In the September 2009 issue of Liberty (in a book review entitled "Liberty and Literacy"), Stephen Cox — ever the analytical wordsmith — extols the content and form of Thomas Jefferson’s brilliant first sentence, second paragraph of the Declaration of Independence:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
Focusing on the form, he paraphrases the passage into run-of-the-mill prose and berates the reader who can’t tell the difference. He says that “language is not just a method of communicating… (It) is a way of creating pleasure,” and that if one doesn’t see that, then one is illiterate, knows nothing about writing and should — go away.
Braving Cox’s acid pen and his usually faultless reasoning, I took issue with his (and nearly everyone else’s) assessment of Jefferson’s passage. I responded in Liberty in November 2009:
“Lofty words. Pure poetry, perhaps — but devoid of any connection to reality. It is not self-evident that '“all men are created equal,' or 'that they are endowed by their Creator with certain unalienable rights,' or 'that among those are Life, Liberty, and the pursuit of Happiness.' One need only look at the history of the Bill of Rights and its ignored 9th Amendment to realize that the only rights citizens retain — much less 'are endowed with' — are those that they explicitly claw from their government; Life, Liberty and the pursuit of Happiness not included. Perhaps they were too 'self-evident'?
“It took nearly 100 years for those three self-evident rights to be included in the Constitution under the 14th Amendment as 'life, liberty, or property.' And even now they’re not secure. 'Pursuit of Happiness' was an elegant albeit vague and meaningless euphemism for property, which Jefferson was loath to include, fearing it might justify slavery. Unfortunately, the omission later caused such an erosion of property rights that there is now popular clamor for a property rights amendment to the Constitution (in spite of the 14th Amendment).
The government established under the Articles of Confederation was about as powerful and effective as today’s United Nations.
"The slippery nature of even enumerated rights — much less 'self-evidently endowed' rights — comes to mind in Justice Oliver Wendell Holmes’ dissent in the Lochner v. New York case. His particularly perverse interpretation of the 14th Amendment, using original intent, mind you, found that since the amendment was originally written to protect the rights of freed slaves, it could not apply to workers and management deciding the length of their workday. But then, he was famous for declaring that he could decide any case, any way, using any principle. (He’d later go on to find that eugenics, as government policy, was justified under the Constitution.)
“As populist rabble-rousing, Jefferson’s clause is second to none, and in that sense, it is great writing. However, as a description of reality or a recipe for government, it is a complete failure. Therefore I must counterintuitively conclude, being a firm believer in the dictum that form follows function, that the clause in question is neither effective nor elegant writing.”
Only later, after reading R. Kent Newmyer’s legal biography of John Marshall, the fourth Chief Justice of the United States, John Marshall and the Heroic Age of the Supreme Court, did I that realize that I was not alone in being skeptical of "natural rights" and, instead, advocating enumerated rights.
The controversy over enumerated versus self-evident rights began immediately after the Constitutional Convention disbanded and each state was asked to ratify the new document. Contrary to what today’s tea partiers, radical states’ righters, and some libertarians and conservatives believe, the Constitution was created to increase the power of the federal government, both absolutely and over the states. Under the previous arrangement — the Articles of Confederation — the federal government was dependent on the whims of the states — individually, mind you — for voluntary revenues and a host of other items. These constraints made defense of the new country a much tougher proposition — in raising an army and funding a war. In today’s terms, the government established under the Articles of Confederation was about as powerful and effective as today’s United Nations.
To John Marshall, Alexander Hamilton, and a coterie of other patriots who would later coalesce into the Federalist Party, this arrangement spelled ruin for the new country — not only because the United States might not be able to defend itself adequately, but also because it wouldn’t be able to pay its bills dependably, obtain credit, or participate in the foreign exchange mechanisms necessary for international commerce.
Under the old dispensation, individual states were responsible for debts incurred during the Revolutionary War, and some were thinking of defaulting, either from irresponsibility or from spite toward some of the Brits who’d bankrolled them. As Hamilton observed about the debt and its consolidation under federal responsibility, it was "the price of liberty." Additionally, each state (as well as private entities) could issue its own currency. Without the full faith and credit of a central government, the new country would be unable to participate effectively in international trade — a serious impediment under the new, capitalist world order.
Without the full faith and credit of a central government, the new country would be unable to participate effectively in international trade — a serious impediment under the new, capitalist world order.
Most delegates to the Constitutional Convention appreciated this. Yet, because the new Constitution increased the federal government’s power, some delegates (anti-federalists, later to coalesce around Thomas Jefferson and his Democratic-Republican Party), fearing tyranny, fought for a bill of enumerated rights, limiting the federal government. The idea that such a bill would be forthcoming may have beena make-or-break point for ratification.
Counterintuitively, people opposed to including a Bill of Rights (many of them Federalists) replied that it was impossible to enumerate all the self-evident rights that the people retained; that enumerating a few rights would guarantee only those; and that the unenumerated rights would forever be lost (think of the right "to privacy," later discovered in penumbras and emanations, together with the right "to earn an honest living," "to marry a person of the same sex," "to marry more than one person," "to cohabitate," "to fight for your country in spite of being gay," "to suicide," "to ingest any substance," "to enter into contracts," "to make obscene profits," etc. — you get the point).
As we all know, the Jeffersonian anti-Federalists won the battle for the Bill of Rights, mostly because the Federalists’ arguments — vague and hypothetical — did not have the immediacy of the fear of tyranny. The odd hitch — to a modern audience — was that the Bill of Rights did not apply to state governments, only to the federal government. Massachusetts retained a state religion until 1830, and the Bill of Rights wasn’t interpreted to apply to the states until the passage of the Fourteenth Amendment after the Civil War.
In order to allay Federalists’ concerns, the Ninth Amendment to the Constitution stated: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Unfortunately, that language has become meaningless — as well it should, if examined critically.
Robert Bork, who failed to be confirmed to the Supreme Court because some senators thought him too conservative, both politically and judicially, has likened the Ninth Amendment to an inkblot. In The Tempting of America he argued that “while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot.” From the Left, Laurence Tribe has said that “the ninth amendment is not a source of rights as such.” The best defense of the Ninth comes from Randy Barnett, a libertarian constitutional scholar (and contributor to Liberty), who says that it “calls for a presumption of liberty.”
Marshall, in spite of his Federalism, understood the problem with the Ninth Amendment and advocated the enumeration of rights. He did not believe in natural rights endowed by a creator; he believed that we the people endow ourselves with rights based on expediency and tabulated as positive law. He was a nuts-and-bolts lawyer who believed that the best laws were those that required the least interpretation. Ironically (as we shall see), though he eschewed grandiose philosophical visions and paradigms, he is best known for defining the role of the Supreme Court in the new United States and establishing a rock-paper-scissors hierarchy among the three branches of government that remains the modern modus operandi.
Marshall was a nuts-and-bolts lawyer who believed that the best laws were those that required the least interpretation.
Marshall’s concern with rights was particularly personal. An admirer of John Locke, Marshall was obsessed with the sanctity of contracts to a degree that today might be considered excessively libertarian. He believed that the terms of a contract superseded statutory limitations. For example, in a minority opinion, he opined that bankruptcy laws could not relieve a debtor from a previous obligation. Likewise, he would have heartily supported the 1905 Lochner v. New York decision that overthrew a statute limiting the working hours of bakers as an infringement of the rights of employees and employers to negotiate their own contracts. He also believed that legislation was a contractual obligation of government to the citizenry. In Fletcher v. Peck (1810), Alexander Hamilton, representing a group of investors — including himself — argued that a Georgia state law authorizing a land sale was a contract, and that Georgia's Rescinding Act of 1796 invalidating the sale was unconstitutional under the contract clause of the constitution. Marshall agreed.
These perspectives had the curious effect of another rock-paper-scissors round robin: though Marshall was a strong advocate of the supremacy clause, the phrase in the Constitution stipulating that federal law trumps state law (a big damper on states’ rights), his view of contracts tends to elevate individuals above both state and federal law. But I digress — back to Marshall’s personal concern with rights.
Marshall and his family were speculators in lands west of the Appalachians. Like most libertarians and economists today, Marshall saw nothing wrong with speculation; in fact, he believed that speculators provided services essential to the opening of new tracts for settlement — subdivision, assessment of resources, initial price arbitrage, surveying into lots, market making, etc. The buying and selling of deeds required contracts, the details of which, he believed, were between the parties involved, and should be arrived at with minimal government interference.
But speculators, then as now, had a bad reputation among the substantial portion of the population that didn’t understand their function and thought they were making profits without effort. These folks, Thomas Jefferson prominently among them, believed in the ideal of a republic of small, yeomen farmers. Speculators were just an unnecessary — even an evil — obstacle to that ideal.
Jefferson and Marshall despised each other. Though the Democratic-Republican Jefferson managed to restore his friendship with Federalist John Adams, he could not stand fellow Virginian Marshall.
Marbury v. Madison
Though not the beginning of their feud, Marbury v. Madison — one of two of Marshall’s most famous decisions — best summarizes their intellectual conflict. It is the decision that established the power of the Supreme Court to overturn congressional legislation through the principle of judicial review, thereby elevating the Supreme Court to coequality with Congress and the Executive.
Judicial review, already a long-standing legal principle in other contexts, was a power not specifically granted to the newly-established Supreme Court. Marshall understood that without it, the Supreme Court could never properly function as one third of the triad it was designed to be, since an effective separation of powers required three equally potent branches of government. It is a complex and convoluted decision, tight in reasoning, and difficult to explain. I’ll give it a shot.
The case began amid the bitter political conflicts of the waning days of Adams’ administration. The (barely) peaceful transfer of power to the opposition was a landmark in the new nation’s development. Still, anti-Jefferson riots were expected in the capital.
In a bold attempt to curtail the new administration’s power, Adams nominated Marshall, his Secretary of State, as the new Chief Justice of the United States. The Federalist-controlled lame-duck Congress not only quickly confirmed him, it also passed a law authorizing the appointment of a number of justices of the peace to govern the District of Columbia in case the riots materialized. Adams immediately appointed 42 Federalist judges.
Jefferson was livid. As Newmyer says:
“Unfortunately for historians, there were no cameras to record the deliciously ironic moment on March 4, 1801, when the new chief justice administered the oath of office to the new president. With his hand on the Bible held by Marshall, Jefferson swore to uphold the Constitution Marshall was sure he was about to destroy…It was not coincidental that Marshall turned his back to the president during the ceremony. . . . Jefferson had already concluded that the federal judiciary had to be humbled and ‘the spirit of Marshallism’ eradicated.”
The (barely) peaceful transfer of power to the opposition was a landmark in the new nation’s development. Still, anti-Jefferson riots were expected in the capital.
The new appointments were duly signed and sealed but, ominously, not all of them were delivered by the Secretary of State (still John Marshall), whose job it was to finalize the procedure, but who had only had the last week of the Adams administration in which to comply. When James Madison, Jefferson’s newly appointed Secretary of State (and an author of the Constitution), assumed his duties on March 5 he discovered the remaining undelivered appointments.
Jefferson ordered Madison not to deliver the commissions. Enter William Marbury, one of the prospective justices appointed by Adams. He and three other denied appointees, petitioned the Supreme Court for a writ of mandamusdirected at Madison, in essence ordering him to comply.
Meanwhile, the new Democratic-Republican Congress repealed the legislation that authorized the appointments in the first place and, adding fuel to the fire, cancelled the 1802 Supreme Court term, Marshall’s first. The intervening period permitted Marshall and his colleagues to ponder the constitutionality of events, the dangers of challenging executive authority head-on by issuing the mandamus, and the formulation of strategy.
For two years, the Court’s powers, or lack thereof, had been debated in Congress and in the court of public opinion. The Court had even been a focus of Jefferson’s political agenda. Specifically, was the Supreme Court subservient to Congress or the Executive or both, or was it equal in stature and power? Marshall was looking for an opportunity to settle the debate, and Jefferson gave it to him when he blocked Adams’ judicial appointments.
The new Democratic-Republican Congress, adding fuel to the fire, cancelled the 1802 Supreme Court term.
In February 1803, the Court came out fighting, opening its term with Marbury v. Madison. Immediately, Jefferson — claiming executive privilege — insulted the Court by refusing to permit US counsel to appear or executive witnesses to be heard. And he continued to stonewall, micromanaging executive witnesses even when the Court established, after much technical to-ing and fro-ing, that it did indeed have jurisdiction in the case, and that it could go forward.
In what was to become his typical fashion, Marshall (with a unanimous Court), decided the case on narrow grounds: the rule of law. He stated that Marbury’s office was vested when President Adams signed his commission; that at that point — irrespective of mundane details — the operation of law began. Marshall, to Jefferson’s great irritation, virtually lectured the new president that he was not above the law.
So, where is the judicial review, the Court’s power to overturn congressional legislation, for which Marbury v. Madison is so well known? In the last six pages of the 26-page opinion, in which the court struck down section 13 of the Judiciary Act of 1789. Marshall's reasoning almost became the proverbial camel passing through the needle's eye.
In the Act, Congress had magnanimously granted the Supreme Court the right to issue mandamus writs, reasoning that, since the power wasn’t specifically granted by the Constitution — and the Court couldn’t very well function without it — it was necessary for the Court to have it.
Marshall disagreed on two major points. First and foremost, he declared that Congress — through simple legislation — could not change the Constitution, and that only the Supreme Court had the power to interpret it. Second, for a variety of reasons, Marshall decided that the Constitution already gave the Court the power to issue mandamus writs.
Confused? There is no doubt that Marshall was out to prove a point and — with some fancy footwork — had to weave a sinuous path to make it. Luckily (and some say, with Marshall’s prodding and collusion) circumstances, timing, allies, and even adversaries, all fell into place for him. Almost all aspects of the decision are still debated, even as to whether it was at all necessary; mainly because many commentators believe the Constitution already implicitly grants the power of judicial review to the Court. In Federalist No. 78, Hamilton opines that not only is judicial review a power of the Court, it is a duty. Not one delegate to the Constitutional Convention argued against the principle.
Jefferson — claiming executive privilege — insulted the Court by refusing to permit US counsel to appear or executive witnesses to be heard.
But critics claimed that the Marshall court had vastly overreached. Jefferson himself believed that the president (and the states) had the power to interpret the constitution, and he forever fulminated against the decision. Congress, however, was not troubled and took it in stride — which leads Newmyer to conclude that, “put simply, it was presidential power, not congressional authority, Marshall targeted.” The Supreme Court’s power of judicial review was extended over the states in 1816 in Martin v. Hunter’s Lessee,another Marshall decision.
Jefferson versus Marshall
John Marshall was the longest serving — and arguably the most important — chief justice. Serving from 1801 to 1835, he presided over the most formative decisions the new country faced. He helped to establish a balanced, effective, and more manageable government, and helped set the tone for the future sparring among the three branches of federal power. During his term, the Constitution became much more than a founding document — it became something closer to accepted law.
Today most of us perceive political parties as somewhere within the Left-Right continuum. It is difficult to see things in any other way: that’s how today’s politics play. But the Federalist versus Democratic-Republican divide was an entirely different one.
Although most people today associate Jefferson with individual rights and a fundamentalist view of the Constitution; and the Federalists with the advocacy of a strong central government, the distinctions are not so facile and clear-cut. For one, the Democratic-Republicans supported slavery, while the Federalists generally opposed it. These positions led the Jeffersonian tradition directly to the policies of Jackson, Calhoun, and, finally, Jefferson Davis; while the Federalist tradition led to Lincoln.
The irony here is that those who were most skeptical of the Constitution are the ones referred to as “strict constructionists,” while the Federalists are regarded as free-wheeling interpreters of its provisions.
The Federalists were the first to see and understand the failure of the Articles of Confederation, so they pushed for change. The anti-Federalists thought that the Articles could be tweaked for improvement and were skeptical about the whole constitutional enterprise. In the end, they accepted it reluctantly — and showed it. To them, “strict constructionism” meant that if the Constitution granted one the right to eat, the right to obtain food didn’t automatically follow. Or, if it granted the right to free political speech, the right of media accessibility for broadcasting that speech — since it wasn’t actually spelled out — didn’t exist. Such thinking, often imbued with deep resentment, led to muddled action, ambivalence, and, sometimes a reversal of roles — with the president himself leading the way.
Jefferson, expecting an immediate victory, ordered a squadron of ships to destroy the Muslim navies. The war dragged on for almost 15 years.
Jefferson’s cavalier attitude toward the Constitution was shown early in his presidency, with his 1801 attack on the Muslim state of Tripolitania on the Barbary Coast (Tunisia, Algeria, Morocco, and present day Libya) without a congressional declaration of war, which contemporary opinion believed he was constitutionally obligated to obtain. Several of the Barbary states had demanded tribute from American merchant ships in the Mediterranean. When the Americans declined, the Pasha of Tripoli captured several seamen and held them for ransom. Jefferson, expecting an immediate victory, ordered a squadron of ships to destroy the Muslim navies. The war dragged on for almost 15 years.
But it was the Louisiana Purchase — the constitutionality of which even Jefferson was skeptical about — that was really troublesome. For starters, the Constitution did not empower the federal government to acquire new territory without the universal consent of every state (as per Andy P. Antippas' view in his History of the Louisiana Purchase). Some of the articles of the Purchase Agreement were also in violation of the Constitution because they gave preferential tax treatment to some US ports over others; they violated citizenship protocol; and they violated the doctrine of the separation of powers between the president, Congress, and the judiciary.
As Antippas recounts:
“Jefferson and his fellow Republicans were 'strict constructionists.' i.e., they allegedly adhered to the letter of the Constitution and were strong proponents of 'state’s rights' and 'limited government;' however, Jefferson and most of his party members chose simply to ignore all the Constitutional issues as merely philosophical for the sake of expediency — Jefferson’s response to his critics was 'what is practicable must often control what is pure theory' — in other words, 'the end justifies the means.'"
Jefferson’s specious argument to his critics was that the federal government's power to purchase territory was inherent in its power to make treaties. The Senate bought that argument and ratified the Louisiana treaty.
In their individual approaches to personal liberty, Jefferson’s and Marshall’s actions speak volumes. As I’ve already mentioned, Marshall was fanatically laissez-faire, while Jefferson favored greater economic regulation for what he thought was the good of society. Specifically, Jefferson favored a society of agrarian smallholders and did not approve of speculators buying up western lands as soon as they were available — he wanted smallholders to get in on the action right away. He did not understand the redeeming socioeconomic value of speculators, abhorred their — in his view — unearned profits, and advocated restricting or eliminating these — again, to him — unnecessary middlemen, prominent among whom were Marshall and his family.
Both were Virginians and slaveholders, but their treatment of slaves differed markedly. Jefferson is known to have beaten his slaves; there is no evidence that Marshall ever did. In his will, Marshall wisely granted more liberty to his slaves than we might intuitively suppose today. He gave them two options upon his death: liberty, with severance pay, so they could set themselves up independently (or emigrate to Liberia); or continued servitude, in case the radical transition to liberty was more than they could handle. In 1781, near the end of the Revolutionary War, 23 of Jefferson’s slaves escaped to the British.
Marshall's and Jefferson's approaches to Native Americans were even more illuminating. Though Jefferson’s words spoke respectfully, even admiringly, of the noble savage, his policies began the trail of tears that would destroy cultures and result in the reservation system.
As soon as Louisiana was purchased, Jefferson embarked on a cold-blooded policy toward Native Americans. In a lengthy letter to William Henry Harrison, military governor of the Northwest Territory, he explained that the nation's policy "is to live in perpetual peace with the Indians, to cultivate their affectionate attachment from them by everything just and liberal which we can do for them within the bounds of reason." But he goes on to explain "our" policy (presumably his own, and that of the United States) on how to get rid of every independent tribe between the Atlantic states and the Mississippi, through assimilation, removal, or — if push came to shove — "shut(ting) our hand to crush them." Finally, in secret messages to his cabinet and Congress, Jefferson outlined a plan for the removal of all Native Americans east of the Mississippi to make sure that the land would never fall to the French or the British, who chronically supported the Indians in their disputes against the US.
Marshall, in contrast, did everything he could to prevent the confiscation of Indian land and the eviction of the Indians from Georgia, in a series of cases collectively known as the Cherokee Indian cases.
As a young man, while serving in the Virginia House of Delegates in 1784, Marshall supported a bill that encouraged intermarriage with Native Americans. Three years later, in the Indian slave case of Hannah v. Davis, he argued successfully that Virginia statute law prohibited the enslavement of Native Americans.
The Cherokee Indian cases, too long and complicated to detail here, came before the court in the early 1830’s, when Andrew Jackson was president. The final one, Cherokee Nation v. Georgia, turned on the supremacy clause. In a bald-faced land grab, Georgia had declared sovereignty over Cherokee lands. The Cherokees sued. The Marshall court decided that Indian affairs were the province of the federal government alone; therefore the Georgia statutes that claimed control over Indian lands were null and void. But neither Georgia nor Jackson — both strong states’ rights advocates — nor Congress supported Marshall’s decision. Jackson is reputed to have said, “John Marshall has made his decision, now let him enforce it.” Congress, meanwhile, had passed the Indian Removal Act of 1830, which Jackson heartily endorsed. It was a Pyrrhic victory that few Cherokees savored on their forced march along the "trail of tears and death" to Oklahoma.
McCulloch v. Maryland
Besides the fundamental issue of judicial review, another fundamental issue remained to be addressed in order to make the Constitution something closer to ultimate law, as opposed to simply a guiding, founding document: objective guidelines for practical interpretation. Other than the Federalist papers, which were not law, firm guidance about constitutional interpretation was lacking.
At one end of the spectrum was the strict fundamentalist approach (see examples already mentioned above), akin to religious fundamentalist interpretations of the Bible: virtually no interpretation. At the other extreme were freewheeling, almost poetic readings — complete with what today are called “penumbras and emanations.” With Holmesian effort, one could interpret anything, anywhere, in any way. This was not only impracticable law, but a recipe for tyranny. In 1819 Marshall got the opportunity — again, with some prodding and collusion on his part — to set the standards.
The constitution had given Congress the power “to coin money and regulate the value thereof.” Under that clause, the first Congress — with the approval of President Washington — chartered the first Bank of the United States, legitimized by its power to coin money. Though Jefferson opposed it, he left the bank in place. He and his political friends referred to it as "Hamilton’s bank." Being strict constructionists, they argued that it was Congress that had been empowered by the constitution to coin money, not the Bank. However, four years without the bank during the War of 1812 spoke eloquently about the value of its services. When a charter for a second Bank of the United States (the first charter ran for only 20 years) was introduced in 1816, it had the support of President Madison, who signed the bill into law. Only Virginia's congressional delegation voted (11 to 10) against the bank.
Though Jefferson’s words spoke respectfully, even admiringly, of the noble savage, his policies began the trail of tears that would destroy cultures and result in the reservation system.
Though the Constitution had empowered the federal government to coin money, it had not explicitly barred states from doing so. Virginia, a staunch states’ rights advocate, kept its Bank of Virginia, headquartered in Richmond. And there was one of the rubs: the branch of the Bank of the US stationed in Richmond was too much competition for the alternative, state banking system.
Exacerbating the dispute was the mismanagement of the Second Bank of the United States, which — shades of today’s crisis — had provided easy credit for a land boom in the south and west. When the bank called in its improvident loans to state banks — to cover its own debts, which it had improvidently incurred — the default of banking institutions swept like wildfire across the southern and western states.
Battle lines were drawn. The states moved against the national bank. Ohio, in the most radical reaction, outlawed the Bank of the United States, using the theory of “nullification," according to which states could cherry-pick federal laws, rejecting whichever they chose. Nullification had been around since 1798; it gained from the support of none other than Jefferson and Madison. (Though it must be admitted that when pressed about the constitutionality of nullification, Madison hedged and declared that it was an extraconstitutional option.) Taken to extremes, nullification implied the right to secede, with each state being judge of the constitutionality of its own cause; and, as Ohio later tried to do with McCulloch v. Maryland, the right to reject Supreme Court decisions. Though the Civil War and numerous Supreme Court decisions have hacked both the legs and arms from nullification, like the black knight in Monty Python’s Holy Grail it keeps coming back for one more round. Russell Pearce, an Arizona state senator, is sponsoring the latest nullification bill. Libertarians should reflect on the fact that nullification cuts both ways: it is at least as likely to be used to nullify as to uphold individual rights.
To cover its debts, Maryland passed a law taxing — in the most punitive and unconventional manner — the Bank of the United States. James McCulloch, head of the bank's Baltimore branch, refused to pay the tax. Maryland sued.
When the case finally reached the Supreme Court in 1819, Marshall found for McCulloch — less than a week after the conclusion of oral arguments, leading some to wonder whether he’d written the decision before hearing counsels’ arguments. As well he might. Not only was the case “arranged” (both parties sought an expeditious decision), but Marshall apprehended the issues immediately, commenting to a fellow justice that “if the principles which have been advanced on this occasion were to prevail, the constitution would be converted into the old confederation.”
Many principles were in play in Marshall's decision: federal supremacy over the states within a constitutional sphere (Maryland could not punitively tax a federal institution), judicial review (reaffirmed), nullification (denied — state action may not impede valid constitutional exercises of power by the federal government)and finally, the most important issue, implied powers.
Invoking the necessary and proper clause of the Constitution, Marshall declared:
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
Here, finally, was an objective guideline for the interpretation of the constitution. Accordingly, the constitutionality of the Bank of the United States was established without a doubt. By extension, its heir today, the Federal Reserve Bank, is a valid, constitutional entity empowered by Congress “to coin money and establish the value thereof” — however much we may disagree with its methods and their effects.
* * *
Much controversy over the Constitution and its meaning continues — witness the Russell Pierce case and the calls for the abolition of the Federal Reserve. Even the Bill of Rights is not fully settled law. During recent arguments before the Court, Justice Elena Kagan sought to minimize the importance of an attorney’s statement, with which she disagreed, by referring to “buzz words”:“heightened scrutiny” and “rational basis.” These words refer to the standards a court should employ in assessing the impact of governmental action that may affect individual rights. As Chip Mellor of the Institute for Justice has stated in Forbes, contemporary judicial activism has “creat[ed] a hierarchy of rights with those at the top (like the First Amendment) receiving relatively strong protection — the heightened scrutiny — and those at the bottom (property rights and economic liberty) receiving very little," since these latter are thought to require a "rational basis" for review.
Following Cherokee Nation v. Georgia, Jackson is reputed to have said, “John Marshall has made his decision, now let him enforce it.”
The Constitution is only "settled" law in the sense that nearly all Americans accept it as not only our primary founding document, but also as the lawful basis for our government. In many other respects, it is far from "settled" — witness the extremely varying interpretations ascribed to it and the continuing legal battles over exactly what it means and how to apply it. John Marshall, in Marbury v. Madison and McCulloch v. Maryland, set parameters within which that debate should productively take place. Understanding those two cases — and Marshall's perspective — is essential to a knowledgeable understanding of our government's structure and powers.
As libertarians, we can be most effective if we work within the framework of accepted law to protect and extend liberty, rather than making ineffective flanking attacks from the swampy fringes, armed with quixotic arguments. The Constitution must be scrupulously and objectively interpreted, and with due respect for Marshall’s great tradition: first, as Randy Barnett has suggested, according to “original meaning” of the words used at the time; then, according to “original intent” — a less stringent bar, requiring interpretation of documents such as the Federalist Papers. This approach to interpreting the Constitution is a firmer bulwark for liberty than the well-intentioned but murky intellectual musings of Jefferson, which — though noble and intelligent — are no substitute for tight legal reasoning.