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The Constitution and Chief Justice Marshall…

The Constitution and Chief Justice Marshall

by William Finley Swindler

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I suspect this book will appeal mostly to Supreme Court junkies like myself. More than half the book consists of the opinions in cases Swindler has decided are essential to understanding Marshall's extraordinary role in shaping the way we view the Constitution and the development of our legal system.

As I learned from the Jeffersonian Crisis, the newly elected Republicans were all in a twitter with Federalist judges and they were eager to remove as many of them as possible. Marshall the the last Federalist judge to be appointed to the court for fifty years. All of the rest were of Republican persuasion (eventually Democrats.) It was a deliberate attempt to alter the political philosophy of the Marshall Court which had been distinctly nationalist. It didn't work very well as Joseph Story (a favorite of Justice Scalia's ironically) and a nominal Republican proceeded to join Marshall's nationalistic nucleus and writing opinions which were to form the basis for McCullough v Maryland, the case which established the supremacy of the federal government over the states with regard to national economic interest.

It was Jackson who fought the battle against the Second Bank of the United States. His chief agent in the battle was Roger Taney, later to become Chief Justice and decide the disastrous Dred Scott decision. Marshall and his court ruled that the establishment of a national bank was constitutional under the "necessary and proper" clause and it was thus unconstitutional for Maryland to tax notes issued by the United States.

The current battle over the power and scope of the commerce clause (the Constitutional gives Congress supreme authority over economic transactions of an interstate nature -- the conflict is over whether anything these days can be truly considered intrastate and this clause was to provide the foundation for the dismantling of segregated public facilities) has its origins in Gibbons v Ogden in which the Marshall court again increased the dominance of the federal government in a case regarding steamboat franchises.

Tragically, Aaron Burr was caught up in the battle between Marshall and Jefferson with Jefferson venting his wrath on Burr this time as well. Jefferson had placed Burr in charge of the impeachment hearings of Samuel Chase which, much to Jefferson's regret, Burr presided over with "ferocious impartiality." Burr's trial for treason was further hindered when John Marshall turned up as the Circuit Judge in Burr's case. (Burr had resigned from the vice-presidency and begun preparations for a military expedition which was either treasonous or patriotic depending on your point of view -- shades of Oliver North, that weasel.) Marshall and Jefferson were soon locked in a battle over executive privilege when Burr demanded to see documents in the president's possession. (Ring any bells?) Their ultimate compromise meant the issue was to remain unresolved for another 150 years. President Jefferson fumed over Marshall's ruling and his comment so resembles protestations from both the right and the left today when rulings don't go their way. He said "It now appears we have no law but the will of the judge."

When one hears all the caterwauling about the Federal government and state's rights, etc., etc. it's important to note that 95% of all laws passed in the United States are state laws, a number that astounds my constitutional class students. ( )
  ecw0647 | Sep 30, 2013 |
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