Pinkney closed on the 3d of March, and on the 6th Marshall handed down his most famous opinion. He condensed Pinkney’s three-day argument into a pamphlet which may be easily read by the instructed layman in half an hour, for, as is invariably the case with Marshall, his condensation made for greater clarity. In this opinion he also gives evidence, in their highest form, of his other notable qualities as a judicial stylist: his “tiger instinct for the jugular vein”; his rigorous pursuit of logical consequences; his power of stating a case, wherein he is rivaled only by Mansfield; his scorn of the qualifying “but’s,” “if’s,” and “though’s”; the pith and balance of his phrasing, a reminiscence of his early days with Pope; the developing momentum of his argument; above all, his audacious use of the obiter dictum. Marshall’s later opinion in Gibbons vs. Ogden is, it is true, in some respects a greater intellectual performance, but it does not equal this earlier opinion in those qualities of form which attract the amateur and stir the admiration of posterity.
At the very outset of his argument in the Bank case Marshall singled out the question the answer to which must control all interpretation of the Constitution: Was the Constitution, as contended by counsel for Maryland, “an act of sovereign and independent States” whose political interests must be jealously safeguarded in its construction, or, was it an emanation from the American people and designed for their benefit? Marshall answered that the Constitution, by its own declaration, was “ordained and established” in the name of the people, “in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and their posterity.” Nor did he consider the argument “that the people had already surrendered all their powers to the State Sovereignties and had nothing more to give,” a persuasive one, for “surely, the question whether they may resume and modify the power granted to the government does not remain to be settled in this country. Much more might the legitimacy of the General Government be doubted, had it been created by the States. The powers delegated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by them.” “The Government of the Union, then,” Marshall proceeded, “is emphatically … a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised on them, and for their benefit.” And what was the nature of this Government? “If any one proposition could command the universal assent of mankind we might expect it would be this: that the government of the Union, though limited in its powers, is supreme within the sphere of its action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all and acts for all.” However the question had not been left to reason. “The people have in express terms decided it by saying: ‘This Constitution and the laws of the United States which shall be made in pursuance thereof … shall be the supreme Law of the Land.’”
But a Government which is supreme must have the right to choose the means by which to make its supremacy effective; and indeed, at this point again the Constitution comes to the aid of reason by declaring specifically that Congress may make all laws “necessary and proper” for carrying into execution any of the powers of the General Government. Counsel for Maryland would read this clause as limiting the right which it recognized to the choice only of such means of execution as are indispensable; they would treat the word “necessary” as controlling the clause and to this they would affix the word “absolutely.” “Such is the character of human language,” rejoins the Chief Justice, “that no word conveys to the mind in all situations, one single definite idea,” and the word “necessary,” “like others, is used in various senses,” so that its context becomes most material in determining its significance.
And what is its context on this occasion? “The subject is the execution of those great powers on which the welfare of a nation essentially depends.” The provision occurs “in a Constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs.” The purpose of the clause therefore is not to impair the right of Congress “to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the Government,” but rather “to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble.… Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the Constitution, are constitutional.”
But was the Act of Maryland which taxed the Bank in conflict with the Act of Congress which established it? If so, must the State yield to Congress? In approaching this question Marshall again laid the basis for as sweeping a decision as possible. The terms in which the Maryland statute was couched indicated clearly that it was directed specifically against the Bank, and it might easily have been set aside on that ground. But Marshall went much further and laid down the principle that the instrumentalities of the National Government are never subject to taxation by the States in any form whatsoever, and for two reasons. In the first place, “those means are not given by the people of a particular State … but by the people of all the States. They are given by all for the benefit of all,” and owe their presence in the State not to the State’s permission but to a higher authority. The State of Maryland therefore never had the power to tax the Bank in the first place. Yet waiving this theory, there was, in the second place, flat incompatibility between the Act of Maryland and the Act of Congress, not simply because of the specific operation of the former, but rather because of the implied claim which it made for state authority. “That the power to tax involves the power to destroy,” Marshall continued; “that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures is declared to be supreme over that which exerts the control, are propositions not to be denied.” Nor indeed is the sovereignty of the State confined to taxation. “That is not the only mode in which it might be displayed. The question is in truth, a question of supremacy, and if the right of the States to tax the means employed by the General Government be conceded, the declaration that the Constitution and the laws made in pursuance thereof shall be supreme law of the land, is empty and unmeaning declamation.… We are unanimously of opinion,” concluded the Chief Justice, “that the law … of Maryland, imposing a tax on the Bank of the United States is unconstitutional and void.”
Five years later, in the case of Gibbons vs. Ogden, ¹ known to contemporaries as the “Steamboat case,” Marshall received the opportunity to apply his principles of constitutional construction to the power of Congress to regulate “commerce among the States.” For a quarter of a century Robert R. Livingston and Robert Fulton and their successors had enjoyed from the Legislature of New York a grant of the exclusive right to run steamboats on the waters of the State, and in this case one of their licensees, Ogden, was seeking to prevent Gibbons, who had steamers in the coasting trade under an Act of Congress, from operating them on the Hudson in trade between points in New York and New Jersey. A circumstance which made the case the more critical was that New Jersey and Connecticut had each passed retaliatory statutes excluding from their waters any vessel licensed under the Fulton-Livingston monopoly. The condition of interstate commercial warfare which thus threatened was not unlike that which had originally operated so potently to bring about the Constitution.
The case of Gibbons vs. Ogden was argued in the early days of February, 1824, with Attorney-General Wirt and Daniel Webster against the grant, while two famous New York lawyers of the day, Thomas Addis Emmet, brother of the Irish patriot, and Thomas J. Oakley, acted as Ogden’s counsel. The arguments have the importance necessarily attaching to a careful examination of a novel legal question of the first magnitude by learned and acute minds, but some of the claims that have been made for these arguments, and especially for Webster’s effort, hardly sustain investigation. Webster, never in any case apt to regard his own performance overcritically, seems in later years to have been persuaded that the Chief Justice’s opinion “followed closely the track” of his argument on this occasion; and it is true that Marshall expressed sympathy with Webster’s contention that Congress may regulate as truly by inaction as by action, since inaction may indicate its wish that the matter go unregulated; but the Chief Justice did not explicitly adopt this idea, and the major part of his opinion was a running refutation of Emmet’s argument, which in turn was only an elaboration of Chancellor Kent’s opinion upon the same subject in the New York courts. ¹ In other words, this was one of those cases in which Marshall’s indebtedness to counsel was far less for ideas than for the stimulation which his own powers always received from discussion; and the result is his profoundest, most statesmanlike opinion, from whose doctrines the Court has at times deviated, but only to return to them, until today it is more nearly than ever before the established law on the many points covered by its dicta.
¹ See Livingston vs. Van Ingen, 9 Johnson, 807 (1812); also Kent’s Commentaries, I, 432-38.
Marshall pronounced the Fulton-Livingston monopoly inoperative so far as it concerned vessels enrolled under the Act of Congress to engage in the coasting trade; but in arriving at this very simple result his opinion takes the broadest possible range. At the very outset Marshall flatly contradicts Kent’s proposition that the powers of the General Government, as representing a grant by sovereignties, must be strictly construed. The Constitution, says he, “contains an enumeration of powers expressly granted by the people to their government,” and there is not a word in it which lends any countenance to the idea that these powers should be strictly interpreted. As men whose intentions required no concealment, those who framed and adopted the Constitution “must be understood to have employed words in their natural sense and to have intended what they said”; but if, from the inherent imperfection of language, doubts were at any time to arise “respecting the extent of any given power,” then the known purposes of the instrument should control the construction put on its phraseology. “The grant does not convey power which might be beneficial to the grantor if retained by himself … but is an investment of power for the general advantage in the hands of agents selected for the purpose, which power can never be exercised by the people themselves, but must be placed in the hands of agents or remain dormant.” In no other of his opinions did Marshall so clearly bring out the logical connection between the principle of liberal construction of the Constitution and the doctrine that it is an ordinance of the American people.