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
But doubtless, the critic will urge, by the same sign this decision also
put profit-seeking corporations beyond wholesome legislative control.
But is this a fact? To begin with, such a criticism is clearly
misdirected. As we have just seen, the New Hampshire Superior Court
itself would have felt that Fletcher vs. Peck left it no option but to
declare the amending act void, had Dartmouth College been, say, a gas
company; and this was in all probability the universal view of bench and
bar in 1819. Whatever blame there is should therefore be awarded the
earlier decision. But, in the second place, there does not appear after
all to be so great measure of blame to be awarded. The opinion in
Dartmouth College vs. Woodward leaves it perfectly clear that
legislatures may reserve the right to alter or repeal at will the
charters they grant. If therefore alterations and repeals have not been
as frequent as public policy has demanded, whose fault is it?
Perhaps, however, it will be argued that the real mischief of the
decision has consisted in its effect upon the state Legislatures
themselves, the idea being that large business interests, when offered
the opportunity of obtaining irrepealable charters, have frequently
found it worth their while to assail frail legislative virtue with
irresistible temptation. The answer to this charge is a "confession in
avoidance"; the facts alleged are true enough but hardly to the point.
Yet even if they were, what is to be said of that other not uncommon
incident of legislative history, the legislative "strike," whereby
corporations not protected by irrepealable charters are blandly
confronted with the alternative of having their franchises mutilated or
of paying handsomely for their immunity? So the issue seems to resolve
itself into a question of taste regarding two species of legislative
"honesty." Does one prefer that species which, in the words of the late
Speaker Reed, manifests itself in "staying bought," or that species
which flowers in legislative blackmail? The truth of the matter is that
Marshall's decision has been condemned by ill-informed or
ill-intentioned critics for evils which are much more simply and much
more adequately explained by general human cupidity and by the power
inherent in capital. These are evils which have been experienced quite
as fully in other countries which never heard of the "obligation of
contracts" clause.
Public-domain text, read in full here on John Shaqi.
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