John Marshall

by Harlow Giles Unger

  James Madison, one of Virginia’s delegates to the Confederation Congress, agreed. “Nothing can exceed the confusion which reigns . . . indeed runs through all of our public affairs and must continue as long as the present mode of legislating continues.” He wrote to his friend and mentor Thomas Jefferson, predicting that the Virginia legislature’s conduct would “soon bring our laws and our legislature into contempt among all orders of citizens.”2

  No more able than the state legislatures to cope with the spreading chaos, the Confederation Congress urged its presiding officer, Revolutionary War hero Henry “Light-Horse Harry” Lee, to appeal to his friend George Washington, who remained the most prominent living symbol of national unity.

  “A majority of the people of Massachusetts is in opposition to the government,” Lee explained to his former commander-in-chief, “and their leaders avow the subversion of it to be their object together with the abolition of debts, the division of property and reunion with Great Britain.”

  In all the eastern states, the same temper prevails. . . . The malcontents are in close connection with Vermont, and that district . . . is in negotiation with the Governor of Canada. My dear General, we are all in dire apprehension that a beginning of anarchy . . . has approached and have no means to stop the dreadful work.3

  Lee proposed calling a convention of state leaders to permit Congress to act “with more energy, effect, and vigor.”4 To everyone’s amazement, even Patrick Henry, Virginia’s patron saint of state sovereignty, agreed. Henry predicted that “ruin is inevitable unless something is done to give Congress a compulsory process on delinquent states.”5

  Learning of Henry’s declaration, Washington grew optimistic: “Notwithstanding the jealous and contracted temper which seems to prevail in some of the states, I cannot but hope and believe that the good sense of the people will ultimately get the better of their prejudices.”6

  As popular dissatisfaction with government swelled, a surge in land speculation added to national disarray by provoking territorial disputes between states, which the Revolution had left independent and sovereign. Although all had joined the loose-knit Confederation of American States, the Articles of Confederation created no central authority and left its congress nothing more than a forum in which to exchange views. It had no powers to tax, raise an army, or assume any other responsibilities of a domestic government.

  Like Europe’s nations, American states were ready to attack each other at the slightest provocation. New York and New Hampshire were edging toward war over conflicting claims to lands in Vermont; both Virginia and Pennsylvania claimed sovereignty over lands in present-day western Pennsylvania and Kentucky; Massachusetts claimed all of western New York; and Connecticut prepared to send its militia into Pennsylvania after Pennsylvania militiamen fired on Connecticut farmers who had settled on vacant lands in the Wyoming Valley of northeastern Pennsylvania.

  The chaos that engulfed the United States after the Revolution ended in 1783 is evident in the cross-hatched areas depicting conflicting territorial claims of the thirteen sovereign states. Adding to the chaos were British and Spanish troops encamped outside the dark boundary line, ready to attack. The map shows Virginia as the nation’s largest, wealthiest, and most heavily populated state—and enough political power to name four of the first five Presidents.

  In addition to territorial disputes, economic disputes embroiled six states. Maryland and Virginia each claimed its border lay across the Potomac River on the opposite shoreline, thus giving each the right to collect fees and duties from ships traveling the waterway. Farther north, states with deep-water ports such as Philadelphia, New York, and Boston were bleeding the economies of neighboring states with heavy duties on imports that passed through their harbors on their way to inland destinations. “New Jersey, placed between Philadelphia and New York, is like a cask tapped at both ends,” James Madison complained, “and North Carolina, between Virginia and South Carolina seems a patient bleeding at both arms.”7

  With Congress impotent and New York too distant, delegates from far-off southern states appeared only intermittently at the Confederation Congress after it fled Philadelphia. A few states even stopped appointing delegates. When Congress did meet, its members often had little in common; they barely understood each other’s words, let alone each other’s thinking—especially on the issue of slavery. Without money or means to raise it, Congress stopped repaying principal and interest on foreign debts, disbanded American naval operations, and reduced the army to a mere eighty privates.8

  Secretary at War Henry Knox, who had been a major general and chief of the artillery in the Revolutionary War, warned Washington that “different states have . . . views that sooner or later must involve the country in all the horrors of civil war. . . . We are entirely destitute of those traits which should stamp us one nation, and the Constitution of Congress [Articles of Confederation] does not promise any alteration.”9

  John Marshall agreed that “everything has been mixed . . . we have been united in some respects, separate in others. We have acted as one people for some purposes, as distinct societies for others, separate in others.”10

  In fact, George Washington had already responded to the crisis, but with little fanfare. Hoping to use common commercial interests to unite a few states, he invited representatives of Maryland and Virginia to his plantation at Mount Vernon to end their economic war by establishing a joint shipping channel in Chesapeake Bay and the Potomac River. Washington’s presence encouraged his guests to outdo one another with concessions, adopting uniform commercial regulations and even a uniform currency. In effect, they established an economic union.

  The potential economic benefits of their union became so evident that Pennsylvania and Delaware joined, and before long, Virginia leaders urged all states to participate in a conference to unify interstate and foreign commerce regulations, eliminate interstate trade restrictions, and facilitate establishment of trade agreements with foreign nations.

  By early 1787, after twelve of the thirteen states agreed to participate in what they assumed was an economic conference, Congress issued an official, if vaguely worded, call to the states to convene “for the sole and express purpose of revising the Articles of Confederation . . . [and] render the federal constitution adequate to the exigencies of government and the preservation of the union.”11

  Only Rhode Island refused—three times. Rhode Island’s Atlantic ports saved shippers in the South and the West Indies days of sailing around Cape Cod to reach New England via Boston Harbor. Rhode Island’s government was not about to share a penny of profits reaped from those who took advantage of the state’s coastal gateway.

  By early 1787 Boston’s merchant-bankers had organized a private 3,000-man army under Revolutionary War General Benjamin Lincoln to march to western Massachusetts to confront the Shaysite force, which had swelled to 1,500 men. The troops from Boston reached Springfield in late January and repelled the Shaysites, leaving 4 farmers dead and 20 wounded. A few days later, on February 4, Lincoln’s army crushed the rebellion with a surprise attack that left 30 more farmers wounded, 150 taken prisoner, and the rest in flight northward across the border to independent Vermont. Marshall was elated by “the prospect of reestablishing order and good government in Massachusetts.

  “I think their government will now stand more firmly,” he told friends, “provided some examples are made to impress on the minds of the people a conviction that punishment will surely follow an attempt to subvert the laws and government of the commonwealth.”12

  In defeat, however, the Shaysites scored a resounding victory for Massachusetts farmers, who flocked to the polls as never before and turned Governor James Bowdoin and three-quarters of the state legislature out of office. Governor-elect John Hancock pledged amnesty for Shays and his followers, and the new, pro-farmer legislature acceded to most Shaysite demands. It exempted clothing, household possessions, and tools of trade from seizure in debt proceedings and allowed impr
isoned debtors to return to work by taking a pauper’s oath that they had no income. In a symbolic gesture, Governor Hancock cut his own salary and convinced the legislature to declare a tax holiday for a year and reduce property taxes thereafter.

  Just as the shots fired at Lexington had echoed in London’s Parliament, the shots fired at Springfield reverberated in Congress and many state capitols, even jolting some state-rights advocates into realizing the only way to forestall the spread of anarchy was by strengthening the central government.

  “It is indispensable,” Washington had warned Congress and the American people when he resigned his commission after the war, “that there should be lodged somewhere a Supreme Power to regulate and govern the general concerns of the Confederated Republic, without which the Union cannot be of long duration.”

  There must be a faithful and pointed compliance on the part of every state with the demands of Congress . . . that whatever measures have a tendency to dissolve the Union . . . ought to be considered as hostile to the liberty and independency of America and the authors treated accordingly.13

  Washington now pressed state leaders to act together to save the nation in peace as they had in war. “There are errors in our national government,” he railed at New York’s John Jay, who served as secretary for foreign affairs in the Confederation Congress. “Something must be done!”14

  On May 17, 1787, the first delegates appeared in Philadelphia to revise the Articles of Confederation—the tissue-thin document that had served as a constitution since the end of the revolution. Although more than seventy delegates had won election, only fifty-five showed up, and they elected George Washington President of the convention. Despite Washington’s pleas to Patrick Henry that he attend, the Virginia patriot so opposed creation of a strong central government that he refused to go to the convention.

  Besides Washington, the Virginia House of Delegates elected Governor Edmund Randolph, John Blair, James Madison, George Wythe, and George Mason, whose plantation and manor, Gunston Hall, lay near Washington’s Mount Vernon. Although both Marshall and Monroe had hoped to serve, the House of Delegates considered them too young and without seniority. In contrast, New York saw fit to name the young Alexander Hamilton as one of its three delegates.

  For the first time in their lives the three wartime comrades—all members of that elite band of heroic Men of Monmouth—now differed on how to govern their new nation. Marshall and Hamilton, still under the influence of their old commander-in-chief, embraced Washington’s concept of a strong federal government. Monroe had fallen under the spell of his law instructor Thomas Jefferson, who stood with Patrick Henry in espousing state sovereignty in domestic affairs.

  Over the next four months—124 days in all—delegates to the Constitutional Convention staged a coup d’état. Instead of revising the Articles of Confederation as instructed by Congress, they discarded it in favor of a new constitution that created a new and powerful federal government. Of the forty-two delegates still in attendance when the convention ended, three refused to sign, leaving the 4,500-word finished document with only thirty-nine signatures—scarcely representative of “We the People” who, the preamble insists, created the seven articles of the document.

  The first three articles defined the shape and powers of the three branches of government—the national legislature, the executive, and federal judiciary—as well as the methods of selection and qualifications for service (and removal) in each. Article I gave Congress the most powers, inter alia, powers to tax the people, levy duties, borrow money, regulate foreign and interstate commerce, maintain a standing army and navy, declare war, and “make all laws . . . necessary and proper” for exercising its powers. It placed no limit on the number of terms legislators could serve if reelected.

  Article II gave limited powers to a President, who was to be commander-in-chief of the military and serve indefinitely if reelected. The President would nominate ambassadors, federal judges, and heads of executive departments and negotiate treaties. The states lost all rights to deal with foreign nations.

  Article III created a federal judiciary with an indefinite number of lower courts, to be determined by Congress, and one Supreme Court with powers to hear appeals from lower courts.

  Article IV forced the states to recognize each other’s laws and give all citizens rights of citizenship in every state. The same article also provided for admission of new states and guaranteed “a republican form of government” in every state.

  Article V provided for amending the Constitution, and Article VI ranked laws by category, with the Constitution and US laws and treaties ranking highest as “the supreme law of the land.” State laws ranked next, and local laws ranked lowest, with little or no consequence for the rest of the nation.

  For the Constitution to take effect and permit establishment of a new federal government, Article VII required approval by ratification conventions in nine states, and for it to take effect in any given state, it would have to win approval by a popularly elected convention in that state.

  The Constitution was admittedly a compromise between different interest groups and geographic regions of the new nation, each with conflicting interests: farmers vs. bankers, big states vs. little states, North vs. South, East vs. West, slave holders vs. abolitionists, and so forth.

  Each wanted rights or powers that deprived others of some rights and powers. States with large populations sought proportionate representation, outraging the states with small populations. Small states argued that three states with the largest populations—Virginia, Pennsylvania, and Massachusetts—would outvote all other states combined and control the nation.

  Small states demanded one vote per state, as in the Confederation Congress, but the heavily populated states complained that eight states with a total population smaller than Virginia’s alone would be able to dictate to the majority of the American people.

  Delegates compromised by creating a bicameral legislature, with a lower house based on proportionate representation and an upper house in which each state would cast two votes. Instead of unfettered majority rule, as in a democracy, the compromise created a republican government that protected the rights of the minority to block legislation it deemed oppressive. Nonetheless, the Constitution vested more powers in the lower house—the House of Representatives—than in any other branch of government, including the upper house, or Senate. As the only branch of government elected directly by “We the People,”* the House had exclusive powers to originate government tax laws and spending measures, to impeach (indict) federal officials (including the President) for “high crimes and misdemeanors,” and to elect a President of the United States if the Electoral College failed to do so. The House would, in fact, elect two of the first six Presidents.

  In the end every state won a little and lost a little. No state won everything, and, except for white adult male property owners, the vast majority of “We the People” obtained few if any benefits. In most states women and children remained chattel, most blacks remained slaves, and most poor whites remained indentured or without properties of their own and, like women and blacks, unable to vote or hold public office. To keep the South in the Union, the North agreed to prevent the new federal government from interfering with the slave trade for twenty years.

  “This Constitution has been formed without the knowledge or idea of the people,” Virginia’s George Mason complained as the convention neared its end. “It is improper to say to the people, ‘Take this or nothing.’” Mason went on to cite Patrick Henry’s repeated demands for another, second convention “to know more of the sense of the people and . . . provide a system more consonant to it. I would sooner chop off my right hand than put it to the Constitution as it now stands,” Mason raged.15

  After seeing a copy of the Constitution, Henry echoed Mason’s sentiments.

  “What right had they to say, We, the People?” Henry demanded to know. “My political curiosity . . . leads me to ask who authorized them to s
peak the language of We, the People. . . . The people gave them no power to use their name.”16

  The Constitution was curious in many ways, creating an executive, or President, with few specified powers: it declared the President commander-in-chief of the armed forces but denied him the power to raise troops or send them into action. Only Congress could raise an army or declare war, thus leaving a peacetime President as commander-in-chief of no one and powers to do nothing. The Constitution obligated the President to “take care that the laws be faithfully executed,” but gave him no law enforcement arm or powers to arrest or punish miscreants.

  Even more curious, the Constitution created a nonelective federal judiciary whose members would serve for life and a Supreme Court with few enumerated powers. An appellate court with almost no original jurisdiction, it would try cases without juries, thus denying respondents a right guaranteed in the English-speaking world since 1215 when King John signed the Magna Carta at Runnymede, England.

  In addition to denying citizens the right to trial by jury in the highest court, the Constitution failed to include a bill of rights to protect civil liberties such as freedom of speech, freedom of religious choice, freedom of the press, rights of assembly, and rights to redress of grievances.

  “The Constitution is not free from imperfections,” Washington admitted, “but there are as few radical defects in it as could well be expected considering . . . the diversity of interests that are to be attended to. As a constitutional door is opened for future amendments and alterations, I think it would be wise in the people to accept what is offered.”17

  New York’s Alexander Hamilton agreed, arguing against any immediate amendments to the Constitution as written. By enumerating government powers, he argued, the Constitution automatically left all else outside the government’s jurisdiction. “Why declare that things should not be done which there is no power to do?” the hero of Monmouth and Yorktown asked. “Why should it be said that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed?”18