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The Great John Marshall, Part 4

The Great John Marshall, Part 4

This essay first appeared in the Jun. 2, 2024 Epoch Times.

The first installment in this series summarized Chief Justice John Marshall’s early life and his contributions to the adoption of the Constitution. The second installment examined his career as an envoy to France, member of Congress, and Secretary of State.

The third focused on his decisions in Marbury v. Madison and McCulloch v. Maryland. It concluded that those decisions do not support the common view that Marshall was an early model for liberal judicial activism.

This part discusses two more of his leading cases and summarizes the remainder of his life.

Gibbons v. Ogden (1824)

As in the two earlier cases reviewed, Marshall spoke for a unanimous court in Gibbons v. Ogden. Two rulings were central to the case: (1) The Constitution’s grant to Congress of power to regulate interstate commerce included authority to regulate interstate navigation, and (2) a congressional law regulating interstate navigation prevailed over an inconsistent state law on the subject.

Marshall was not being creative by including navigation within Congress’s Commerce Power. The Founding-era record shows that he was saying no more than the truth: Regulating navigation always had been understood as a portion of regulating commerce.

Some have suggested that Gibbons gave Congress authority to control any activity “affecting” commerce. The Supreme Court adopted this position in Wickard v. Filburn (1942), and it has become a constitutional pretext for much of the federal administrative state. But this suggestion overlooks some important language in Marshall’s Gibbons opinion.

The overlooked language is the Chief Justice’s argument that inspection laws are matters for the states alone, not for the federal government. He wrote:

“That inspection laws may have a remote and considerable influence on commerce, will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived, cannot be admitted. . . . [Inspection laws] act upon the subject before it becomes an article of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government . . . . Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. [etc.], are component parts of this mass. No direct general power over these objects is granted to Congress . . . .”

Notice that in this passage, Marshall specifically rejected the idea that because an activity affects (“a considerable influence on”) interstate commerce the feds can regulate it. Notice also that Marshall would have considered federal health laws such as Obamacare to be unconstitutional.

Gibbons’ other important holding was that a federal navigation statute overrode an inconsistent state statute. Because the federal law was within Congress’s power, this result necessarily follows under the supremacy rule in the Constitution’s Article VI.

Worcester v. Georgia (1832)

Chief Justice Marshall’s opinion in Worcester v. Georgia sometimes is used to buttress the dubious claim that the Constitution grants Congress (as against the states) “plenary and exclusive” authority over Indian affairs. Thus, in Haaland v. Brackeen (2023), the Supreme Court relied partly on Worcester to sustain congressional control over Indian child placement.

The “plenary and exclusive” claim is patently false, and Marshall’s Worcester opinion does not support it.

It is true that Worcester (correctly) upheld federal authority over the Cherokee Indians at the expense of the State of Georgia. But this was not because of power given the federal government by the Constitution. It was because of specific treaties between the United States and the Cherokee. (Marshall, like other Founders, understood that a treaty could give the federal government some authority it otherwise would not have.)

But Worcester is irrelevant to federal laws—such as the one at issue in Haaland v. Brackeen—which apply to Indians other than the Cherokee. Moreover, as Marshall emphasized, even the Cherokee treaties granted Congress no power to regulate internal Indian affairs.

As is true of other efforts to enlist Marshall in the cause of the liberal judicial project, the Worcester case does not justify the Haaland decision.

A Word on Interpretation

Politicians, lawyers, and members of the general public frequently argue about how the Constitution should be interpreted. Phrases like “strict construction,” “liberal construction,” “precedent,” “original meaning,” and “living constitution” are tossed around—often with little understanding of their real definitions.

To add to the confusion, law professors invent “interpretive theories” tailored to give them the political results they favor. (I’m reminded of the quip in Robert Heinlein’s novel Methuselah’s Children: “[He] wants what he wants when he wants it—and thinks that constitutes a natural law.”)

However, the Constitution’s framers wrote the document on the understanding that it would be read according to then-prevailing legal rules. Had they expected it to be interpreted by other standards, they doubtless would have worded it differently.

When the Constitution was adopted, the principal prevailing rule for interpreting a text was to seek the “intent of the makers.” In the case of a Constitution, the “makers” were the ratifiers. (Today we call this standard “original understanding.”) If you could not find the makers’ intent, then you construed the document according to how they probably understood it—that is, according to how a reasonable person would have understood it at the time of adoption. (Today we call this “original meaning.”)

When Marshall wrote, there was no comprehensive collection of the 1787-1790 ratification debates, such as exists today. Not even James Madison’s notes from the Constitutional Convention had been published. Nor was there much case precedent on the Constitution itself. The lack often forced Marshall to focus on the document’s text alone, without additional guides to finding the “intent of the makers.”

Still, he acknowledged that “the great duty of a judge who construes an instrument is to find the intention of its makers.” Focusing on intention ruled out construing the document either too narrowly or too broadly:

“There is certainly a medium between that restricted sense which confines the meaning of words to narrower limits than the common understanding of the world affixes to them, and that extended sense which would stretch them beyond their obvious import. There is a fair construction which gives to language the sense in which it is used, and interprets an instrument according to its true intention.”

Marshall always stuck with this “fair construction” ideal.

Some who attempt to paint the lanky Virginian as a proto-liberal activist point out that in Marbury v. Madison he wrote, “We must never forget that it is a constitution we are expounding.”

By that sentence, however, Marshall did not mean that the makers’ intention should be disregarded and the Constitution rendered malleable. On the contrary, it was part of his explanation that the precise procedure for finding the intent of the makers of a constitution differs somewhat from the procedure for finding the intent of the makers of a statute or contract.

But the underlying goal was precisely the same: to apply the document as its makers understood it, not in any other way.

Later Life

Marshall remained on the Supreme Court until his death. Yet there was more to his life than the court. Between 1804 and 1807, he authored a five-volume biography of George Washington. He later composed an abridged second edition.

Always physically vigorous, in 1812 the Chief Justice led a Virginia survey expedition to the falls of the Kanawha River, deep into what is now West Virginia.

He spent his summer vacations in the mountains, but when not in the mountains or in the nation’s capital, he was a feature of Richmond, Virginia life. He retained the common touch, and enjoyed mixing with others. Biographer Charles F. Hobson reports, “A frequent sight in Richmond was the chief justice, basket in hand, doing the family marketing.”

At the age of 74, he served in the 1829-1830 Virginia constitutional convention along with ex-presidents James Madison and James Monroe.

He lived until he was 79, finally passing on July 6, 1835. His Richmond home is preserved for public view.

Rob Natelson