This is not the place for any detailed consideration of Marshall’s decisions. But it would be a strange omission to leave out all consideration of what played so great a part in his life. I must draw, therefore, upon the patience of the reader, while some points are mentioned relating to that class of his opinions which is at once the most important and of the widest interest, viz., those given in constitutional cases. If these matters seem to any reader dull or unintelligible, he must be allowed full liberty to pass them by; but I cannot wholly omit them.

The keynote to Marshall’s leading constitutional opinions is that of giving free scope to the power of the national government. These leading opinions may be divided into three classes: First, such as discuss the nature and reach of the Federal Constitution, and the general relation of the federal government to the States. Of this class, McCulloch v. Maryland, probably his greatest opinion, is the chief illustration. Second, those cases which are concerned with the specific restraints and limitations upon the States. To this class may be assigned Fletcher v. Peck, the bankruptcy cases of Sturgis v. Crowninshield and Ogden v. Saunders, and Dartmouth College v. Woodward. Third, such as deal with the general theory and principles of constitutional law. There is little of this sort; except as it is incidentally touched, perhaps the only case is Marbury v. Madison.

If we look at these great cases merely with reference to their effect upon the history and development of the country, they are of the very first importance. When one names Marbury v. Madison, the first case where the Supreme Court held an act of Congress invalid, and the only one in Marshall’s time; Fletcher v. Peck and Dartmouth College v. Woodward, where legislative grants and an act of incorporation are held to be contracts, protected by the United States Constitution against state legislation impairing their obligation; and New Jersey v. Wilson, holding that a legislative exemption from taxation is also a contract protected in the same way;—one sees the tremendous importance of the decisions.

Of coarse we are not to confound this powerful effect of a judgment, or the moral approbation with which we may be inclined to view it, with the intrinsic merit of the reasoning or the legal soundness of the conclusions. It is not uncommon to speak of the reasoning in Marbury v. Madison and Dartmouth College v. Woodward with the greatest praise. But neither of these opinions is entitled to rank with Marshall’s greatest work. The very common view to which I have alluded is partly referable to the fallacy which Wordsworth once remarked upon when a friend mentioned “The Happy Warrior” as being the greatest of his poems. “No,” said the poet, “you are mistaken; your judgment is affected by your moral approval of the lines.”

If we regard at once the greatness of the questions at issue in the particular case, the influence of the opinion, and the large method and clear and skillful manner in which it is worked out, there is nothing so fine as the opinion in McCulloch v. Maryland, given at the February term, 1819. The questions were, first, whether the United States could constitutionally incorporate a bank; and, second, if it could, whether a State might tax the operations of the bank; as, in this instance, by requiring it to use stamped paper for its notes. The bank was sustained and the tax condemned.

In working this out, it was laid down that while the United States is merely a government of enumerated powers, and these do not in terms include the granting of an incorporation, yet it is a government whose powers, though limited in number, are in general supreme, and also adequate to the great national purposes for which they are given; that these great purposes carry with them the power of adopting such means, not prohibited by the Constitution, as are fairly conducive to the end; and that incorporating a bank is not forbidden, and is useful for several ends. Further, the paramount relation of the national government, whose valid laws the Constitution makes the supreme law of the land, forbids the States to tax, or to “retard, impede, burden, or in any way control” the operations of the government in any of its instrumentalities.

This was the opinion of a unanimous court, in which five out of the seven judges had been nominated by a Republican President. But it caused great excitement at the South. On March 24, 1819, Marshall wrote from Richmond to Judge Story: “Our opinion in the bank case has roused the sleeping spirit of Virginia, if indeed it ever sleeps. It will, I understand, be attacked in the papers with some asperity, and as those who favor it never write for the public it will remain undefended, and of course be considered as damnably heretical.” Again, two months later, “The opinion in the bank case continues to be denounced by the Democracy of Virginia.… If the principles which have been advanced on this occasion were to prevail the Constitution would be converted into the old Confederation.”

Another great opinion, of the same class, and also bitterly attacked, was given in the case of Cohens v. Virginia, in 1821. This case came up on a writ of error from a local court at Norfolk. Cohens had been convicted of selling lottery tickets there, contrary to the statute of Virginia. He had set up as a defense an act of Congress providing for drawing lotteries in the city of Washington, and insisted that this authorized his selling tickets in Virginia. When the case reached the Supreme Court of the United States, the counsel for the State first denied the jurisdiction of that court, on the ground, among others, that the Constitution allowed no such appeal from a state court, and that the Judiciary Act of 1789 was unconstitutional in purporting to authorize it. In an elaborate opinion by Marshall, one of his greatest efforts, these contentions were negatived. When afterwards, the case came to be argued on the merits, the decision below was sustained, on the ground that the act of Congress did not purport to authorize the sale of tickets in any State which forbade the sale of them.

Here again the court was unanimous; and it was composed of the same judges who decided McCulloch v. Maryland. But the reception of Cohens v. Virginia at the South was even worse than that accorded the other case. Judge Roane, of the Court of Appeals in Virginia, attacked the opinion anonymously in the newspapers, with what Marshall called “coarseness and malignity.” Jefferson, also, bitterly objected to it.

Of two other cases belonging in the same class of Marshall’s opinions, viz., Gibbons v. Ogden, in 1824, and Brown v. Maryland, in 1827, it is enough here to say that they deal with one of the most difficult and perplexed topics of constitutional law, namely, the coÖrdination of the functions of the national and state governments, in regard to the power granted to Congress to regulate foreign and interstate commerce, a subject of great importance and difficulty, on which the decisions of the Supreme Court are now and long have been involved in much confusion and uncertainty. Gibbons v. Ogden brought into question the constitutionality of a law of New York granting to Fulton, the inventor, the sole right of navigating the waters of New York by steam. The grant had been sustained by Chancellor Kent and by the New York Court of Appeals; but these decisions were now overruled in a famous and powerful opinion. In two other cases on this subject, also of great importance, Marshall gave leading opinions. It may fairly be thought that his treatment of the general question involved in these cases, instructive as it was, was yet less fruitful and less far-seeing than in most of his other great cases.

He was now in a region pretty closely connected with the second class of cases, above named; a set of cases, where even so great a man as Marshall erred sometimes, from interpreting too literally and too narrowly the restraints upon the States. It was natural, in giving full scope to the authority of the general government, that he should be inclined to apply, with their fullest force and operation, these clauses of restraint and prohibition. His great service to the country and his own generation was that of planting the national government on the broadest and strongest foundations. That, as he rightly conceived, was the one chief necessity of his time. In doing this, when it came to considering the reach that must also be allowed to the States, and just how the coÖrdination of the two systems should be worked out, probably no one man, no one court, no human wisdom was adequate, then, to mapping it all out. Time alone, and a long succession of men, after some ages of experience, might suffice for that. The wisdom of those who made the Constitution, as it has lately been said, was mainly shown “in the shortness and generality of its provisions, in its silence, and its abstinence from petty limitations.” But, as time went on, definitions and specifications had to be made and applied; silence, abstinence, generality, were no longer adequate. And in the class of cases, now referred to, great and far-reaching as were the results of Marshall’s labor, and unqualifiedly as they are often praised, one may perceive, as I venture to think, a less comprehensive and statesmanlike grasp of the problems and their essential conditions than are found in some other parts of his work.

And so, when the Chief Justice, in 1812, held, without argument, that a grant of land by a State, with a privilege of exemption from taxation, contained a contract against future taxation, protected, even in the hands of subsequent holders, by the constitutional provisions against impairing the obligation of contracts, something was done which would probably not be done to-day, if the question came up for the first time. Certainly the soundness of the doctrine has been frequently denied by judges of the Supreme court, and it has only survived through the device of construing all grants in the narrowest manner. “Yielding,” says the Court in a recent case, “to the doctrine that immunity from taxation may be granted, that point being already adjudged, it must be considered as a personal privilege, not extending beyond the immediate grantee, unless otherwise so declared in express terms.” And again the court has recently remarked on the “well-settled rule that exemptions from taxation are … not to be extended beyond the exact and express language used, construed strictissimi juris.”

Again, in Dartmouth College v. Woodward, in 1819, when it was held that a legislative grant of incorporation was a contract protected by the same clause of the Constitution, something was done from which the court was subsequently obliged to recede in an important degree. Acts of incorporation for the manufacture of beer, for carrying on slaughter-houses, for dealing in offal, and for conducting a lottery,—a reputable business in 1819, when the Dartmouth College case was decided,—such acts as these have been treated by the Supreme Court as not being thus protected. It is held that no legislative body can contract to part with the full power to provide for the health, morals, and safety of the community. Such things, it is said, are not the proper subject-matter of legislative contract,—a doctrine which it has been widely thought should, originally, have been applied to all acts of incorporation. “The State,” says a distinguished judge, and writer on constitutional law, in speaking of the Dartmouth College doctrine and its development, “was stripped, under this interpretation, of prerogatives that are commonly regarded as inseparable from sovereignty, and might have stood, like Lear, destitute before her offspring, had not the police power been dexterously declared paramount, and used as a means of rescinding improvident grants.”[34]

In the great bankruptcy cases of Sturgis v. Crowninshield and Ogden v. Saunders, where it was held, in 1819 and 1827, that the constitutional provision as to impairing the obligation of contracts forbade the State to enact an insolvency law which should discharge a person from liability on a contract made before the law; and then again that it did not forbid the same thing as touching a contract made after the law, Marshall, who gave the opinion in the first case, put it on a ground equally applicable to the second; and so, in the second case, gave a dissenting opinion. The obligation of the contract, he said, comes from the agreement of the party; it does not arise from the law of the State at the time it was made, entering into or operating on the contract. But this doctrine and this reasoning were justly disallowed.

Finally, in 1830, in Craig v. Missouri, Marshall gave the opinion that certain certificates issued by a State in return for deposits, and intended to circulate as money, were bills of credit; and as such forbidden by the Constitution. There were three dissenting opinions; and soon after Marshall’s death, a different doctrine was established by the court,—wisely it would seem,—and has ever since been maintained.[35]

Coming now to the third class of cases mentioned above, that which deals with the fundamental conceptions and theory of our American doctrine of constitutional law, Marbury v. Madison is the chief case. In speaking of that case I have purposely delayed until this point any reference to this aspect of it. While, historically, this part of it is what gives the case its chief importance, yet it occupies only about a quarter of the opinion.

In outline, the argument there presented is as follows: The question is whether a court can give effect to an unconstitutional act of the legislature. This question is answered, as having little difficulty, by referring to a few “principles long and well established.” (1) The people, in establishing a written constitution and limiting the powers of the legislature, intend to control it; else the legislature could change the constitution by an ordinary act. (2) If a superior law is not thus changeable, then an unconstitutional act is not law. This theory, it is added, is essentially attached to a written constitution. (3) If the act is void, it cannot bind the court. The court has to say what the law is, and in saying this must judge between the Constitution and the act. Otherwise, a void act would be obligatory; and this would be saying that constitutional limits upon legislation may be transgressed by the legislature at pleasure, and thus these limits would be reduced to nothing. (4) The language of the Federal instrument gives judicial power in “cases arising under the Constitution.” Judges are thus in terms referred to the Constitution. They are sworn to support it and cannot violate it. And so, it is said, in conclusion, the peculiar phraseology of the instrument confirms what is supposed to be essential to all written constitutions, that a law repugnant to it is void, and that the courts, as well as other departments, are bound by the constitution.

The reasoning is mainly that of Hamilton, in his short essay of a few years before in the “Federalist.” The short and dry treatment of the subject, as being one of no real difficulty, is in sharp contrast with the protracted reasoning of McCulloch v. Maryland, Cohens v. Virginia, and other great cases; and this treatment is much to be regretted. Absolutely settled as the general doctrine is to-day, and sound as it is, when regarded as a doctrine for the descendants of British colonists, there are grave and far-reaching considerations—such, too, as affect to-day the proper administration of this extremely important power—which are not touched by Marshall, and which must have commanded his attention if the subject had been deeply considered and fully expounded according to his later method. His reasoning does not answer the difficulties that troubled Swift, afterwards chief justice of Connecticut, and Gibson, afterwards chief justice of Pennsylvania, and many other strong, learned, and thoughtful men; not to mention Jefferson’s familiar and often ill-digested objections.

It assumes as an essential feature of a written constitution what does not exist in any one of the written constitutions of Europe. It does not remark the grave distinction between the power of disregarding the act of a coÖrdinate department, and the action of a federal court in dealing thus with the legislation of the local States; a distinction important in itself, and observed under the written constitutions of Europe, which, as I have said, allow this power in the last sort of case, while denying it in the other.

Had Marshall dealt with this subject after the fashion of his greatest opinions he must also have considered and passed upon certain serious suggestions arising out of the arrangements of our own constitutions and the exigencies of the different departments. All the departments, and not merely the judges, are sworn to support the Constitution. All are bound to decide for themselves, in the first instance, what this instrument requires of them. None can have help from the courts unless, in course of time, some litigated case should arise; and of some questions it is true that they never can arise in the way of litigation. What was Andrew Johnson to do when the Reconstruction Acts of 1867 had been passed over his veto by the constitutional majority, while his veto had gone on the express ground, still held by him, that they were unconstitutional? He had sworn to support the Constitution. Should he execute an enactment which was contrary to the Constitution, and so void? Or should he say, as he did say to the court, through his Attorney-General, that “from the moment [these laws] were passed over his veto, there was but one duty, in his estimation, resting upon him, and that was faithfully to carry out and execute these laws”?[36] And why is he to say this?

Again, what is the House of Representatives to do when a treaty, duly made and ratified by the constitutional authority, namely, the President and Senate, comes before it for an appropriation of money to carry it out? Has the House, under these circumstances, anything to do with the question of constitutionality? If it thinks the treaty unconstitutional, and so void, can it vote to carry it out? If it can, how is this justified?

Is the situation necessarily different when a court is asked to enforce a legislative act? The courts are not strangers to the case of political questions, where they must refuse to interfere with the acts of the other departments,—as in the case relating to Andrew Johnson just referred to; and in dealing with what are construed to be merely directory provisions of the Constitution; and with the cases, well approved in the Supreme Court of the United States, where courts refuse to consider whether provisions of a constitution have been complied with, which require certain formalities in passing laws,—accepting as final the certificate of the officers of the political departments. A question, passed upon by those departments, is thus refused any discussion in the judicial forum, on the ground, to quote the language of the Supreme Court, that “the respect due to coequal and independent departments requires the judicial department to act upon this assurance.”

So far as any necessary conclusion is concerned, it might fairly have been said, with us, as it is said in Europe, that the real question in all these cases is not whether the act is constitutional, but whether its constitutionality can properly be brought in question before a given tribunal. Could Marshall have had to deal with this great question, in answer to Chief Justice Gibson’s powerful opinion in Eakin v. Raub, in 1825,[37] instead of deciding it without being helped or hindered by any adverse argument at all, as he did, we should have had a far higher exhibition of his powers than the case now affords.[38]