An economic interpretation of the Constitution of the United States

by Charles A. Beard

MARSHALL’S ANALYSIS OF THE CONFLICT

It must not be thought that this antagonism of economic interests which, in the language of controversy, frequently took on the form of a war between “aristocracy” and “democracy” was observed only by partisans whose views were distorted by the heat of battle. On the contrary, it was understood by the keenest thinkers—in fact, one may say that the more profound the wisdom of the observer, the clearer was his comprehension of the issues at stake. Next to Madison, whose concept of the Constitution-making process has already been fully discussed,[^[693]] John Marshall probably understood best the nature of the new instrument, the social forces which produced it, and the great objects it was designed to accomplish. In speaking from the bench, as Chief Justice, he used, of course, the language of jurisprudence and spoke of the Constitution as a creation of the whole people.[^[694]] But as a historian of great acumen, in which capacity he was not hampered by the traditional language of the bench and bar, Marshall sketched with unerring hand the economic conflict which led to the adoption of the Constitution, and impressed itself upon the nature of that instrument. In his masterly Life of Washington, he sets forth this conflict in unmistakable terms:

1. In the first place, the mercantile interest was sorely tried under the Articles of Confederation. There “was a general discontent with the course of trade. It had commenced with the native merchants of the north who found themselves incapable of contending in their own ports with foreigners; and was soon communicated to others. The gazettes of Boston contained some very animated and angry addresses which produced resolutions for the government of the citizens of that town, applications to their state legislature, a petition to congress, and a circular letter to the merchants of the several sea ports throughout the United States.... The merchants of the city of Philadelphia presented a memorial to the legislature of that state, in which, after lamenting it as a fundamental defect in the constitution that full and entire power over the commerce of the United States had not been originally vested in Congress ... they prayed that the legislature would endeavour to procure from Congress a recommendation to the several states to vest in that body the necessary powers over the commerce of the United States.”[^[695]]

2. The public creditors had lost faith in the old government. “That the debt of the United States should have greatly depreciated will excite no surprise when it is recollected that the government of the Union possessed no funds, and without the assent of jealous and independent sovereigns could acquire none to pay the accruing interest; but the depreciation of the debt due from those states, which made an annual and adequate provision for the interest, can be ascribed only to a want of confidence in the governments which were controlled by no fixed principles; and it is therefore not entirely unworthy of attention. In many of those states which had repelled every attempt to introduce into circulation a depreciated medium of commerce or to defeat the annual provision of funds for the payment of the interest, the debt sunk in value to ten, five, and even less than four shillings in the pound. However unexceptionable might be the conduct of the existing legislature, the hazard from those which were to follow was too great to be encountered without an immense premium.”

3. A profound division ensued throughout the United States based on different views of the rights of property. “At length,” continues Marshall, “two great parties were formed in every state which were distinctly marked and which pursued distinct objects with systematic arrangement. The one struggled with unabated zeal for the exact observance of public and private engagements. By those belonging to it, the faith of a nation or of a private man was deemed a sacred pledge, the violation of which was equally forbidden by the principles of moral justice and of sound policy. The distresses of individuals were, they thought, to be alleviated only by industry and frugality, not by a relaxation of the laws or by a sacrifice of the rights of others. They were consequently the uniform friends of a regular administration of justice, and of a vigorous course of taxation which would enable the state to comply with its engagements. By a natural association of ideas, they were also, with very few exceptions, in favor of enlarging the powers of the federal government....

“The other party marked out for themselves a more indulgent course. Viewing with extreme tenderness the case of the debtor, their efforts were unceasingly directed to his relief. To exact a faithful compliance with contracts was, in their opinion, a harsh measure which the people would not bear. They were uniformly in favor of relaxing the administration of justice, of affording facilities for the payment of debts, or of suspending their collection, and of remitting taxes. The same course of opinion led them to resist every attempt to transfer from their own hands into those of congress powers which by others were deemed essential to the preservation of the union. In many of these states, the party last mentioned constituted a decided majority of the people, and in all of them it was very powerful. The emission of paper money, the delay of legal proceedings, and the suspension of the collection of taxes were the fruits of their rule wherever they were completely predominant.... Throughout the union, a contest between these parties was periodically revived; and the public mind was perpetually agitated with hopes and fears on subjects which essentially affected the fortunes of a considerable proportion of society.”

4. Finally, so sharp was this division into two parties on the lines of divergent views of property rights, that the Constitution, far from proceeding from “the whole people,” barely escaped defeat altogether. So positive is this statement by the great Chief Justice and so decidedly does it contradict his juristic theory of the nature of the supreme law that the two should be studied together. For this reason, the two views enunciated by Marshall are printed in parallel columns:

“So balanced were the parties in some of them [the states] that even after the subject had been discussed for a considerable time, the fate of the constitution could scarcely be conjectured; and so small in many instances, was the majority in its favor, as to afford strong ground for the opinion that, had the influence of character been removed, the intrinsic merits of the instrument would not have secured its adoption. Indeed it is scarcely to be doubted that in some of the adopting states a majority of the people were in the opposition. In all of them, the numerous amendments which were proposed demonstrate the reluctance with which the new government was accepted; and that a dread of dismemberment, not an approbation of the particular system under consideration, had induced an acquiescence in it.... North Carolina and Rhode Island did not at first accept the constitution, and New York was apparently dragged into it by a repugnance to being excluded from the confederacy.” Marshall, in his Life of Washington, written in 1804–07.

“The government [of the United States] proceeds directly from the people; it is ‘ordained and established’ in the name of the people; and it is declared to be ordained ‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty’ to themselves and to their posterity.... The government of the Union then (whatever may be the influence of this fact on the case) is, emphatically and truly, a government of the people. In form and substance it emanates from them. Its powers are granted by them and are to be exercised directly on them and for their benefit.... It is the government of all; its powers are delegated by all; it represents all, and acts for all.” Marshall, in McCulloch vs. Maryland (4 Wheaton, 316), in 1819.