The Great Chief Justice


Marshall satisfied everyone save Ogden and his friends by turning to the clause of the Constitution that gives Congress power to “regulate commerce … among the several states” and endowing it with a meaning that is scarcely in its words. Since Gibbons’ steamboat service hit several New Jersey ports, it clearly involved commerce among the several states or, as it has come to be called, interstate commerce. What Marshall held was that the Constitution’s grant to Congress of power to regulate interstate commerce withdrew all such power, by implication, from the states—even when Congress was not doing any regulating. Therefore, the steamboat monopoly had been an attempt on New York’s part to poach on the federal government’s preserves and, as such, was unconstitutional. Gibbons could keep right on running his steamboat line and so could anyone else who wanted to start another one. But infinitely more significantly, it was written into the law of the land that wherever Congress has specific power, the states have none (or, as Courts since Marshall have slightly modified it, practically none), despite the absence of any such exclusive rule from the words of the Constitution itself.

Before, during, and after this trio of memorable decisions, Marshall’s Court indulged in some considerably less admirable judicial work.… There were, for instance, the Yazoo land claims … based on the cheap “sale” of millions of acres of land by a Georgia legislature that was indubitably and confessedly bribed to sell it. Despite the quick repudiation of this “sale” by a subsequent and honest legislature, despite the fact that the claims had been brought up by speculators, mostly from New England, who counted on political influence to bring them a fast profit—despite all this, Marshall’s Court ruled that the claims, though concededly conceived in fraud, were still perfectly valid and that the state of Georgia had to honor them. The get-rich-quick gamblers eventually collected close to five million dollars.

It was also under Marshall’s aegis that the Court began to uphold—in a series of cases that came to total more than ninety—all sorts of patently phony claims to Florida or Louisiana land, based on forged “copies” or copies of “copies” of alleged grants from Spanish authorities just before the U.S. acquired these territories. It was under Marshall’s aegis, too, after gold was discovered on Cherokee Indian land and Georgia whites tried to grab it by fair means or, for the most part, foul, that the Court in a trio of cases backed and filled, ducked the biggest and toughest problem, and ended up with the decision that led Andrew Jackson to invite Marshall to enforce it himself. So raw was the treatment of the Cherokees which Marshall blandly countenanced that his almost alter ego , Justice Story, after a rare dissent from a Marshall holding, blurted out in a letter to a friend: “Depend on it, there is a depth of degradation in our national conduct.… There will be, in God’s Providence, a retribution for unholy deeds, first or last.”

Under Marshall the Court began its long and sorry history, only very recently corrected in some part, of winking at, if not actively blessing, the illegal and often inhuman treatment of Negroes in the South. A slave owner himself, Marshall used all manner of technical, legalistic word tricks to evade real enforcement of the congressional outlawing of the slave trade; here, for once, he was not so anxious to uphold Congress’ hand, presumably because he saw it as a threat, not a boon, to one well-propertied class. And when a couple of southern states passed laws banning free northern Negroes from crossing their borders, Marshall’s passionate concern for exclusively federal control of interstate commerce did not carry over to this form of interstate movement. Justice Johnson, the one Court Republican who stood up against Marshall from the beginning, courageously branded one of these laws unconstitutional—as it clearly was—when it came before Johnson in a circuit court. Marshall not only declined to back up his colleague but wrote to Story in a tremendously revealing vein: “Our brother Johnson, I perceive, has hung himself on a democratic snag in a hedge composed entirely of thorny State-Rights in South Carolina.… You have, it is said, some laws in Massachusetts, not very unlike in principles to that which our brother had declared unconstitutional. We have its twin brother in Virginia; a case has been brought before me in which I might have considered its constitutionality, had I chosen to do so; but it was not absolutely necessary, and as I am not fond of butting against a wall in sport, I escaped on the construction of the act.” This, be it remembered, was the great “expounder of the Constitution,” who was “escaping”—where human rights, not property rights, were at stake—from expounding it.