"John Marshall stands in history as one of that small group of men who have founded States. He was a nation-maker, a state-builder. His monument is in the history of the United States and his name is written upon the Constitution of his country." So spoke Senator Lodge on John Marshall Day, February 4^th, 1901, paying homage to the man whose Supreme Court played a fundamental role in establishing the strong American Union and the strong national government that we know today.

When it became evident that the powers of Congress under the Articles of Confederation could not effectively fulfill the need for a central governmental power among the newly independent United States of America, the founders met at Philadelphia "to form a more perfect Union." Although the words "federal" and "federation" do not appear in the document they created, the seeds for what has become the most centralized federal system in existence were sown in the United States Constitution of 1787. The Constitution laid the framework for the separation of powers, dividing sovereignty between the legislative, executive, and judiciary branches of the government.

Among the issues that slowed the forming of a strong national government was the relationship between the nation and the states. At the time of Independence, there was not a nation, but rather several equally sovereign states. Indeed the time was not right in the late 1700’s to delegate all powers to one unitary authority, as Alexander Hamilton would have wanted. In his effort to persuade the people of the State of New York to ratify the Constitution, James Madison wished to "discountenance the supposition that the operation of the federal government will by degrees prove fatal to the State governments." The

early Federation was not a strong one.

The separation of powers afforded by the Constitution invested the Supreme Court with the judicial power of the United States (Art. III Sec. I). The Court’s early years were marked by three distinct role problems: judicial independence, the freedom of the judges to make sound decisions without the threat of impeachment; judicial review, the power to review and strike down legislation that is inconsistent with a constitution; and judicial sovereignty, the binding power of the Court’s op inion on other branches of government.

The dominant judicial value of the first period of the history of the Supreme Court (1789-1865) was preserving the American Union. When John Marshall, Secretary of State under the Federalist administration of John Adams, was appointed Supreme Court Chief Justice in 1801, he brought with him a strong Federalist concept of what the nation should be. Although his predecessors had also envisioned moving from state sovereignty to national sovereignty, "they had often spoke overplainly ; and they had spoken thus in support of a doctrine that immediately imperiled the concrete interests of most of the states." Marshall ruled with a certain moderation, waiting for the right political climate before breaking new ground in the fortifi cation of the national supremacy upon which the very existence of the Supreme Court rested.

The first major ruling of the Marshall Court, by which it began to broaden the national judicial power, was Marbury v. Madison, decided in 1803. In his decision,

Marshall brought into question the validity of section 13 of the Judiciary Act of 1789. His

contention was that the Judiciary Act violated the Constitution, because an act of Congress cannot redefine the Supreme Court’s original jurisdiction, as outlined in the
Constitution (Art. III Sec. 2), and that a law that is not in line with the "letter and the spirit" of the Constitution is unconstitutional and invalid. What he established has become know as the "doctrine of judicial review."

Marbury was only the start; over the next 30 years, the Supreme Court under John Marshall continued to construe the Constitution in many ways so as to fortify the national judiciary’s power, expand the national legislative power, and promote the national legislature’s supremacy. Three decisions that have been fundamental in the creation of the strong American Union and the strong national government by the Marshall Court are Martin v. Hunter’s Lessee, McCulloch v. Mary land, and Gibbons v. Ogden.

In Martin v. Hunter’s Lessee, the issue in question is the Supreme Court’s power of appellate jurisdiction over cases pending in state courts. The original case pertained to a land dispute in Virginia. The Virginia district co urt ruled for Martin, on the grounds of anti-confiscation clauses in treaties of 1783 and 1794. The Virginia Supreme Court of Appeals reversed, claiming that the state’s title to the land was perfected before the treaties came into effect. The Supreme Court, in Fairfax’s Devisee v. Hunter’s Lessee, reversed again, affirming the Virginia district court’s decision, holding that the treaties were acts of Congress which took precedent over Virginia law. The Virginia Supreme Court of Appeals responded two years later, claiming that its judgments on matters of Virginia law were definitive. It also claimed that the process by which Fairfax had been brought to the Supreme Court (section 25 of the Judi ciary Act) was unconstitutional. Martin v. Hunter’s Lessee was brought before the Supreme Court in 1815 by a petition for a writ of error (to force the Virginia Supreme Court of Appeals to accept the ruling in Fairfax) that was drafted by Ma rshall, himself a party to the Martin claim. The decision, delivered by Justice Story, held that "the appellate power of the United States does extend to cases pending in the state courts; and that the 25^th section of the judiciary act, wh ich authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and the spirit of the constitution." Thus, the national judiciary was again fortified, now with the power to exercise its appella te jurisdiction over the State courts.

A few years later the Supreme Court again faced a question of national supremacy, in McCulloch v. Maryland, concerning the implied powers of Congress. The federal government had established and incorporated several branches of t he Bank of the United States, one of which was in Maryland. The state legislature imposed a heavy tax on any bank operating in the state that did not have a state charter. McCulloch, the Bank’s cashier, refused to pay the tax, arguing that such a tax on a federal instrumentality was invalid and need not be paid. Maryland argued that the incorporation of the Bank exceeded the powers delegated to Congress. In his opinion, Marshall ruled that the "necessary and proper" clause gave Congress the i mplied power and authority to incorporate a bank, because it was necessary in order to exercise Congress’ power "to regulate Commerce … among the several States" (Art. I sec. 8). He further ruled that the power to tax was the power to destroy, and that the people of one state do not have the authority to destroy the will of the people of the several States; since the Constitution and the national government proceed from the people, and not from the States, the national government can act to lim it state sovereignty. Along with its precedent of national supremacy, Marshall’s decision in McCulloch resulted in a broad definition of the "necessary and proper" clause, allowing Congress to legislate more freely, so long as its action s are "necessary and proper" in the exercise of its original powers (Art. I Sec 8).

In Gibbons v. Ogden, Marshall’s court for the first time interpreted the interstate commerce clause. The case concerns a monopoly granted by the State of New York, to Livingston and Fulton, to oversee the operation of steam boat s on all navigable waters in the state. Gibbons operated a steam boat line from New York to New Jersey with a federal coasting license. The New York Supreme Court ruled that Gibbons could not operate his line because of the steam boat monopoly. When the case came to the Supreme Court in 1824, Marshall defined commerce to be not only traffic, the buying and selling of goods, but to include navigation. The steam boat line from New York to New Jersey was therefore interstate commerce, and was the province of Congress to decide. In granting a coasting license to Gibbons, Congress simply made a law in pursuance of its Constitutional power to regulate commerce. Marshall’s Supreme Court read, literally, that "the Laws of the United States which shall b e made in Pursuance" of the Constitution were the "supreme Law of the land," (Art. VI) and as such no state could assume a power delegated to Congress.

Essentially, the decisions handed down by the Marshall Court accomplished what John Jay and Alexander Hamilton had envisioned at the time of Ratification. With few recent exceptions, the American people truly believe that the Supreme C ourt is definitive in all matters of American law, both state and federal, that the United States is more sovereign than their own individual state, and that Congress’s authority to legislate is supreme. Indeed, had it not been for these rulings, the cau se of national union would have been defeated.

The concept of counter-factual history might help us in our understanding of the significance of the rulings by the Marshall Court. If Martin had established the state’s right to interpret the Constitution, McCulloch hel d that the national government proceeds from the states and can be disregarded or checked by them, and Gibbons allowed for states to regulate interstate and international commerce as they chose, then the history of America could have been a very di fferent one.

In 1828, Vice President John C. Calhoun, a South Carolina native and a fervent State’s Rights advocate, anonymously published an antitariff essay, arguing that "the Tariff of 1828 made southerners serfs to northern industrialists,& quot; and that " ‘no free government would permit the transfer of power and property from one class or section to another.’ " He believed that in order to protect themselves from the tyranny of the majority (Congress), each state should have a constitutional right to nullify any unconstitutional act of Congress. This would invest the states with the power of judicial review, allowing them to serve as a check on the federal government. Had Marshall’s writ of error in Martin not been accepted, or had the Virginia Supreme Court of Appeals been allowed to hold section 25 of the Judiciary Act unconstitutional, it is very possible that State’s Rights would have moved in the direction C alhoun envisioned.

The Civil War amendments to the Constitution, ratified by the Congressional ‘Radical Republicans’ in the late 1860’s, were intended to settle the question of the state of African-Americans. Legally, they were to prohibit involuntary se rvitude, give citizenship rights to all, and guarantee to all citizens the right to vote. Despite the attempts made by these amendments, the human rights of African-Americans continued to be denied throughout the former Confederacy through state legislat ion like the Black Codes, Jim Crow Laws, and the Grandfather Clause. Had the Marshall Court not acted in Martin to subvert the Virginia Supreme Court’s power to interpret the Constitution, it would follow that the former Confederates in the Deep S outh would assert their judicial power to interpret the 14^th Amendment, making whatever distinctions they chose among citizens. An unchecked southern interpretation might read that " ‘All persons born or naturalized in the United States … are citizens of the United States,’ (14^th Amend. Sec. 1) does not supersede the states’ authority to determine the quality of such citizenship." This would lend legitimacy to the numerous practices of state-sponsored discrimination tha t have plagued this nation since its founding. Further, it would have weakened the Union by allowing localized interpretation of the highest federal law.

As the debate over the antebellum economic institution of chattel slavery became more heated, so did the question of the nation-state relationship. Northern states opposed to the Fugitive Slave Law of 1850 deplored their responsibility to return slaves to the South. The provisions of this act of Congress included a $1000 fine and a six month jail term for anyone convicted of aiding a fugitive slave, and thus outraged principled northern abolitionists. Had it not been for their belief in, or at least the respect for, Congressional supremacy, the Northern States might have followed more closely Frederick Douglass’ arguments for a forceful resistance. If the ruling in McCulloch had gone in favor of state legislative supremacy, establishing that the national government proceeded from the States and that individual states could legislate against the federal government, it would follow that a state like Massachusetts or New York could have created a law to thwart the will of the S outh, perhaps by making slave-catchers outlaws. Although this would have had a very positive effect on African-American citizenship and rights in those states who chose to disobey Congress, their defiance of the national will would have left these Northe rn States in insurrection against the Union. The Democratic (pro-slavery) Congress could have executed its Constitutional power to "provide for calling forth the Militia to execute the Laws of the Union, [and] suppress Insurrections." (Art. I. Sec. 8) The fundamental rift between North and South would most likely have led to a war among the states in the early 1850’s, what one might call a war of northern aggression.

As well as establishing national legislative supremacy, Marshall’s decision in McCulloch provided a broad definition of the "necessary and proper" clause (Art. I Sec. 8). In interpreting the scope of the powers of Con gress, Marshall held that Congress had the implied power to legislate in any manner that was "necessary and proper" in order to carry out the explicit powers delegated by Article I Section 8. However, had "necessary and proper" been read very narrowly, it would have limited the powers of Congress to those original powers expressly delegated by the Constitution. Today’s Congress would be merely a custodian to the federation of sovereign states, occupying itself with such menial tasks as refurbishing post offices and printing new paper money; the powers of providing for the general welfare, regulating the economy, and declaring war would have been lost along with the power of the purse. If the powers of the national legislature would have been limited to those areas explicitly defined in Article I Section 8, Congress would not have been able to enact the most important legislation of our century, including the New Deal, the Civil Rights Act, and the Voting Rights Act. The laws that h ave made the United States what it is today would have had no basis for their existence. The national legislature would, by way of the constraints on it effectiveness, resemble more closely the Continental Congress of the 1770’s and 80’s or the United Na tions General Assembly of the 1990’s, than the powerful and authoritative legislative body we have come to know as supreme.

In his discussion of interstate commerce, McCloskey concludes that Gibbons "hammered a few more nails in the coffin of state sovereignty." The Court’s contention held that the states could not in any way regulate inter state commerce. Had the holding in Gibbons been that any state could regulate the commerce it had among the several States, or with foreign nations, it would have led to interstate commercial warfare. The antitariff Southerners, ardently opposed to the tariff policy of Northeast Industrialists because of the effect it had on their trade with the European nations, could have created their own system of tariffs to hinder the sale of northern manufactured goods in the South. As well,

in further objection to the nationalist economic protectionism of the North, individual southern states might have created ‘Open Door’ policies with France and England. Each state could have created its own trade agreements, with compl ete disregard for the federation’s interests. It would not have taken very long, under such an economic policy, to create a commercial war among the several States. The entire economic foundation of the American Union would be null and void; understanding that economics are fundamental to any federal system, it follows that state regulation of interstate commerce would have terminated the Union in its early days. Gibbons further aided the cause of national supremacy by holding that States could not exercise the powers delegated to Congress. Among the most important powers delegated to Congress in the Constitution is the power "to coin money, regulate the value thereof, and of foreign coin." (Art. I Sec. 8) The value of money is directly related to the economic stability of a state. During the widespread mass deprivation of the Great Depression, tenant farmers and sharecroppers throughout the South and the Great Plains suffered from deflating prices, sterile agricultural conditions, and a lack of available credit. An easy way out for a state suffering from these circumstances is to make credit available to its citizens, via th e unlimited printing of money, creating enough to facilitate trade. If Gibbons had allowed for states to legislate within the sphere of power delegated to Congress, it is possible that several states would have created their own currencies to circ umvent the affliction of the Depression. Concurrently with creating an unbearable level of inflation, the result of having several non-standardized currencies would have made interstate financial transactions treacherous, if not impossible. Again, the e conomic foundation of the Union, and the Union itself, would be questionable.

In retrospect, it is quite difficult to imagine the very loosely bound and decentralized federation that the United States would have become without the federalist decisions handed down by the Marshall Court. The closest approximation might be the European Economic Union, a confederation of equally sovereign nations; but even those nations are slowly moving towards having a centralized government to administer commerce, treaties, human rights, and the environment.

Even in more recent American history, the decentralized national government did little to prevent the legality of racial segregation. As Dickerson and Flanagan explain, "in a decentralized federal system, power at the constituent level (in this case, the state level) can be used to restrict the social, economic, and political rights of minorities." The federal government that was, in the 1960’s, able to significantly eliminate apartheid from the Deep South of the United Sta tes, owes its power to the precedent of national supremacy established by the Marshall Court in the early 1800’s.

Ultimately, history has proven that the decisions made by the Supreme Court under Chief Justice John Marshall have become fundamental to the strong American Union and the strong national government that we know today. National judicial sovereignty, national legislative primacy, and the most centralized federation in existence are John Marshall’s legacy to the American people.