The reasoning is mainly that of Hamilton, in his short essay of a few years before in the “Federalist.” The short and dry treatment of the subject, as being one of no real difficulty, is in sharp contrast with the protracted reasoning of McCulloch v. Maryland, Cohens v. Virginia, and other great cases; and this treatment is much to be regretted. Absolutely settled as the general doctrine is to-day, and sound as it is, when regarded as a doctrine for the descendants of British colonists, there are grave and far-reaching considerations—such, too, as affect to-day the proper administration of this extremely important power—which are not touched by Marshall, and which must have commanded his attention if the subject had been deeply considered and fully expounded according to his later method. His reasoning does not answer the difficulties that troubled Swift, afterwards chief justice of Connecticut, and Gibson, afterwards chief justice of Pennsylvania, and many other strong, learned, and thoughtful men; not to mention Jefferson’s familiar and often ill-digested objections.

It assumes as an essential feature of a written constitution what does not exist in any one of the written constitutions of Europe. It does not remark the grave distinction between the power of disregarding the act of a coördinate department, and the action of a federal court in dealing thus with the legislation of the local States; a distinction important in itself, and observed under the written constitutions of Europe, which, as I have said, allow this power in the last sort of case, while denying it in the other.

Had Marshall dealt with this subject after the fashion of his greatest opinions he must also have considered and passed upon certain serious suggestions arising out of the arrangements of our own constitutions and the exigencies of the different departments. All the departments, and not merely the judges, are sworn to support the Constitution. All are bound to decide for themselves, in the first instance, what this instrument requires of them. None can have help from the courts unless, in course of time, some litigated case should arise; and of some questions it is true that they never can arise in the way of litigation. What was Andrew Johnson to do when the Reconstruction Acts of 1867 had been passed over his veto by the constitutional majority, while his veto had gone on the express ground, still held by him, that they were unconstitutional? He had sworn to support the Constitution. Should he execute an enactment which was contrary to the Constitution, and so void? Or should he say, as he did say to the court, through his Attorney-General, that “from the moment [these laws] were passed over his veto, there was but one duty, in his estimation, resting upon him, and that was faithfully to carry out and execute these laws”?[36] And why is he to say this?

Again, what is the House of Representatives to do when a treaty, duly made and ratified by the constitutional authority, namely, the President and Senate, comes before it for an appropriation of money to carry it out? Has the House, under these circumstances, anything to do with the question of constitutionality? If it thinks the treaty unconstitutional, and so void, can it vote to carry it out? If it can, how is this justified?

Is the situation necessarily different when a court is asked to enforce a legislative act? The courts are not strangers to the case of political questions, where they must refuse to interfere with the acts of the other departments,—as in the case relating to Andrew Johnson just referred to; and in dealing with what are construed to be merely directory provisions of the Constitution; and with the cases, well approved in the Supreme Court of the United States, where courts refuse to consider whether provisions of a constitution have been complied with, which require certain formalities in passing laws,—accepting as final the certificate of the officers of the political departments. A question, passed upon by those departments, is thus refused any discussion in the judicial forum, on the ground, to quote the language of the Supreme Court, that “the respect due to coequal and independent departments requires the judicial department to act upon this assurance.”

So far as any necessary conclusion is concerned, it might fairly have been said, with us, as it is said in Europe, that the real question in all these cases is not whether the act is constitutional, but whether its constitutionality can properly be brought in question before a given tribunal. Could Marshall have had to deal with this great question, in answer to Chief Justice Gibson’s powerful opinion in Eakin v. Raub, in 1825,[37] instead of deciding it without being helped or hindered by any adverse argument at all, as he did, we should have had a far higher exhibition of his powers than the case now affords.[38]

[CHAPTER V]
THE WORKING OF OUR SYSTEM OF CONSTITUTIONAL LAW

I have drawn attention to the immense service that Chief Justice Marshall rendered to his country in the field of constitutional law, and have considered a few of the cases. Since his time not twice the length of his term of thirty-four years has gone by, but more than five times the number of volumes that sufficed for the opinions of the Supreme Court during his period is required for those of his successors on the bench. Nor does even that proportion indicate the increase in the quantity of the court’s business which is referable to this particular part of the law. It has enormously increased. When one reflects upon the multitude, variety, and complexity of the questions relating to the regulation of interstate commerce, upon the portentous and ever increasing flood of litigation to which the Fourteenth Amendment has given rise; upon the new problems in business, government, and police which have come in with steam and electricity, and their ten thousand applications; upon the growth of corporations and of wealth, the changes of opinion on social questions, such as the relation of capital and labor, and upon the recent expansions of our control over great and distant islands,—we seem to be living in a different world from Marshall’s.

Under these new circumstances, what is happening in the region of constitutional law? Very serious things, indeed.