John Marshall Part II
Last week we introduced readers to John Marshall, one of the most consequential and least-known members of the founding generation. Marshall not only solidified the authority of the Court — prior to his appearance it wasn’t a very desirable appointment because justices also had to “ride circuit” — but also tilted our politics increasingly in the direction of the national government. This makes him a hero to some and a villain to others. This space is typically agnostic about such judgments, except for making the effort to understand the dynamics at play in someone’s judging and decision-making.
We get our most significant glimpse into Marshall’s thinking on questions of federal authority in his ruling in McCulloch v. Maryland (1817). The case is typically thought of as defending the doctrines of implied powers and national supremacy, and that is true as far as it goes. But Marshall’s argument goes beyond simply defending those principles. It is in many ways an act of theory, an attempt to ground once and for all the rule of law into something other than either the Constitutional document itself or popular majorities. In that sense, he develops the idea of America as an ongoing event, as an act of creation that calls into being a superseding authority.
The central question: Who were the parties that created the Constitution? What are the possible answers to this question? The State of Maryland put forward the perfectly plausible argument that the parties to the Constitution were the states in their sovereign authority (see Madison’s argument in Federalist #39). Now Marshall allows some credence to this position, pointing out that “no political dreamer was ever wild enough to think of breaking down the lines which separate the States,” although this is presented by Marshall as a pragmatic rather than a principled position. Indeed, Marshall quickly dismissed the argument that the Constitution is merely a compact between the states. Naturally, the people voted on ratification in their state conventions, “and where else should they have assembled?” he asked. Such gatherings, he seems to say, were there for purposes of convenience. The state ratifying conventions did not themselves establish the principle of state dominion; otherwise, he thought, the state governments would have had to affirm or reject the document. Instead, the conventions assumed that the consent of the people is the authoritative principle at work. Should we conclude, then, that the Constitution is a compact between the people of America, in their respective states, that created a community of common purpose? Is it a social contract in the sense that Marshall often affirmed?
Marshall makes a different argument, and the key is found in the word “emanates.” “The government of the Union, then (whatever may be the influence of this fact upon the case), is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them.” Marshall claimed that nationhood did not result from the formation of a common government, but rather the central government emanated from a preexistent nationhood. Even if the American people didn’t understand themselves as one nation, in part because of attachments to local and state loyalties, the act of national birth had already occurred in the Declaration of and the battle for independence. This was the original act of creation from which the Constitution itself was a kind of efflorescence. The Constitution could not be anything other than an expression of the nation, for an emanation is materially identical to the thing from which it emanates. Any interpretation that suggests the document is merely a contract or is controlled by the interests of the states fails to grasp the fundamental relationship between the formation of the people into a nation and the emanation of the same into the rule of law.
We gain a better insight into Marshall’s argument when we consider two related documents that recent historiographic work has demonstrated came from Marshall’s pen. Within a short time of the Court’s ruling in McCulloch the Richmond Enquirer published a series of attacks on the decision under the pseudonym “Amphictyon.” Marshall replied with an essay in the Philadelphia Union under the name “A Friend to the Union.” The Enquirer posted four more essays criticizing “Friend’s” position, and Marshall replied with a nine-part essay in the Alexandria Gazette under the name “A Friend to the Constitution.” These essays give us additional insight into Marshall’s thinking concerning the question of origins.
Marshall works rhetorically along two lines: to reaffirm McCulloch’s holding that the Constitution was not a creation of the states; and second to discuss how the American people might have generated the Constitution without having done so as one undifferentiated mass. While these essays predate the Jacksonian revolution, the second part of the argument becomes more important to Marshall over time.
Marshall leaves no doubt that he believes the argument about state contractualism to be untenable. The key, for Marshall, hinges on what we mean by a state. He affirmed thinking of it simply as “the people who inhabit a territory.” If those in favor of the idea that the Constitution was created by the states meant that the Constitution is formed by the legislatures of the states, then Marshall argued that both text and history contradict such a claim. The powers of the federal government were in no way dictated by “we the states.” The people of the United States, Marshall claimed, while obviously organized into separate territories, nonetheless had a “national existence.” He argued that fighting wars as a nation demonstrated the supremacy of national identity. Furthermore, the failure of the Articles of Confederation evidenced not only faulty techniques of ruling but that any government predicated as a compact among the states was by nature contrary to the founding principle of American nationhood. The Articles failed precisely because they weren’t an emanation but were a compact instead. The clear principle was that any union based on the sovereignty of the states was bound to failure.
Marshall introduced an additional layer of subtlety, however, arguing that “Amphictyon” made a fundamental error in relying on contract theory as a way of understanding the Constitution itself. This “fundamentally erroneous reliance on compact theory” resulted in the false conclusion that “our constitution is a mere league, or a compact, between the several state governments, and the general government.” Were that the case, the Supreme Court would have no authority to resolve disputes between the states and the general government, under the principle that no party is allowed to be a judge in its own case. There would be a want of an independent judge, and such want would render conflicts between the states, or between the state and the federal governments, unresolvable. In that instance, the Court would have no authority to intervene, and the lack of such authority would make hash out of the language of the Constitution itself, which clearly gives the Court authority to insert itself in conflicts between the states as a matter of original jurisdiction. Marshall noted the Constitution was a “government, created for the nation by the whole American people,” a position that rendered any acknowledgement of state sovereignty nugatory.
His concern about whether there were parties to the contract played an important role in his musings. The federal government obviously could not be a party to a contract of which it is the creation. Nor could the states have made “this instrument.” In truth, “it is the act of the people themselves,” granted in their respective states, but shaping the government from an already formed national community. The American people alone could have created a Constitution of such authority, and that Constitution itself could not be the result of a contract, but emerge only from their primordial genius. The benefits of such production accrue both to the national government and to the people. Marshall took the fact that there are no apparent benefits in Constitutionalism to the states as an argument against state sovereignty. For Marshall the key point is this: ratification may have tracked state boundaries, but to look at that is to miss the big picture, which is that the very need for ratification reflected a fundamental dissatisfaction with the state governments themselves. This dissatisfaction acted as the birth pangs of the new government.
This “new birth” allowed Marshall to draw certain doctrinal conclusions. Unless the new government was seen as an emanation there would be no basis upon which the court could operate as an independent body. Unless such emanation had actually occurred, there could be no argument for national supremacy. Indeed, Marshall saw that the only alternative would be to leave the union perpetually on the cusp of dissolution, or at least to leave the operations of the federal government wholly at the mercy of the states. For example, if the states were to be allowed to alter the qualifications requirements, they could do so in such a way as to make the election of anyone to Congress impossible. Under those circumstances, any exercise of state authority would lead to political apocalypse. Marshall denied that states could canvas or remonstrate against Congress, the President, or the Courts, for such remonstrance could only be exercised “by all who are affected by those measures.” In that sense, Marshall’s reading of the Constitution is both cause and effect of national supremacy.
Later in the document, Marshall denied any necessary link between the process of creation and the thing created. Government depended solely on its Constitution, he argued, not on the process by which it was ratified. This seems a corollary of his general argument, which diminished consistently the role that ratification by the states played in the Constitution-making process. Marshall was more concerned with getting the creation myth itself right than he was with issues of historical accuracy or, for that matter, theoretical coherence. In McCulloch he treated the issue of the creation myth as determinative of the outcome. The creation could not be the result of a compact among the states because the states would not willingly give up their sovereignty. Since no party entered into the agreement of the Constitution, there could be no jurisdictional questions as regards the Court’s resolution of any potential problem. Practically speaking, it was difficult to see exactly how it could be otherwise, unless Maryland had simply been allowed to tax the national bank, and by taxing to destroy.
The connection to the doctrine of implied powers becomes more obvious. “A Friend to the Union” devoted almost an entire essay to defending the Court’s reading of the necessary and proper clause. Marshall argued that the court properly rejected the more narrow reading that would have restricted federal power in favor of a “fair interpretation” that would facilitate Congress’s broad authority to manage public affairs, particularly economic ones. For Marshall, this was not a searching for additional powers, but rather an enlargement of “incidental” ones which were implicit in the Constitution.
Marshall’s creation myth resonates throughout American history. Certainly, it informed the Whiggish desire to improve, to consolidate, to progress. We see it in Lincoln’s “Gettysburg Address” with its images of birth and fecundity, and in the First Inaugural’s arguments concerning nationhood and secession. We see it in subsequent Court decisions, most notably perhaps in Wickard v. Filburn. We see it in the New Deal and in the Great Society. The creation myth serves not only the positive function of accruing power to the central government, but perhaps more importantly the critical function of undermining the claims to legitimacy of the states, which are in turn held to be backwaters of bigotry, inequality, and inefficiency. It serves the agenda of the construction of a broad ideology that supports the formation of a mass society – one that would expand in the Jacksonian era, even if Marshall himself recoiled from the consequences. It is a myth that overcomes “the humiliation” of state behavior (Federalist 15): indebtedness, dependence on foreign powers, weakness against foreign occupiers, navigation of waterways and territory, repression of commerce, a lack of respect, economic dislocation and instability, inability to make progress, problems of credit. In short, said Hamilton, “national disorder, poverty, and insignificance” produce a most melancholy situation. This grim enumeration that Marshall quoted approvingly pointed both to the disunity and democratic excess within the states. The failure to live up to treaty obligations was largely a result of the states’ refusal to pay British creditors and to abide by the dictates of the treaties.
Marshall believed the governments of the states tended to fall to public whims, to excessive, vague, and despotic measures. The state governments had amply demonstrated, Marshall thought, they were no longer viable, that they couldn’t perform the basic functions of governing without radical reform, and that the source of reform could only be found in the very act of national creation itself, where the nation formed itself into a unified and powerful force which ultimately commanded the respect of the greatest power on earth. This was the only way to avoid further humiliation and failure, but seeing the Constitution as a compact between the states would likely make the whole thing “fall to pieces.” This alternative creation myth, Marshall believed, did little justice to the actual motivations people had, for citizen dismay with their own state governments provided the oppositional principle that would overcome local and state-wide allegiances.
Naturally, such a myth would have serious consequences for how we see the issues of citizenship, and the nature of the ends of politics. The inquiry into origins connected directly to Marshall’s sense of the fundamental purpose of any political community: to create a powerful and prosperous regime. Marshall may not be the best-known articulator of this idea, but he is perhaps the finest and most subtle. Nowhere is Marshall’s slow and halting toe-dipping into theory more on display.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
Related Essays
