While the agitation in Congress against the Court was at its height, Marshall handed down his decision in Gibbons vs. Ogden, and shortly after, that in Osborn vs. United States Bank. ¹ In the latter case, which was initiated by the Bank, the plaintiff in error, who was Treasurer of the State of Ohio, brought forward Article XI of the Amendments to the Constitution as a bar to the action, but Marshall held that this Amendment did not prevent a state officer from being sued for acts done in excess of his rightful powers. He also reiterated and amplified the principles of M’Culloch vs. Maryland. Three years later he gave his opinions in Brown vs. Maryland and Ogden vs. Saunders. ² In the former Marshall’s opinion was dissented from by a single associate, but in the latter the Chief Justice found himself for the first and only time in his entire incumbency in the rôle of dissenter in a constitutional case. The decision of the majority, speaking through Justice Washington, laid down the principle that the obligation of a private executory contract cannot be said to be “impaired” in a constitutional sense by the adverse effect of legislative acts antedating the making of the contract; and thus the dangerous ambiguity of Sturges vs. Crowinshield was finally resolved in favor of the States.
¹ 9 Wheaton, 738.
² 12 Wheaton, 213.
In the course of the next few years the Court, speaking usually through the Chief Justice, decided several cases on principles favoring local interest, sometimes indeed curtailing the operation of previously established principles. For example, the Court held that, in the absence of specific legislation by Congress to the contrary, a State may erect a dam across navigable waters of the United States for local purposes ¹; that the mere grant of a charter to a corporation does not prevent the State from taxing such corporation on its franchises, notwithstanding that “the power to tax involves the power to destroy” ²; that the Federal Courts have no right to set a state enactment aside on the ground that it had divested vested rights, unless it had done so through impairing the obligation of contracts ³; that the first eight Amendments to the Constitution do not limit state power, but only Federal power 4; that decisions adverse to state laws must have the concurrence of a majority of the Court. 5
¹ Wilson vs. Blackbird Creek Marsh Company (1829), 2 Peters, 245.
² Providence Bank vs. Billings (1830), 4 Peters, 514.
³ Satterlee vs. Matthewson (1829), 2 Peters, 380; and Watson vs. Mercer (1834), 8 Peters, 110.
4 Barron vs. Baltimore (1833), 7 Peters, 243.
5 See in this connection the Chief Justice’s remarks in Briscoe vs. Bank of Kentucky, 8 Peters, 118.
Despite all these concessions which he made to the rising spirit of the times, Marshall found his last years to be among the most trying of his chief justiceship. Jackson, who was now President, felt himself the chosen organ of “the People’s will” and was not disposed to regard as binding anybody’s interpretation of the Constitution except his own. The West and Southwest, the pocket boroughs of the new Administration, were now deep in land speculation and clamorous for financial expedients which the Constitution banned. John Taylor of Caroline had just finished his task of defining the principles of constitutional construction which were requisite to convert the Union into a league of States and had laid his work at the feet of Calhoun. Taylor was a candid man and frankly owned the historical difficulties in the way of carrying out his purpose; but Calhoun’s less scrupulous dialectic swept aside every obstacle that stood in the way of attributing to the States the completest sovereignty.
In Craig vs. Missouri (1830) ¹ the Court was confronted with a case in which a State had sought to evade the prohibition of the Constitution against the emission of bills of credit by establishing loan offices with authority to issue loan certificates intended to circulate generally in dimensions of fifty cents to ten dollars and to be receivable for taxes. A plainer violation of the Constitution would be difficult to imagine. Yet Marshall’s decision setting aside the act was followed by a renewed effort to procure the repeal of Section XXV of the Judiciary Act. The discussion of the proposal threw into interesting contrast two points of view. The opponents of this section insisted upon regarding constitutional cases as controversies between the United States and the States in their corporate capacities; its advocates, on the other hand, treated the section as an indispensable safeguard of private rights. In the end, the latter point of view prevailed: the bill to repeal, which had come up in the House, was rejected by a vote of 138 to 51, and of the latter number all but six came from Southern States, and more than half of them from natives of Virginia.
Meantime the Supreme Court had become involved in controversy with Georgia on account of a series of acts which that State had passed extending its jurisdiction over the Cherokee Indians in violation of the national treaties with this tribe. In Corn Tassel’s case, the appellant from the Georgia court to the United States Supreme Court was hanged in defiance of a writ of error from the Court. In Cherokee Nation vs. Georgia, the Court itself held that it had no jurisdiction. Finally, in 1832, in Worcester vs. Georgia, ¹ the Court was confronted squarely with the question of the validity of the Georgia acts. The State put in no appearance, the acts were pronounced void, and the decision went unenforced. When Jackson was asked what effort the Executive Department would make to back up the Court’s mandate, he is reported to have said: “John Marshall has made his decision; now let him enforce it.”
Marshall began to see the Constitution and the Union crumbling before him. “I yield slowly and reluctantly to the conviction,” he wrote Story, late in 1832, “that our Constitution cannot last.… Our opinions [in the South] are incompatible with a united government even among ourselves. The Union has been prolonged this far by miracles.” A personal consideration sharpened his apprehension. He saw old age at hand and was determined “not to hazard the disgrace of continuing in office a mere inefficient pageant,” but at the same time he desired some guarantee of the character of the person who was to succeed him. At first he thought of remaining until after the election of 1832; but Jackson’s reëlection made him relinquish altogether the idea of resignation.