Another great opinion, of the same class, and also bitterly attacked, was given in the case of Cohens v. Virginia, in 1821. This case came up on a writ of error from a local court at Norfolk. Cohens had been convicted of selling lottery tickets there, contrary to the statute of Virginia. He had set up as a defense an act of Congress providing for drawing lotteries in the city of Washington, and insisted that this authorized his selling tickets in Virginia. When the case reached the Supreme Court of the United States, the counsel for the State first denied the jurisdiction of that court, on the ground, among others, that the Constitution allowed no such appeal from a state court, and that the Judiciary Act of 1789 was unconstitutional in purporting to authorize it. In an elaborate opinion by Marshall, one of his greatest efforts, these contentions were negatived. When afterwards, the case came to be argued on the merits, the decision below was sustained, on the ground that the act of Congress did not purport to authorize the sale of tickets in any State which forbade the sale of them.
Here again the court was unanimous; and it was composed of the same judges who decided McCulloch v. Maryland. But the reception of Cohens v. Virginia at the South was even worse than that accorded the other case. Judge Roane, of the Court of Appeals in Virginia, attacked the opinion anonymously in the newspapers, with what Marshall called “coarseness and malignity.” Jefferson, also, bitterly objected to it.
Of two other cases belonging in the same class of Marshall’s opinions, viz., Gibbons v. Ogden, in 1824, and Brown v. Maryland, in 1827, it is enough here to say that they deal with one of the most difficult and perplexed topics of constitutional law, namely, the coördination of the functions of the national and state governments, in regard to the power granted to Congress to regulate foreign and interstate commerce, a subject of great importance and difficulty, on which the decisions of the Supreme Court are now and long have been involved in much confusion and uncertainty. Gibbons v. Ogden brought into question the constitutionality of a law of New York granting to Fulton, the inventor, the sole right of navigating the waters of New York by steam. The grant had been sustained by Chancellor Kent and by the New York Court of Appeals; but these decisions were now overruled in a famous and powerful opinion. In two other cases on this subject, also of great importance, Marshall gave leading opinions. It may fairly be thought that his treatment of the general question involved in these cases, instructive as it was, was yet less fruitful and less far-seeing than in most of his other great cases.
He was now in a region pretty closely connected with the second class of cases, above named; a set of cases, where even so great a man as Marshall erred sometimes, from interpreting too literally and too narrowly the restraints upon the States. It was natural, in giving full scope to the authority of the general government, that he should be inclined to apply, with their fullest force and operation, these clauses of restraint and prohibition. His great service to the country and his own generation was that of planting the national government on the broadest and strongest foundations. That, as he rightly conceived, was the one chief necessity of his time. In doing this, when it came to considering the reach that must also be allowed to the States, and just how the coördination of the two systems should be worked out, probably no one man, no one court, no human wisdom was adequate, then, to mapping it all out. Time alone, and a long succession of men, after some ages of experience, might suffice for that. The wisdom of those who made the Constitution, as it has lately been said, was mainly shown “in the shortness and generality of its provisions, in its silence, and its abstinence from petty limitations.” But, as time went on, definitions and specifications had to be made and applied; silence, abstinence, generality, were no longer adequate. And in the class of cases, now referred to, great and far-reaching as were the results of Marshall’s labor, and unqualifiedly as they are often praised, one may perceive, as I venture to think, a less comprehensive and statesmanlike grasp of the problems and their essential conditions than are found in some other parts of his work.
And so, when the Chief Justice, in 1812, held, without argument, that a grant of land by a State, with a privilege of exemption from taxation, contained a contract against future taxation, protected, even in the hands of subsequent holders, by the constitutional provisions against impairing the obligation of contracts, something was done which would probably not be done to-day, if the question came up for the first time. Certainly the soundness of the doctrine has been frequently denied by judges of the Supreme court, and it has only survived through the device of construing all grants in the narrowest manner. “Yielding,” says the Court in a recent case, “to the doctrine that immunity from taxation may be granted, that point being already adjudged, it must be considered as a personal privilege, not extending beyond the immediate grantee, unless otherwise so declared in express terms.” And again the court has recently remarked on the “well-settled rule that exemptions from taxation are … not to be extended beyond the exact and express language used, construed strictissimi juris.”
Again, in Dartmouth College v. Woodward, in 1819, when it was held that a legislative grant of incorporation was a contract protected by the same clause of the Constitution, something was done from which the court was subsequently obliged to recede in an important degree. Acts of incorporation for the manufacture of beer, for carrying on slaughter-houses, for dealing in offal, and for conducting a lottery,—a reputable business in 1819, when the Dartmouth College case was decided,—such acts as these have been treated by the Supreme Court as not being thus protected. It is held that no legislative body can contract to part with the full power to provide for the health, morals, and safety of the community. Such things, it is said, are not the proper subject-matter of legislative contract,—a doctrine which it has been widely thought should, originally, have been applied to all acts of incorporation. “The State,” says a distinguished judge, and writer on constitutional law, in speaking of the Dartmouth College doctrine and its development, “was stripped, under this interpretation, of prerogatives that are commonly regarded as inseparable from sovereignty, and might have stood, like Lear, destitute before her offspring, had not the police power been dexterously declared paramount, and used as a means of rescinding improvident grants.”[34]
In the great bankruptcy cases of Sturgis v. Crowninshield and Ogden v. Saunders, where it was held, in 1819 and 1827, that the constitutional provision as to impairing the obligation of contracts forbade the State to enact an insolvency law which should discharge a person from liability on a contract made before the law; and then again that it did not forbid the same thing as touching a contract made after the law, Marshall, who gave the opinion in the first case, put it on a ground equally applicable to the second; and so, in the second case, gave a dissenting opinion. The obligation of the contract, he said, comes from the agreement of the party; it does not arise from the law of the State at the time it was made, entering into or operating on the contract. But this doctrine and this reasoning were justly disallowed.
Finally, in 1830, in Craig v. Missouri, Marshall gave the opinion that certain certificates issued by a State in return for deposits, and intended to circulate as money, were bills of credit; and as such forbidden by the Constitution. There were three dissenting opinions; and soon after Marshall’s death, a different doctrine was established by the court,—wisely it would seem,—and has ever since been maintained.[35]
Coming now to the third class of cases mentioned above, that which deals with the fundamental conceptions and theory of our American doctrine of constitutional law, Marbury v. Madison is the chief case. In speaking of that case I have purposely delayed until this point any reference to this aspect of it. While, historically, this part of it is what gives the case its chief importance, yet it occupies only about a quarter of the opinion.
In outline, the argument there presented is as follows: The question is whether a court can give effect to an unconstitutional act of the legislature. This question is answered, as having little difficulty, by referring to a few “principles long and well established.” (1) The people, in establishing a written constitution and limiting the powers of the legislature, intend to control it; else the legislature could change the constitution by an ordinary act. (2) If a superior law is not thus changeable, then an unconstitutional act is not law. This theory, it is added, is essentially attached to a written constitution. (3) If the act is void, it cannot bind the court. The court has to say what the law is, and in saying this must judge between the Constitution and the act. Otherwise, a void act would be obligatory; and this would be saying that constitutional limits upon legislation may be transgressed by the legislature at pleasure, and thus these limits would be reduced to nothing. (4) The language of the Federal instrument gives judicial power in “cases arising under the Constitution.” Judges are thus in terms referred to the Constitution. They are sworn to support it and cannot violate it. And so, it is said, in conclusion, the peculiar phraseology of the instrument confirms what is supposed to be essential to all written constitutions, that a law repugnant to it is void, and that the courts, as well as other departments, are bound by the constitution.