Meantime, the national judiciary had contributed to the expansion of the Constitution in notable ways; sometimes by affirming the constitutionality of powers exercised by the President or Congress, and at other times by narrowing the limits of state authority. In the case of the American Insurance Company v. Canter, twenty-five years after the acquisition of Louisiana, Marshall affirmed the constitutionality of the treaty which had so aroused Jefferson's misgivings. "The Constitution," said the Chief Justice, "confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or by treaty."
In two instances, on the other hand, the Supreme Court gave an interpretation of the "obligation of contracts" clause of the Constitution which seriously limited the powers of the States. In the case of Fletcher v. Peck (1810), the court declared unconstitutional an act of the legislature of Georgia which attempted to revoke the notorious Yazoo land grants of 1795. A grant was held to be a contract within the meaning of the Constitution; and the court found no adequate ground for exempting such contracts from the prohibition of the Constitution.
Far-reaching in its implication, also, was the second instance, when the Supreme Court held unconstitutional and void the acts of the New Hampshire legislature which amended the charter granted by the Crown to Dartmouth College in 1769. Arguing as counsel for the college, of which he was an honored graduate, Daniel Webster held that the charter of a private corporation was a contract which might not be impaired by an act of a state legislature. Chief Justice Marshall only restated and amplified Webster's argument, when he rendered the opinion of the court and declared that New Hampshire might not by law impair the charter of Dartmouth College. To the argument of the counsel for the Commonwealth, contending that the framers of the Constitution never contemplated such a broad use of the word "contract," Marshall replied that it was not enough to say this particular use of the word was not in the mind of the Convention when the article was adopted. "It is necessary to go farther, and to say that, had this particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception."
The immense significance of this decision was not immediately apparent. The peculiar immunity which it gave to private property could not be appreciated until the rise of corporations with concentrated capital. Not even the Chief Justice foresaw that the guaranty of inviolability which he had thrown about a private educational corporation would be demanded with equal right by the great business corporations of the succeeding era.
In the famous case of Gibbons v. Ogden (1824), the Supreme Court gave an interpretation of the commerce clause of the Constitution which also had a profound effect upon subsequent history. In the course of its decision the court declared unconstitutional a law of the State of New York which had granted an exclusive right to operate steamboats in the waters of New York. The regulation of commerce, the court held, had been given exclusively to Congress, and "commerce" as used in the Constitution comprehended not merely traffic and intercourse but also navigation. The power to regulate was regarded as a unit. In regulating commerce with foreign nations, the power of Congress does not stop at the jurisdictional lines of the several States. "If a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State." Similarly, the court reasoned that commerce "among the States" cannot stop at the external boundary of each State. "Commerce among the States must of necessity be commerce with the States." In short, while expressly disclaiming that Congress had the power to regulate the internal commerce of a State, the court asserted the complete control of Congress over inter-state commerce so far as navigation was concerned. The deeper significance of this interpretation of the commerce clause appeared only when railroads began to span the continent and the jurisdictional lines of States were crossed and re-crossed by an ever-increasing volume of trade.
Twenty-five years had wrought a vast change in the position of the national judiciary in the American constitutional system. "It is now seen on every hand," wrote Attorney-General Wirt, urging the appointment of Chancellor Kent to a vacancy on the Supreme Court bench, "that the functions to be performed by the Supreme Court of the United States are among the most difficult and perilous which are to be performed under the Constitution. They demand the loftiest range of talents and learning and a soul of Roman purity and firmness. The questions which come before them frequently involve the fate of the Constitution, the happiness of the whole Nation, and even its peace as it concerns other nations." In the light of the decisions reviewed, the nationalizing tendency of the federal judiciary is unmistakable. But a constitutional reaction had set in; and even while John Marshall was setting forth the doctrine of national sovereignty in its most uncompromising form, John C. Calhoun in the quiet of his estate in South Carolina was elaborating a defense of state rights on premises which the great Chief Justice had combated for a quarter of a century.
BIBLIOGRAPHICAL NOTE