It was in the course of this decision that Marshall asserted in
unmistakable language the sovereignty of the National Government. "The
people made the Constitution and the people can unmake it.... But this
supreme and irresistible power to make or to unmake resides only in the
whole body of the people; not in any subdivision of them. The attempts
of any of the parts to exercise it is usurpation, and ought to be
repelled by those to whom the people have delegated the power of
repelling it.... The framers of the Constitution were indeed unable to
make any provisions which should protect that instrument against a
general combination of the States, or of the people for its destruction;
and conscious of this inability, they have not made the attempt. But
they were able to provide against the operation of measures adopted in
any one State, whose tendency might be to arrest the execution of the
laws; and this it was the part of wisdom to attempt. We think they have
attempted it."
Between these notable Virginia cases was decided, in 1819, the case of
_M'Culloch_ v. _Maryland_, in which the Chief Justice sustained the
constitutionality of the act establishing the National Bank, and
declared a state law imposing a tax on a branch of the Bank
unconstitutional and void. In the course of his opinion, which followed
much the same line of reasoning that Alexander Hamilton had employed,
Marshall stated in classic phraseology the doctrine of liberal
construction. Holding that the Constitution was not a code of law, but a
document marking out in large characters the powers of government, he
sought, among the enumerated powers, not the lesser, but the great
substantive, powers necessary to the purposes of the Union. These
substantive powers, however, carry with them many incidental (Hamilton
said _resulting_) powers, among which a choice may freely be made to
achieve the desired and legitimate end. "Let the end be legitimate,"
said Marshall, "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." In an earlier decision (_United
States_ v. _Fisher_, 1804), indeed, Marshall had refused to concede the
force of the argument that the Federal Government was clothed only with
the powers indispensably necessary to exercise powers expressly granted
to it. "Congress must possess the choice of means which are in fact
conducive to the exercise of a power granted by the Constitution."
Public-domain text, read in full here on John Shaqi.
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