Dartmouth College v. Woodward followed the seizure in 1816 of Dartmouth College by New Hampshire’s state legislature, which took control of the private school and converted it into a public, state-run institution. After a state court upheld the takeover, Daniel Webster, the eloquent New Hampshire attorney and Dartmouth alumnus, appealed to John Marshall’s Supreme Court with one of the most moving summations in Court history:
“This, Sir,” Webster pleaded to the Chief Justice, “is the case not merely of that humble institution; it is the case of every college in our Land!”
It is the case of . . . all those great charities founded by the piety of our ancestors to alleviate human misery. . . . It is, in some sense, the case of every man among us who has property of which he may be stripped. For the question is simply this: “Shall our State Legislatures be allowed to take that which is not their own, to turn it from its original use, and apply it to such ends and purposes as they in their discretion shall see fit!”
“Sir,” the future senator all but sobbed, “you may destroy this little institution. It is weak. It is, Sir, as I have said, a small college . . . ”
Webster choked on his words.
“ . . . and yet, there are those who love it.”3
Far from destroying Webster’s “little institution,” Marshall scolded state authorities, calling the New Hampshire law and state court ruling that turned Dartmouth into a state institution “repugnant to the Constitution of the United States.”
In a decision to ensure constitutional protection of individual and institutional property rights in America, Marshall declared the original state-issued charter that created the college a contract protected by Section 10, Article I of the Constitution, which prohibits states from passing “any law impairing the obligation of contracts.”* He declared the constitutional prohibition applicable to all contracts—including state charters that created charitable and benevolent corporations as well as private business corporations.
“The judgment of the state court,” he stated, “must therefore be reversed.”4
ONLY TWO WEEKS AFTER DARTMOUTH THE MARSHALL COURT HANDED down another monumental decision in McCulloch v. Maryland, repudiating all state sovereignty over federal activities and proclaiming the federal government the ultimate sovereign in the United States. The decision would eventually provoke not only civil war, but a host of bitter confrontations between state and federal authorities in the intervening decades.
McCulloch v. Maryland began in 1818 when Maryland imposed a tax on all banks in the state, including the federally chartered Bank of the United States. James McCulloch, the manager of the Baltimore branch of the federal bank, refused to pay, arguing that the state had no right to tax the federal government. A county court disagreed and convicted him of violating state tax law. After the state court of appeals upheld his conviction, McCulloch appealed to the US Supreme Court, where batteries of famous lawyers fired their legal arrows at each other. Among them were US Attorney General William Wirt and the demosthenic Daniel Webster, fresh off his triumph in the Dartmouth case.
“A small college . . . yet there are those who love it.” When the state of New Hampshire passed a law converting Dartmouth College (seen here in 1793) from a private to a public school, John Marshall’s Supreme Court voided the law, calling it “repugnant to the Constitution of the United States.” (ENGRAVING BY J. DUNHAM AND S. HILL, IN MASSACHUSETTS MAGAZINE, FEBRUARY, 1793)
Maryland lawyers reiterated Thomas Jefferson’s arguments in the Kentucky Resolution. They called the Bank of the United States illegal, saying the Constitution did not give the federal government powers to charter a bank—which it did not. They argued, as Jefferson had, that the Constitution was “a compact between the states, and all the powers which are not expressly relinquished to it are reserved to the states. . . . The powers of the general government . . . are delegated by the states, who [sic] alone are truly sovereign.”5
After Webster and Wirt finished their arguments for the federal government, Marshall savaged Maryland’s attorneys in a unanimous decision that assailed their claims of broad state sovereignty. In perhaps the most famous—and most important—words of any Chief Justice in American history, Marshall conceded that Maryland’s attorneys had been correct in only one of their assertions—that the framers had indeed been elected by state legislatures and not the people of the United States.
But he went on to give them a stern lesson in history, pointing out that the Constitution drafted by the framers was only a proposal. It did not become the law of the land until the people in each state elected conventions to vote it up or down.
“The government of the Union,” said Marshall, “is emphatically and truly a government of the people. Its powers are granted by them and are to be exercised directly on them and for their benefit.”
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. . . . After the most deliberate consideration, it is the unanimous and decided opinion of this Court that the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution and is part of the supreme law of the land.6
In effect Marshall reaffirmed Alexander Hamilton’s contention as Treasury secretary in George Washington’s first administration that the Constitution gave the federal government “implied powers” as well as specific ones. Hamilton argued that by granting Congress power “to make all laws which shall be necessary and proper for carrying into execution” its other obligations (Section 8, Article 1), the framers had extended federal authority beyond the letter of the Constitution.
Marshall agreed.
“If the measure . . . is not forbidden by any particular provision of the Constitution,” Marshall declared, “it may safely be deemed to come within the compass of the national authority.”7 In effect Marshall stabilized the foundation and structure of the entire federal government, extending constitutional powers beyond the literal meanings of its words to include implied meanings.
The decision remains the center of acrimonious debate to this day, and some authors of both the Constitution and Bill of Rights (the first ten amendments to the original document) sharply disagreed with Marshall.
“The powers of the federal government are enumerated,” James Madison had stated unequivocally at the Virginia ratification convention. “It has . . . defined and limited objects, beyond which it cannot extend its jurisdiction.”8 Indeed, the Tenth Amendment of the Bill of Rights, sponsored in the First Congress by Madison at the insistence of Patrick Henry, declared “powers not delegated to the United States by the Constitution . . . are reserved to the states.”
The McCulloch decision, therefore, represented a sea change that muddied constitutional waters then and since and has often encouraged each of the three branches of the federal government to step well beyond constitutional bounds.
In 1846 President James K. Polk ordered troops into disputed territory to provoke the Mexican War—without a constitutionally required declaration of war. Abraham Lincoln—then an Illinois congressman—argued vigorously that the President had assumed powers of an absolute monarch and usurped war-making powers from Congress. A few years later as President, however, Lincoln himself mirrored Polk’s constitutional violations by unilaterally expanding the military, proclaiming martial law, suspending habeas corpus, and, finally, issuing a proclamation emancipating slaves—all without congressional approval.
Nothing in the Constitution gives a President power to issue proclamations or executive orders with the force of law. Only Congress can legislate, yet presidents have issued more than 13,500 proclamations and executive orders since the founding of the Republic, while Congress has enacted only about 20,000 laws.
But the executive has not been alone in usurping powers not granted by the Constitution. Since the First Federal Congr
ess met in 1789 the national legislature has enacted nearly 200 laws that the Supreme Court has voided as unconstitutional. Of the 20,000 laws enacted by Congress since the First Congress met in 1789, the President has vetoed more than 2,500—sometimes for political reasons, but often because he deemed them unconstitutional. And the Supreme Court itself, as Jefferson suggested, may have crossed the line between interpretation of the Constitution and amending it when it assumed the power of judicial review in Marbury v. Madison and gave Congress implied powers in McCulloch v. Maryland. Certainly the Dred Scott decision declaring African Americans noncitizens fell into that category.
President Lincoln justified his actions as necessary to preserve the country as opposed to the Constitution. Others in both the executive and legislative branches have justified their breaches of the Constitution as necessary interpretations of vague constitutional language or as essential for filling gaps overlooked or unforeseen by the framers at the time they wrote the document. And Marshall’s Supreme Court justified many of its most controversial decisions as essential to the survival of the federal government.
After the Supreme Court declared the federal government’s Bank of the United States constitutional, it went on to impose sharp limits on state sovereignty by denying Maryland (and every other state) the right to tax the federal government or its agencies.
“The power to tax is the power to destroy,” Marshall declared, “which would defeat the operations of a supreme government. . . . If the states may tax one instrument employed by the government . . . they may tax any and every other instrument. They may tax the mail . . . the mint . . . defeat all the ends of government. This was not intended by the American people.”
Marshall insisted that the Constitution did not give any government the right “to pull down what there is an acknowledged right in another government to build up.” His voice then rose as he proclaimed, “We are unanimously of opinion that the law passed by the legislature of Maryland imposing a tax on the Bank of the United States is unconstitutional and void.”9
By voiding a state law and further paring state sovereignty, McCulloch outraged the South. Undeterred, however, Marshall and the Court continued adding to southern outrage in case after case. As Marshall explained to social activist Thomas S. Grimke, “The assumption that our Constitution is essentially a LEAGUE [sic] and not A GOVERNMENT [sic] . . . is the true and substantial dividing line between parties in the United States. As the one opinion or the other prevails, will the Union, I firmly believe, be preserved or dissolved.” He said that a league had “never been of long duration” or strong enough “to preserve a lasting peace between its members.”10
A year after McCulloch the Court extended its protection to every citizen in the land by asserting its power in Cohens v. Virginia to overturn decisions in every court—even a local criminal court.
A Virginia court had imposed a fine of $100 on Philip and Mendes Cohen of Baltimore, Maryland, for violating Virginia’s ban on sales of out-of-state lottery tickets by selling District of Columbia “National Lottery” tickets in Virginia. The Cohens appealed, arguing that the National Lottery was a federal entity like the Bank of the United States and, therefore, protected from state regulation. The state moved to dismiss, arguing that the Supreme Court had no jurisdiction in a local criminal court case.
As with so many disputes it heard, Marshall and the justices faced two distinct questions in one case: whether it had jurisdiction in a local criminal case and whether the state ban against the sale of out-of-state lottery tickets infringed on a legitimate federal activity. Marshall and the other justices found holes in all the arguments and ruled accordingly. They rejected the Cohens’ argument, saying Congress had not created the National Lottery as a national institution like the Bank of the United States. The National Lottery was national in name only; Congress had created it as a municipal agency to raise revenues for the city of Washington. In effect it was a local gambling game with no connection to interstate commerce, and the Court had no authority to force a state to sell out-of-state lottery tickets if it chose not to.
He nonetheless issued a stern rejoinder to Virginia’s lawyers, asserting the Court’s jurisdiction over every court in the nation and proclaiming the rights of all Americans to the same constitutional protections in the lowest criminal courts as in the highest.
“In war we are one people,” he lectured Virginia’s lawyers.
In making peace, we are one people. In all commercial regulations, we are one and the same people. . . . 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 others subordinate.11
Marshall’s words outraged Thomas Jefferson, who called for a constitutional amendment converting judgeships into elective offices, thus making the Supreme Court and federal judiciary directly responsible to the public. Jefferson, however, aging as well as deeply involved in supervising construction of the University of Virginia in Charlottesville, could not leave to reenter the political fray himself. Instead, he again turned to Judge Spencer Roane to lead the attack.
Married to one of Patrick Henry’s daughters, Roane invoked his father-in-law’s legendary name in newspaper essays criticizing the Court’s “monstrous” decisions and increasingly “despotic power. . . . Appointed in one generation, it [the Court] claims to make laws and constitutions for another.”12
Home in Massachusetts by the time Roane’s articles appeared, Associate Justice Joseph Story wrote to Marshall accusing Jefferson of attempting “to prostrate the judicial authority and annihilate all public reverence for its dignity. . . . Can he wish yet to have influence enough to destroy the government of his country?”13
“What you say of Mr. Jefferson,” Marshall replied, “rather grieves than surprises me. It grieves me because his influence is still so great that many will adopt his opinions, however unsound they may be.” Marshall warned Story that Jefferson had long plotted “to convert our government into a mere league of states. . . . The attack upon the judiciary is in fact an attack against the Union.”14
For Mr. Jefferson’s opinion as respects this department it is not difficult to assign the cause. He is among the most ambitious and I suspect among the most unforgiving of men. His great power is over the mass of the people and this power is chiefly acquired by professions of democracy. Every check on the wild impulse of the moment is a check on his own power and he is unfriendly to the source from which it flows. He looks, of course, with ill will at an independent judiciary.15
Marshall refused to acknowledge even a grain of truth to what some constitutional scholars considered legitimate criticisms of the Court and the case law it was writing. Jefferson was first to voice such criticisms, and critics continue to echo his complaint that the states—and, indeed, the American people—lack an arbiter to review and restrain the Supreme Court. Jefferson argued that Supreme Court decisions often crossed the line from constitutional interpretation to legislation—that “case law” itself represents legislation by court fiat.
“The legislative and executive branches may sometimes err,” Jefferson argued time and again, “but elections . . . will bring them to rights. The judiciary branch . . . [is] like gravity, ever acting, with noiseless foot and unalarming advance, gaining ground step by step . . . engulfing insidiously the [state] governments.” Jefferson complained that Supreme Court justices and the rest of the federal judiciary “consider themselves secure for life” and independent of “the will of the nation” because they do not have to face elections and are not subject to term limits.16
Apart from impeachment of individual justices, there were (and are) few checks on the Supreme Court’s exercise of powers. The Supreme Court itself can hear—and has heard—challenges to previous court decisions, and it has, on occasion, reversed or tempered those earlier rulings. Congress can check
Supreme Court powers by passing laws that negate the effects of court decisions, and it can respond to abuses of power by impeaching and removing individual justices. It can also invoke Article V of the Constitution and initiate the slow, cumbersome process of amending the Constitution to void a Supreme Court decision.
THE FUROR THAT JEFFERSON PROVOKED AGAINST THE SUPREME COURT gained intensity in the South in the fall of 1823, when Associate Justice William Johnson, presiding in Charleston’s circuit court, declared South Carolina’s Negro Seamen Act unconstitutional. South Carolina had passed the act in response to rumors of an imminent slave rebellion in Charleston following Haiti’s bloody slave uprising (see page 152). The law required imprisonment of all black seamen on arriving ships—free or not—for the duration of their stay and regardless of a ship’s country of origin. Ship captains were held responsible for enforcing the law, and black seamen who failed to comply were to be arrested and sold into slavery.
“Our brother Johnson,” Marshall wrote to Joseph Story, “has hung himself on a democratic snag in a hedge composed entirely of thorny states’ rights in South Carolina.”
The subject is one of much feeling in the South. . . . The decision has been considered as another act of judicial usurpation, but the sentiment has been avowed that if this be the Constitution, it is better to break that instrument than submit to the principle.17
President Monroe drew some attention away from Johnson’s decision by announcing plans to retire at the end of his second term. Burning with ambition to succeed him, members of his cabinet filled the press with so many attacks on each other that the newspapers and their readers all but forgot the Negro Seamen case.
Also drawing attention away from the Negro Seamen controversy was the outbreak of waterfront violence in many cities resulting from a spreading war between steamboat operators. New York State’s legislators had planted the seeds of conflict sixteen years earlier in 1808, when they granted steamboat inventor Robert Fulton and his partner Robert Livingston exclusive rights to operate steamboats in New York waters. Louisiana’s legislature followed suit in its waterways three years later, in 1811.
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