore individually
liable, and by the ordinary principles of the common law he is responsible for
wrongs inflicted. Without this principle it is difficult to see
how our constitutional system could be worked at all. At a later time the
Supreme Court modified that portion of Marshall's decision which declared the
question whether a suit came within the purview of the eleventh amendment and
was therefore not within the jurisdiction of the federal Court depended only on
whether or not the state was on the record a party.
In discussing the Bank cases we have passed over other matters of great
interest and importance. In 1816 Justice Story gave the opinion of the Supreme
Court on a question involving the right of that Court to review the decisions
of state courts. The Virginia court of appeals had refused to be
bound by an earlier federal decision, and had declared the twenty-fifth section
of the federal Judiciary Act of 1789 to be unconstitutional. When the Virginia
court made this announcement, the controversy was again brought before the
Supreme Court and Justice Story, in an elaborate and powerful opinion,
maintained the Court's appellate jurisdiction.
The politicians and the pamphleteers of Virginia broke forth in
argument; the discussion lasted for years. The chief defenders of a state's
right, not only primarily, but finally and conclusively, to pass upon the
validity of its own legislation, were Justice Spencer Roane and John Taylor of
Caroline. Taylor's position was rather more advanced or extreme in its doctrine
of states' rights than was that of Roane. Roane asserted, not so much absolute
and undiminished sovereignty of the state, as the right of the state to guard
the portion of sovereignty which it possessed; nothing in the
Constitution, he declared, justified Congress in bestowing upon the federal
judiciary the right of final judgment concerning the extent of a state's
powers. If the federal Court could pass authoritatively upon the validity of
federal acts, so a state court could pass conclusively upon the validity of
state acts, in cases properly coming before it. If, on the other hand, the
decision of the validity of both federal and state acts rested with the federal
Supreme Court, then in effect the states were at the mercy of the national
government, were shorn of their power and were devoid of dignity.
The importance of this contention can scarcely be overestimated;
 it came at a time when other states, or large numbers of people
within them, were clamoring against the Court and its nationalizing tendencies;
some of the arguments of states' rights were exceedingly able; party politics,
state pride, personal animosities, and real or assumed economic interests
aggravated the quarrel and added to the discontent. The theory which was set up
and strongly defended by the Virginians denied to the federal Court the
authority to maintain the federal Constitution and laws and to protect them
from state aggression. Was the union under such conditions more than a shadow,
a thing of shreds and patches?
The difficulty was that Roane had an arguable case. This does not mean
that he was right, but that his position could be defended by far more than
declamation and ill humor, which were the weapons frequently used by the
opponents of the Court. Roane went to the heart of the matter. The Constitution
did not contemplate a centralized and consolidated union, but a system in which
authority was divided; there was nothing to be found in the Constitution
expressly authorizing the central government to be the judge of the extent of
its own power, nor did the Constitution expressly deny the power of the state
courts to pass finally upon the validity of state legislation. At this very
time, it will be remembered, Ohio was putting forth its own powerful and
highly-elaborated doctrine against judicial encroachment upon the states'
If we attempt to pass upon this matter, we are led back to a
consideration of the discussions in the Federal Convention. When the
Constitution was being worked out by its framers, they turned to courts as the
instrument for preserving the federal system. The critical problem arose from
the willfulness of the states, from their readiness to disregard federal
obligations. The Convention placed in the Constitution a declaration that the
Constitution, laws, and treaties of the United States were the supreme law of
the land, and the judges in every state were to be bound thereby. The
primary obligation, in a case brought before a state court, was to recognize
the binding effect of the supreme law. There the framers left the matter, as
far as explicit statement was concerned. The Judiciary Act of 1789 provided for
appeal to the federal Supreme Court, when a litigant put forth a claim to
protection or privilege under the "supreme law" and such alleged protection or
privilege were denied him; that section of the act was now declared by the
Virginians to be unconstitutional; Congress, they said, had no legal right to
provide for such appeal; the Supreme Court in exercising such jurisdiction was
The Judiciary Act was almost contemporaneous with the organization of
the government and was passed by a Congress containing men who were in the
Convention; and that fact certainly adds weight to any argument
in favor of the constitutionality of the act. There is one thing further which
may seem technical and of slight moment, but it is actually neither: the
Constitution gives authority to Congress but does not require Congress
to establish inferior courts. The constitutional provision was a compromise
between those delegates of the Convention who thought that the Constitution
should explicitly provide for inferior federal courts and those delegates who
feared lest such courts, if established, would exercise extensive jurisdiction
and rob the state courts of their jurisdiction. If therefore
there could be no appeal from state courts, and if no inferior federal courts
were established by Congress, the Supreme Court would have no appellate
jurisdiction of any kind, although the Constitution plainly contemplates that
it should be chiefly an appellate tribunal. It seems therefore an unavoidable
conclusion that the framers of the Constitution took for granted that there
could and should be an appeal from a state court to the federal Court on
Not until five years after Martin v. Hunter's Lessee did Marshall
have his opportunity to reply from the bench to the Virginia
pamphleteers. This he did in the case of Cohens v.
Virginia. The facts of the case are simple. Cohens was fined by
a Virginia court for selling lottery tickets in Virginia. He maintained that he
was deprived of his legal and constitutional rights inasmuch as the lottery was
authorized by Congress; he carried his case on appeal to the Supreme Court. The
center of the dispute was the nature of the union and the authority of the
federal judiciary to determine whether a state court had rendered a decision
contrary to the "supreme law of the land". The lawyers for Virginia denied the
constitutional authority of the Court to review the finding of the state court.
Marshall defended the jurisdiction of the Court. His opinion was able,
searching, and eloquent. The situation was critical; the great Chief Justice,
who was also a great Virginian, appreciated the gravity of the issue. The
counsel for his native state were attempting to carry by assault the central
fortress of nationalism.
He elaborately and eloquently discussed the nature of the union. "That
the United States form," he said in a forceful passage, "for many, and for most
important purposes, a single nation, has not yet been denied. In war, we are
one people. In making peace, we are one people.... In many other respects, the
American people are one; and the government which is alone capable of
controlling and managing their interests in all these respects, is the
government of the Union.... The constitution and laws of a state, so far as
they are repugnant to the constitution and laws of the United States, are
absolutely void. These states are constituent parts of the United States. They
are members of one great empire — for some purposes sovereign, for some
purposes subordinate." 
It was necessary in the course of the discussion to pass upon the
eleventh amendment which declares that "The judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of another State, or by
citizens or subjects of any foreign State." Marshall asserted that this suit
was not commenced or prosecuted against a state: "It is clearly in its
commencement the suit of a state against an individual, which suit is
transferred to this court, not for the purpose of asserting any claim against
the state, but for the purpose of asserting a constitutional defense against a
claim made by a state." 
The opinion we have been discussing was given when the Virginia counsel
moved to dismiss the writ of error bringing the suit before the federal Court
on the ground that the federal Court was without jurisdiction. That motion, as
we have seen, was overruled; but when the case came up for decision on the
merits, the Court decided that the law of Congress should not be so construed
as to give the right to sell lottery tickets outside of the corporate limits of
Washington. So Cohens had to pay his fine after all. But his effort to maintain
what he believed to be his constitutional rights had brought forth a momentous
and learned disquisition on the government of the union and the nature of the
Two other cases deserve more than passing mention. The first leading
decision on the subject of interstate commerce — Gibbons v. Ogden
— disclosed Marshall's wisdom in his determination not to fasten
limitations on national authority by the application of minute definitions. In
1824 there came before the Court the question of the validity of a New York act
granting to certain persons the exclusive right to navigate New York waters in
steamboats. The immediate issue of concern was whether or not a
state had in its power the right to lay down exclusive regulations concerning
instruments of transportation; but the main issue was in fact greater. Could a
single state, asserting its complete authority over transportation on waters
within its limits, obstruct the natural routes of communication between that
state and every other and even shut its harbors to foreign vessels? If so, the
United States might theoretically continue to exist as a political whole; but
the development of industrial integrity would be almost impossible.
State sovereignty or any extreme doctrine of states' rights, carried to
the point of preserving economic isolation for each and every state, could have
but one result — the disintegration of the union. Almost at
the beginning of his opinion in the case Marshall swept aside all narrow
definitions of commerce: "Commerce, undoubtedly, is traffic,.but it is
something more; it is intercourse."  While the completely
internal commerce of a state is subject to state regulation, interstate and
foreign commerce is within the control of Congress. The power to regulate it
does not stop with the boundaries of states. This power "is vested in Congress
as absolutely as it would be in a single government, having in its constitution
the same restrictions on the exercise of the power as are found in the
constitution of the United States."
No subject in constitutional law has presented more difficulties than
the regulation of interstate commerce; and a difficult problem has been that of
determining how far a state can go in commercial regulation in the absence of
congressional enactment. Many decisions have been rendered since Marshall's
time, and it would be too much to say that Gibbons v. Ogden in 1824 by
any means fully announced the law as it was to be. What it did do was to give
the commerce clause a broad construction, which assured general and national
control when later conditions made such control and regulation desirable.
Three years after the decision in the steamboat case, Marshall delivered
another important decision on the law of foreign commerce, again marking out a
restriction on state authority. He denied the right of a state
to require importers of foreign goods to pay a license fee. This is the
"original package" case, and its interpretation and application in later years
raised perplexing questions. The critical question was at what time do the
articles imported become subject to the taxing power of the state? "It is
sufficient", said the Court, "for the present to say, generally, that when the
importer has so acted upon the thing imported that it has become incorporated
and mixed up with the mass of property in the country, it has, perhaps, lost
its distinctive character as an import, and has become subject to the taxing
power of the state; but while remaining the property of the importer, in his
warehouse, in the original form or package ... , a tax upon it is too plainly a
duty on imports to escape the prohibition in the con- stitution."
 This principle was at a much later time declared to be
applicable to interstate commerce as well as foreign.
The general nature and effect of Marshall's constitutional decisions are
apparent. They asserted and defended, by broad principles of construction, the
competence of the national government within the field of sovereignty assigned
to it. They laid down decisively the fact of limitations on the states. They
conclusively upheld the power of the Supreme Court to review state decisions,
and in this way protected the Constitution from infringement. That Marshall was
intent upon defending the interests of property from rude interference by state
legislatures is less easily demonstrated, but that he was determined to support
what he deemed to be constitutional restrictions is plain. His main doctrines
were doubtless those of the Federalists, which had been so eloquently presented
by Hamilton, but that his chief decisions ran counter to the hopes and purposes
of the framers of the Constitution, who sought to build a lasting and effective
national government, cannot be successfully maintained.
 It is difficult to measure exactly the influence of able
lawyers like Webster and Pinkney on constitutional development, but it must
have been very great. If we wish a written rule of law binding on government,
that end is attained by the presentation to courts of actual and concrete
controversies; and in reaching decisions, the courts are aided by the arguments
of lawyers who have laboriously examined the law and legal precedent. Marshall
did not need to traverse unknown territory with no direction from guides who
knew the terrain at least as thoroughly as he did. "The arguments in M'Culloch
vs. Maryland occupied nine days." A. J. Beveridge, The Life of John
Marshall, IV, p. 288. Marshall is said to have declared Pinkney to be the
greatest man he had ever seen in a court of justice. Pinkney was connected with
the Dartmouth College case and for a time with Gibbons v. Ogden; he made
great and impressive arguments in McCulloch v. Maryland and in Cohens
v. Virginia. His arguments in the Maryland case and in Cohens. v.
Virginia were masterly expositions of the authority of Congress and the Court.
In the latter case he pointed out the permanent importance of the right of the
courts of the union to entertain appeals from state tribunals on questions
involving constitutional construction. If this appellate power were taken away,
he declared, "... every other branch of federal authority might as well be
surrendered. To part with this, leaves the Union a mere league or confederacy."
Webster was counsel in the Dartmouth College case, McCulloch v.
Maryland, Cohens v. Virginia, Osborn v. the Bank, and Gibbons
v. Ogden. Arguments for the rights of the states were made by attorneys
of brilliance and ability. Ibid., passim.
 6 Cranch 87.
 U. B. Phillips, Georgia and State Rights, Am.
Hist. Asso. Report for 1901, II, pp. 31-32.
 7 Cranch 164 (1812). See also Terrett v. Taylor, 9
Cranch 43 (1815). Notice the remark of the Court in Stone v.
Mississippi, 101 U. S. 814, 820 (1880): "While taxation is in general necessary
for the support of government, it is not part of the government itself.... No
government dependent on taxation for support can bargain away its whole power
 Trustees of Dartmouth College v. Woodward, 4
Wheaton 518 (1819).
 1 New Hampshire Reports 111, 117 (1817).
 "This is one of Marshall's most celebrated decisions. It
is often cited as the one which established the inviolability of contracts
under the Constitution. But the actual controversy, as the Chief-Justice
remarked, turned, not so much upon the true construction of the Constitution,
in the abstract, as upon its application to the case, and upon the true
construction of the charter of Dartmouth College; whether that was a grant of
political power which the State could resume or modify at pleasure, or a
contract for the security and disposition of property bestowed in trust...."
Henry Hitchcock, "Constitutional Development in the United States as Influenced
by Chief-Justice Marshall," Constitutional History of the United States as
Seen in the Development of American Law, p. 104.
 The amendment or revocation, however, is not held to be
totally without limitation.
 Charles River Bridge v. Warren Bridge, 11 Peters
 Munn v. Illinois, 94 U. S. 113 (1877).
 In Boston Beer Co. v. Massachusetts, 97 U. S. 25,
32 (1878) the Court held that, though a corporation was chartered for the
manufacture of malt liquors and "although this right or capacity was thus
granted in the most unqualified form, it cannot be construed as conferring any
greater or more sacred right than any citizen had to manufacture malt liquor;
nor as exempting the corporation from any control therein to which a citizen
would be subject, if the interests of the community should require it.... All
rights are held subject to the police power of the State." "No Legislature can
bargain away the public health or the public morals." Stone v.
Mississippi, 101 U. S. 814, 819 (1880). "The rule of construction in this class
of cases is that it shall be most strongly against the corporation."
Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 666 (1878). It
should be noticed that Marshall in the Dartmouth College case said that "the
framers of the constitution did not intend to restrain the states in the
regulation of their civil institutions, adopted for internal government...." 4
Wheaton 518, 629.
 4 Wheaton 316.
 9 Wheaton 738.
 Such a statement as this could not satisfy the
proponents of state sovereignty when that doctrine found full expression. John
Taylor was beginning to make clear that the state government was not the state,
and that the conventions in adopting the Constitution were decidedly the agents
of the states acting in their sovereign capacity; if the people, though meeting
within the geographical limits of their respective states, were not acting as
part of the people of the United States as a whole — as a single political
entity — , then the Constitution emanated from thirteen separate
sovereignties. Elsewhere in the opinion Marshall says: "Much more might the
legitimacy of the general government be doubted, had it been created by the
states." 4 Wheaton 316, 404. His opponents would naturally retort, "But that is
just the way it was established — by the states in their highest sovereign
capacity." The Chief Justice announced the orthodox doctrine of divided
sovereignty: "The creation of a corporation, it is said, appertains to
sovereignty.... But to what portion of sovereignty does it appertain? ... In
America, the powers of sovereignty are divided between the government of the
Union, and those of the States. They are each sovereign, with respect to the
objects committed to it...." Ibid., 410.
 Ibid., 429, 437. See also Dobbins v.
Commissioners, 16 Peters 435 (1842), holding that the salaries of federal
office-holders could not be taxed by a state. It was later held that a like
constitutional principle prevented the federal government from taxing agencies
of state governments. Collector v. Day, 11 Wallace 113 (1871). Thus
salaries of state officers are not taxable by the United States. The dissenting
opinion of Justice Bradley is of interest: "I cannot", he said, "but regard it
as founded on a fallacy, and that it will lead to mischievous consequences."
 Ames, State Documents, no. 3, pp. 1-3.
 8 Wheaton 1 (1823). Justices Story and Washington
delivered the opinion of the Court.
 Ames, State Documents, no. 3, p. 18. The Kentucky
legislature passed resolutions (December 29, 1823) against the "erroneous,
injurious and degrading doctrines of the opinion of the Supreme Court of the
United States" and resolved that it ought to request Congress so to organize
the Court that no constitutional question involving the validity of a state law
should be decided unless two-thirds of the members of the Court should concur
in the decision. Ibid., pp. 19-20. Notice the refusal of the Kentucky
court to be bound by an opinion of the Supreme Court of the United States when
the opinion was not concurred in by a majority of the Court. Bodley v.
Gaither, 3 T. B. Monroe's Reports 57, 58-59 (1825). See also the discussion in
Hawkins v. Barney's Lessee, 5 Peters 457 (1831), and the request of the
Kentucky house for advice in resistance to "the decisions and mandates" of the
United States Supreme Court (1825). Ames, State Documents, no. 3, p. 23.
Before this date, Senator Johnson of Kentucky, later Vice-President of the
United States, had proposed (1821) in the Senate an amendment to the
Constitution which would make the Senate the final court of appeal in all cases
to which a state was a party or should desire to be a party in consequence of
having its constitution or law questioned. He declared that the federal
Constitution did not give the federal judiciary authority to declare a state
act void. H. V. Ames, The Proposed Amendments to the Constitution of the
United States, Am. Hist. Asso. Report for 1896, II, pp. 161-163.
Ames also calls our attention to a proposal by Senator Davis of Kentucky, in
1867, which would provide for a tribunal composed of one member from each state
to decide all questions of constitutional power that should arise in the
government of the United States and all conflicts of jurisdiction between the
federal government and the states. He made a similar proposal in 1871.
Ibid., p. 163.
 Ames, State Documents, no. 3, p. 5 ff. The reader
should notice especially the resentment during these years against the Supreme
Court. The feeling was strong, vehement. What right had the Court to thrust in
its hand and decide upon state competence?
 Massachusetts, in resolutions, emphatically combated
Ohio's position. Ibid., no. 3, pp. 13-15. Virginia was at the same time
much wrought up over the power of the Court. See Ibid., no. 3, pp.
 Osborn v. Bank of United States, 9 Wheaton
 Ibid., 847-849.
 "Consequently, the nth amendment, which restrains the
jurisdiction granted by the constitution over suits against states, is, of
necessity, limited to those suits in which a state is a party on the record."
 "If, therefore, an individual, acting under the assumed
authority of a State, as one of its officers, and under color of its laws,
comes into conflict with the superior authority of a valid law of the United
States, he is stripped of his representative character, and subjected in his
person to the consequences of his individual conduct." In re Ayers, 123 U. S.
443, 507 (1887). See also United States v. Lee, 106 U. S. 196 (1882);
Poindexter v. Greenhow, 114 U. S. 270, 200-291 (1885). I have omitted
from the text above any consideration of the extent to which an officer
executing a writ of a court may be exempt from personal liability.
 "It is, therefore, not conclusive of the principal
question in this case, that the State of Virginia is not named as a party
defendant. Whether it is the actual party ... must be determined by a
consideration of the nature of the case as presented on the whole record." In
re Ayers, 123 U. S. 443 (1887). See also Cunningham v. Macon and
Brunswick R.R. Co., 109 U. S. 446 (1883); Hagood v. Southern, 117 U. S.
52 (1886); State of North Carolina v. Temple, 134 U. S. 22 (1890).
 Martin v. Hunter's Lessee, 1 Wheaton 304.
 Justice Johnson pointed to the "momentous importance" of
the problem. The states must be preserved; but "the general government must
cease to exist whenever it loses the power of protecting itself in the exercise
of its constitutional powers." Ibid., 304, 363.
 It is impossible to emphasize too strongly the
importance of this question. The reader will remember that in the Federal
Convention of 1787 the proposal to use force against a delinquent state was
abandoned and the maintenance of the union was intrusted in large measure to
 Marshall referred to this in his opinion in Cohens
v. Virginia, 6 Wheaton 264, 420 (1821).
 See Farrand, Records, I, pp. 124-125. Luther
Martin, "Genuine Information," Ibid., III, pp. 206-207. Rutledge
declared in the Convention "that the State Tribunals might and ought to be left
in all cases to decide in the first instance the right of appeal to the supreme
national tribunal being sufficient to secure the national rights and uniformity
of Judgments". Wilson and Madison argued that the national legislature should
be empowered to institute federal tribunals, and observed that "there was a
distinction between establishing such tribunals absolutely, and giving a
discretion to the Legislature to establish or not establish them."
Ibid., I, pp. 124-125.
 For an account of the relations of Marshall to the
Virginia group, see W. E. Dodd, "Chief Justice Marshall and Virginia,
1813-1821," Am. Hist. Rev., XII, pp. 776-787.
 6 Wheaton 264 (1821). Marshall did not sit in the case
of Martin v. Hunter's Lessee because at an earlier day he had been
involved in the general subject under dispute, the ownership of certain
confiscated lands in Virginia.
 6 Wheaton 264, 413-414.
 6 Wheaton 264, 409.
 This is an excellent illustration of the way in which
the constitutional system itself is preserved by the insistence of the
individual citizen upon his own personal rights.
 Gibbons v. Ogden, 9 Wheaton I.
 "The power over commerce, including navigation, was one
of the primary objects for which the people of America adopted their
government...." Ibid., 190. See the Constitution, Art. 1, sec. 8, par.
3; sec. 9, par. 6; sec. 10, par. 2.
 The powers involved in the right to regulate commerce,
said the Supreme Court at a later day, "keep pace with the progress of the
country, and adapt themselves to the new developments of time and
circumstances. They extend from the horse with its rider to the stage-coach,
from the sailing-vessel to the steamboat, from the coach and the steamboat to
the railroad, and from the railroad to the telegraph, as these new agencies are
successively brought into use to meet the demands of increasing population and
wealth." Pensacola v. Western Union Telegraph Co., 96 U. S. 1, 9 (1878).
In this case the Court declared that Congress could regulate the telegraph as a
means of interstate communication. In a comparatively recent case it was
decided that correspondence schools were engaged in interstate commerce.
International Textbook Co. v. Pigg, 217 U. S. 91 (1910). A similar
decision was made concerning electric current. See Public Utilities Commission
v. Attleboro Steam and Electric Co., 273 U. S. 83 (1927).
 Brown v. Maryland, 12 Wheaton 419 (1827).
 Ibid., 441-442.
 Leisy v. Hardin, 135 U. S. 100 (1890).