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.
Public-domain text, read in full here on John Shaqi.
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