There is no more engaging figure in American history, none more entirely free from disfiguring idiosyncrasy, than the son of Thomas Marshall.
[CHAPTER IX]
Epilogue
In the brief period of twenty-seven months following the death of Marshall the Supreme Court received a new Chief Justice and five new Associate Justices. The effect of this change in personnel upon the doctrine of the Court soon became manifest. In the eleventh volume of Peters’s Reports, the first issued while Roger B. Taney was Chief Justice, are three decisions of constitutional cases sustaining state laws which on earlier argument Marshall had assessed as unconstitutional. The first of these decisions gave what was designated “the complete, unqualified, and exclusive” power of the State to regulate its “internal police” the right of way over the “commerce clause” ¹; the second practically nullified the constitutional prohibition against “bills of credit” in deference to the same high prerogative ²; the third curtailed the operation of the “obligation of contracts” clause as a protection of public grants. ³ Story, voicing “an earnest desire to vindicate his [Marshall’s] memory from the imputation of rashness,” filed passionate and unavailing dissents. With difficulty he was dissuaded from resigning from a tribunal whose days of influence he thought gone by. 4 During the same year Justice Henry Baldwin, another of Marshall’s friends and associates, published his View of the Constitution, in which he rendered high praise to the departed Chief Justice’s qualifications as expounder of the Constitution. “No commentator,” he wrote, “ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language.… He never brought into action the powers of his mighty mind to find some meaning in plain words … above the comprehension of ordinary minds.… He knew the framers of the Constitution, who were his compatriots,” he was himself the historian of its framing, wherefore, as its expositor, “he knew its objects, its intentions.” Yet in the face of these admissions, Baldwin rejects Marshall’s theory of the origin of the Constitution and the corollary doctrine of liberal construction. “The history and spirit of the times,” he wrote, “admonish us that new versions of the Constitution will be promulgated to meet the varying course of political events or aspirations of power.”
¹ Milton vs. New York, 11 Peters, 102.
² Briscoe vs. Bank of Kentucky, 11 Peters, 257.
³ Charles River Bridge Company vs. Warren Bridge Company, 11 Peters, 420.
4 He wrote Justice McLean, May 10, 1837: “There will not, I fear, even in our day, be any case in which a law of a State or of Congress will be declared unconstitutional; for the old constitutional doctrines are fast fading away.” Life and Letters of Joseph Story, vol. II, p. 272; see also p. 270, for Chancellor Kent’s unfavorable reaction to these decisions.
But the radical impulse soon spent itself. Chief Justice Taney himself was a good deal of a conservative. While he regarded the Supreme Court rather as an umpire between two sovereignties than as an organ of the National Government for the vigorous assertion of its powers, which was Marshall’s point of view, Taney was not at all disposed to disturb the law as it had been declared by his predecessor in binding decisions. Then, too, the development of railroading and the beginning of immigration from Europe on a large scale reawakened the interest of a great part of the nation in keeping intercourse between the States untrammeled by local selfishness; and in 1851 the Court, heeding the spirit of compromise of the day, decisively accepted for the most important category of cases Marshall’s principle of the exclusive control of interstate and foreign commerce by Congress. ¹
¹ Cooley vs. the Board of Wardens, 12 Howard, 299.
Still, until the eve of the Civil War, the theory of the Constitution held by the great body of the people, North as well as South, was that it was a compact of States. Then in December, 1860, South Carolina announced her secession from the Union. Buchanan’s message of the same month performed the twofold service of refuting secession on State Rights principles and of demonstrating, albeit unwittingly, how impossible it was practically to combat the movement on the same principles. Lincoln brought the North back to Marshall’s position when he remarked in his Inaugural Address: “Continue to execute all the express provisions of our National Constitution, and the Union will endure forever.”