John Marshall and the Constitution, a Chronicle of the Supreme CourtCorwin, Edward Samuel
History
John Marshall and the Constitution, a Chronicle of the Supreme Court
Corwin, Edward Samuel
Constitutional history -- United States; Marshall, John, 1755-1835; United States. Supreme Court
For several years after this, hardly a session of Congress convened in
which there was not introduced some measure for the purpose either of
curbing the Supreme Court or of curtailing Marshall's influence on its
decisions. One measure, for example, proposed the repeal of Section XXV;
another, the enlargement of the Court from seven to ten judges; another,
the requirement that any decision setting aside a state law must have
the concurrence of five out of seven judges; another, the allowance of
appeals to the Court on decisions adverse to the constitutionality of
state laws as well as on decisions sustaining them. Finally, in January,
1826, a bill enlarging the Court to ten judges passed the House by a
vote of 132 to 27. In the Senate, Rowan of Kentucky moved an amendment
requiring in all cases the concurrence of seven of the proposed ten
judges. In a speech which was typical of current criticism of the Court
he bitterly assailed the judges for the protection they had given the
Bank--that "political juggernaut," that "creature of the perverted
corporate powers of the Federal Government"--and he described the Court
itself as "placed above the control of the will of the people, in a
state of disconnection with them, inaccessible to the charities and
sympathies of human life." The amendment failed, however, and in the end
the bill itself was rejected.
Yet a proposition to swamp the Court which received the approval of
four-fifths of the House of Representatives cannot be lightly dismissed
as an aberration. Was it due to a fortuitous coalescence of local
grievances, or was there a general underlying cause? That Marshall's
principles of constitutional law did not entirely accord with the
political and economic life of the nation at this period must be
admitted. The Chief Justice was at once behind his times and ahead of
them. On the one hand, he was behind his times because he failed to
appreciate adequately the fact that freedom was necessary to frontier
communities in meeting their peculiar problems--a freedom which the
doctrine of State Rights promised them--and so he had roused Kentucky's
wrath by the pedantic and, as the Court itself was presently forced to
admit, unworkable decision in Green vs. Biddle. Then on the other hand,
the nationalism of this period was of that negative kind which was
better content to worship the Constitution than to make a really
serviceable application of the national powers. After the War of 1812
the great and growing task which confronted the rapidly expanding nation
was that of providing adequate transportation, and had the old
federalism from which Marshall derived his doctrines been at the helm,
this task would undoubtedly have been taken over by the National
Government. By Madison's veto of the Cumberland Road Bill, however, in
1816, this enterprise was handed over to the States; and they eagerly
seized upon it after the opening of the Erie Canal in 1825 and the
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account