Acts of State Legislatures Declared Unconstitutional.—Had Marshall stopped with annulling an act of Congress, he would have heard less criticism from Republican quarters; but, with the same firmness, he set aside acts of state legislatures as well, whenever, in his opinion, they violated the federal Constitution. In 1810, in the case of Fletcher vs. Peck, he annulled an act of the Georgia legislature, informing the state that it was not sovereign, but "a part of a large empire, ... a member of the American union; and that union has a constitution ... which imposes limits to the legislatures of the several states." In the case of McCulloch vs. Maryland, decided in 1819, he declared void an act of the Maryland legislature designed to paralyze the branches of the United States Bank established in that state. In the same year, in the still more memorable Dartmouth College case, he annulled an act of the New Hampshire legislature which infringed upon the charter received by the college from King George long before. That charter, he declared, was a contract between the state and the college, which the legislature under the federal Constitution could not impair. Two years later he stirred the wrath of Virginia by summoning her to the bar of the Supreme Court to answer in a case in which the validity of one of her laws was involved and then justified his action in a powerful opinion rendered in the case of Cohens vs. Virginia.
All these decisions aroused the legislatures of the states. They passed sheaves of resolutions protesting and condemning; but Marshall never turned and never stayed. The Constitution of the United States, he fairly thundered at them, is the supreme law of the land; the Supreme Court is the proper tribunal to pass finally upon the validity of the laws of the states; and "those sovereignties," far from possessing the right of review and nullification, are irrevocably bound by the decisions of that Court. This was strong medicine for the authors of the Kentucky and Virginia Resolutions and for the members of the Hartford convention; but they had to take it.
The Doctrine of Implied Powers.—While restraining Congress in the Marbury case and the state legislatures in a score of cases, Marshall also laid the judicial foundation for a broad and liberal view of the Constitution as opposed to narrow and strict construction. In McCulloch vs. Maryland, he construed generously the words "necessary and proper" in such a way as to confer upon Congress a wide range of "implied powers" in addition to their express powers. That case involved, among other things, the question whether the act establishing the second United States Bank was authorized by the Constitution. Marshall answered in the affirmative. Congress, ran his reasoning, has large powers over taxation and the currency; a bank is of appropriate use in the exercise of these enumerated powers; and therefore, though not absolutely necessary, a bank is entirely proper and constitutional. "With respect to the means by which the powers that the Constitution confers are to be carried into execution," he said, Congress must be allowed the discretion which "will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." In short, the Constitution of the United States is not a strait jacket but a flexible instrument vesting in Congress the powers necessary to meet national problems as they arise. In delivering this opinion Marshall used language almost identical with that employed by Lincoln when, standing on the battle field of a war waged to preserve the nation, he said that "a government of the people, by the people, for the people shall not perish from the earth."
Summary of the Union and National Politics
During the strenuous period between the establishment of American independence and the advent of Jacksonian democracy the great American experiment was under the direction of the men who had launched it. All the Presidents in that period, except John Quincy Adams, had taken part in the Revolution. James Madison, the chief author of the Constitution, lived until 1836. This age, therefore, was the "age of the fathers." It saw the threatened ruin of the country under the Articles of Confederation, the formation of the Constitution, the rise of political parties, the growth of the West, the second war with England, and the apparent triumph of the national spirit over sectionalism.
The new republic had hardly been started in 1783 before its troubles began. The government could not raise money to pay its debts or running expenses; it could not protect American commerce and manufactures against European competition; it could not stop the continual issues of paper money by the states; it could not intervene to put down domestic uprisings that threatened the existence of the state governments. Without money, without an army, without courts of law, the union under the Articles of Confederation was drifting into dissolution. Patriots, who had risked their lives for independence, began to talk of monarchy again. Washington, Hamilton, and Madison insisted that a new constitution alone could save America from disaster.
By dint of much labor the friends of a new form of government induced the Congress to call a national convention to take into account the state of America. In May, 1787, it assembled at Philadelphia and for months it debated and wrangled over plans for a constitution. The small states clamored for equal rights in the union. The large states vowed that they would never grant it. A spirit of conciliation, fair play, and compromise saved the convention from breaking up. In addition, there were jealousies between the planting states and the commercial states. Here, too, compromises had to be worked out. Some of the delegates feared the growth of democracy and others cherished it. These factions also had to be placated. At last a plan of government was drafted—the Constitution of the United States—and submitted to the states for approval. Only after a long and acrimonious debate did enough states ratify the instrument to put it into effect. On April 30, 1789, George Washington was inaugurated first President.
The new government proceeded to fund the old debt of the nation, assume the debts of the states, found a national bank, lay heavy taxes to pay the bills, and enact laws protecting American industry and commerce. Hamilton led the way, but he had not gone far before he encountered opposition. He found a formidable antagonist in Jefferson. In time two political parties appeared full armed upon the scene: the Federalists and the Republicans. For ten years they filled the country with political debate. In 1800 the Federalists were utterly vanquished by the Republicans with Jefferson in the lead.
By their proclamations of faith the Republicans favored the states rather than the new national government, but in practice they added immensely to the prestige and power of the nation. They purchased Louisiana from France, they waged a war for commercial independence against England, they created a second United States Bank, they enacted the protective tariff of 1816, they declared that Congress had power to abolish slavery north of the Missouri Compromise line, and they spread the shield of the Monroe Doctrine between the Western Hemisphere and Europe.
Still America was a part of European civilization. Currents of opinion flowed to and fro across the Atlantic. Friends of popular government in Europe looked to America as the great exemplar of their ideals. Events in Europe reacted upon thought in the United States. The French Revolution exerted a profound influence on the course of political debate. While it was in the stage of mere reform all Americans favored it. When the king was executed and a radical democracy set up, American opinion was divided. When France fell under the military dominion of Napoleon and preyed upon American commerce, the United States made ready for war.