QUESTION

          Describe the ways in which Chief Justice John Marshall's rulings established precedents for national supremacy over states rights, defined the roles of the Supreme Court and Congress, and provided the constitutional foundation for the economic growth of the United States.

 

DOCUMENT A

            The validity of this rescinding act [by the Georgia legislature] ... might be well doubted, were Georgia a single sovereign power.  But Georgia cannot be viewed as a single unconnected, sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution.  She is a part of a large empire; she is a member of the American Union; and that Union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several

states, which none claim a right to pass.  The constitution of the United States declares that no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts...

            Since ... in fact, a grant is a contract executed, the obligation of which still continues, and since the constitution uses the general term contract ... it must be construed to comprehend the latter as well as the former...

            It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the state of Georgia was restrained, ... by the particular provisions of the constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.

Source:   Chief Justice Marshall delivered the decision in Fletcher v. Peck (1810).

 

DOCUMENT B

            In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States.  The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion.

            This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the constitution and laws of the respective States, and cannot be controlled by them...

            That the power to tax involves the power to destroy; 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...

            The Court has bestowed on this subject its most deliberate consideration.  The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional law enacted by Congress to carry into execution the powers vested in the general government.  This is, we think, the unavoidable consequence of that supremacy which the constitution has declared...

            ...the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void.

Source:   Chief Justice Marshall delivered the decision in McCulloch v. Maryland (1819).

 

DOCUMENT C

Mr. Jones, for the defendants in error, contended,... the constitution was formed and adopted, not by the people of the United States at large, but by the people of the respective States...  It is, therefore, a compact between the States, and all the papers which are not expressly relinquished by it, are reserved to the States... But what natural connection is there between the collection of taxes, and the incorporation of a company of bankers?...

The power of laying and collecting taxes implies the power of regulating the mode of assessment and collection, and of appointing revenue officers; but it does not imply the power of establishing a great banking corporation, branching out into every district of the country, and inundating it with a flood of paper money...

The creation of a sovereign legislature implies an authority to pass laws to execute its given powers.  This clause is nothing more than a declaration of the authority of Congress to make laws, to execute the powers expressly granted to it, and the other departments of the government.  But the laws which they are authorized to make, are to be such as are necessary and proper for this purpose... So far as the interest of the United States is concerned as partners of this company of bankers, so far as the corporation may be regarded as an executive officer of the government, acquiring real and personal property in trust for the use of the government, it may be asked, what right the United States have to acquire property of any kind, except at purchased by the consent of the legislature of the State...

The people never intended they should become bankers or traders of any description.  They meant to leave to the States the power of regulating the trade of banking...

            This bill is brought by the Cherokee Nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which as is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force...

            Is the Cherokee Nation a foreign state in the sense in which that term is used in the Constitution?...

Source:  Mr. Jones’ opinion on the case of McCulloch v. State of Maryland (1819) representing the minority view.

 

DOCUMENT D

            They have been uniformly treated as a state from the settlement of our country.  The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community.  Laws have been enacted in the sprit of these treaties.  The acts of our government plain recognize the Cherokee Nation as a state, and the courts are bound by those acts...

            They may more correctly, perhaps, be dominated domestic dependent nations.  They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases.  Meanwhile, they are in a stage of pupilage.  Their relation to the United States resembles that of a ward to his guardian...

            Be this as it may, the peculiar relations between the United States and the Indians occupying our territory are such that we should feel much difficulty in considering them as designated by the term foreign state were there no other part.  But we think that in construing them, considerable aid is furnished by that clause in the 8th Section of the Article, which empowers Congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Source:  Chief Justice Marshall delivered the decision for Cherokee Nation v. Georgia (1831).

 

DOCUMENT E

...The attorney for the missionaries sought to have this judgment enforced, but could not.  General Jackson was President, and would do nothing of the sort.  “Well: John Marshall has made his decision: now let him enforce it!” was his commentary on the matter.  So the missionaries languished years in prison, and the Cherokees were finally (1838) driven into exile, in defiance of the mandate of our highest judicial tribunal.  Georgia was permitted to violate the faith of solemn treaties and defy the adjunctions of our highest court.  South Carolina was put down in a similar attempt: for the will of Andrew Jackson, not the Constitution, was in those years “the supreme law of the land.

Source: Horace Greeley in The American Conflict quoted Jackson’s response to Chief Justice Marshall’s decision in Cherokee Nation v. Georgia (1831).  

 

DOCUMENT F

            ...The law of Georgia, which subjected to punishment all white persons residing within the limits of the Cherokee nation, and authorized their arrest within those limits, and their forcible removal therefrom, and their trial in a court of the State, was repugnant to the constitution, treaties, and laws of the United States...

            The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil... The very term “nation,” so generally applied to them, means “a people distinct from others.” The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among the powers who are capable of making treaties...

            The Cherokee nation, then, is a distinct community, occupying its own territory... in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of congress.  The whole intercourse between the United States and this nation is, by our constitution and laws, vested in the government of the United States...

            They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the Union.

Source:  Chief Justice Marshall delivered the decision in Worcester v. Georgia (1832). 

 

DOCUMENT G

            Mr. Marbury...since his commission was signed by the president, and signed by the Secretary of State, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was

t revocable; but vested in the officer of legal rights, which are protected by the laws of his country...

            To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right...

            The act to establish the judicial courts of the United States authorizes the Supreme Court “to issue writs of mandamus, in the cases warranted by the principles and usages of law, to any courts appointed, or person holding office under the authority the United States.”...

            The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore, absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign...

            The authority therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised...

            Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the constitution is void.  This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society.  It is not, therefore, to be lost sight of in the future of this subject...

            It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases must be of necessity expound and interpret that rule...

Source:  Chief Justice Marshall delivered the decision in Marbury v. Madison (1803). 

 

DOCUMENT H

            ...The powers of the Union, on the great subjects of war, peace, and commerce, and on many others, are in themselves limitations of the sovereignty of the states; but, in addition to these, the sovereignty of the states is surrendered, in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, no other power is conferred on Congress than a conservative power to maintain the principles established in the Constitution.  The maintenance of these principles in their purity is certainly among the great duties of the government.

            One of the instruments by which this duty may be peaceably performed is the Judicial Department.  It is authorized to decide all cases of every description arising under the Constitution or laws of the United States.  From this general grant of jurisdiction, no exception is made of those cases in which a state may be a party...

            The Constitution gave to every person having a claim upon a state a right to submit his case to the Court of the nation.  However unimportant his claim might be, however little the community might be interested in its decision, the framers of our Constitution thought it necessary, for the purposes of justice, to provide a tribunal as superior to influence as possible in which that claim might be decided.  The judicial power of every well-constituted government must be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution and laws...

            A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.  Its course cannot always be tranquil.  It is exposed to storms and tempests, and its framers must be unwise statesmen indeed if they have not provided it, so far as its nature will permit, with the means of self preservation from the perils it may be destined to encounter.  No government ought to be so defective in its organization as not to contain within itself the mean of securing the execution of its own laws against other dangers than those which occur every day.  Courts of Justice are the means most usually employed; and it is reasonable to expect that a government should repose on its own courts rather than on others…

Source:  Chief Justice Marshall delivered the decision in Cohens v. Virginia (1821).

 

DOCUMENT I

            ...You seem... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.  Our judges are as honest as other men, and not more so.

They have, with others, the same passions for party, for power, and the privilege of their corps.  Their maxim is “boni judicis est ampliare jurisdictionem,” and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.  The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots... When the legislative or executive junctionaries act unconstitutionally, they are responsible to the people in their elective capacity.  The exemption of the judges from that is quite dangerous enough.  I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power...

Source:    Thomas Jefferson wrote a letter to William Charles Jarvis on September 28, 1820.

 

DOCUMENT J

It can require no argument to prove that the circumstances of this case constitute a contract.  An application is made to the Crown for a charter to incorporate a religious and literary institution.  In the application it is stated that large contributions have been made for the object, which will be conferred on the corporation as soon as it shall be created…

…by restraining that power which produced it, the state legislatures were forbidden to pass any law impairing the obligation of contracts, that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself and that since the clause in the Constitution must in construction receive some limitation…

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.  Being the mere creature of law, it possess only those properties which the charter of its creation confers upon it, either expressly or as effect the object for which it was created…

…it appears that Dartmouth College is an eleemosynary* institution, incorporated for the purpose of perpetuating the application of the bounty of the donors to the specified objects of that bounty; that its trustees or governors were originally named by the founder and invested wit the power of perpetuating themselves; that they are not public officers, nor is it a civil institution, participating in the administration of government, but a charity school, or a seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation…

The opinion of the Court, after mature deliberation, is that this is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States.  This opinion appears to us to be equally supported by reason and by the former decisions of this Court…

A repeal of this charter at any time prior to the adoption of the present Constitution of the United States would have been contested only by the restrictions upon the legislature to be found in the constitution of the state.  But the Constitution of the United States has imposed this additional limitation, that the legislature of a state shall pass no act impairing the obligation of contracts…

 

*eleemosynary: of or dependant on charity; charitable.

Source:   Chief Justice John Marshall delivers his decision for Dartmouth v. Woodward (1819).

 

DOCUMENT K

The charter of 1769 created and established a corporation, to consist of twelve persons, and no more; to be called the “Trustees of Dartmouth College.”…The charter, or letters patent, then proceed to create such a corporation… to have perpetual existence, as such a corporation, and with power to hold a dispose of lands and goods, for the use of the college with all the ordinary powers of corporations…

            …the institution thus created and constituted had existed, uninterruptedly and useful, nearly fifty years, the legislature of New Hampshire passed the acts in question…

            If these acts are valid, the old corporation is abolished, and a new one created…It will be contended by the plaintiffs, that these acts are not valid…because they are repugnant…to the tenth section of the first article of the constitution of the United States.  The material words of that section are: “No states shall pass any bill of attainder, ex post facto, or law impairing the obligation of contracts.”…

            This court, then does not admit the doctrine that a legislature can repeal statutes creating, private corporations…And because charters of incorporation are of the nature of contracts, they cannot be altered or varied but by consent of the original parties…

            If the franchise may be at any time taken away, or impaired, the property, also may be taken away, or its use perverted…

Source:  Constitutional lawyer, Daniel Webster (1782-1852) defending Dartmouth College in Dartmouth College v. Woodward (1818). 

 

DOCUMENT L

The appellant contends that this decree is erroneous because the laws which purport to give the exclusive privilege it sustains are repugnant: first, to that clause in the Constitution which authorizes Congress to regulate commerce; second, to that which authorizes Congress to promote the progress of science and useful arts…

            All America understands, and has uniformly understood, the word commerce to comprehend navigation…

            The word used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within it meaning; and a power to regulate navigation is as expressly granted as if that term had been added to the word commerce…

            The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government…

            The commerce of the United States with foreign nations is that of the whole United Sates…

            If Congress has the power to regulate it, that power must be exercised whenever the subject exists.  If it exists within the states, if a foreign voyage may commerce or terminate at a port within a state, then the power of Congress may be exercised within a state…

            This court is of opinion that so much of the several laws of the state of New York as prohibits vessels, licensed according to the laws of the United States, from navigating the waters of the state of New York, by means of fire or steam, is repugnant to the said Constitution and void…

Source:  Chief Justice John Marshall delivers his opinion for Gibbons v. Ogden (1824). 

 

 

BIBLIOGRAPHY FOR DOCUMENTS USED

Books

Ohio State University: Department of History. Retrieving the American Past 1810-1860. Pearson Custom Publishing and the Ohio State University, 2002, p. 30-32.  (Doc. A)

Hofstadter, Richard. Great Issues in American History: Volume II, From the Revolution to Civil War, 1765-1865. Richard Hofstadter, 1958, p. 191-200.   (Doc. B)

Carlton, David C. Selected Historical Documents to Accompany America's History: Fourth Edition, Volume I: To 1877. Bedford/ St. Martin's Co., 2001. p. 204-206.   (Doc. C)

 Kurland, Philip B., and Gerhard Casper. Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law: Volume I. University Publications of America, 1978, p. 148-158 and p. 357-369.   (Doc. D)

 Greeley, Horace. The American Conflict. Hartford, O.D. Case & Co.; Chicago, G. & C.W. Sherwood, 1866, p. 106.   (Doc. E)

 Jefferson, Thomas. Jefferson's Letters., arranged by Willson Whitman. Eau Claire, Wis., E.M. Hale and Co., 194-?, p. 338-339.   (Doc. F)

 
Internet Sources

Hanna, Steve. "John Marshall Cases: Gibbons v. Ogden." http://ukans.edu/carrie/docs/texts/gibbons.htm (1995)   (Doc. G)

Welling, Prof. Dr. George. "A Hypertext on American History from the Colonial Period until Modern Times: The Marshall-Cases: McCulloch v. Maryland (1819)." http://odur.let.rug.nl/~usa/D/1801-1825/marshallcases/mar02.htm (2/16/2001)   (Doc. H)

Welling, Prof. Dr. George. "A Hypertext on American History from the Colonial Period until Modern Times: The Marshall-Cases: Cohens v. Virginia (1821)." http://odur.let.rug.nl/~usa/D/1801-1825/marshallcases/mar04.htm (7/16/1999)   (Doc. I)

Welling, Prof. Dr. George. "A Hypertext on American History from the Colonial Period until Modern Times: The Marshall-Cases: Dartmouth College v. Woodward (1819)." http://odur.let.rug.nl/~usa/D/1801-1825/marshallcases/mar05.htm (2/16/2001)   (Doc J)

Welling, Prof. Dr. George. "A Hypertext on American History from the Colonial Period until Modern Times: The Marshall-Cases: Cherokee Nation v. State of Georgia (1831)." http://odur.let.rug.nl/~usa/D/1801-1825/marshallcases/mar06.htm (7/16/1999)   (Doc. K)

Hofstadter, Richard. Great Issues in American History: Volume II, From the Revolution to Civil War, 1765-1865. Richard Hofstadter, 1958, p. 191-200   (Doc. L)

DBQ Question created by:

Blessy Rajan
Margaret Scotti
Maria Regina H. S.
Hartsdale, NY
2002