The Great John Marshall, Part 3

Now, let’s turn to some key Marshall Supreme Court decisions to see what they do—and don’t—say.
The Great John Marshall, Part 3
The U.S. Supreme Court in Washington on May 15, 2024. (Madalina Vasiliu/The Epoch Times)
Rob Natelson
The first installment in this series summarized John Marshall’s early life and his contributions to the adoption of the Constitution. The second discussed his career up to Jan. 27, 1801, the day the Senate confirmed his appointment to the Supreme Court.
This Part 3 and the concluding Part 4 will touch on some highlights of his 34-year career as chief justice.

The False ‘Big Government’ Narrative About Marshall

You may encounter the claim (check your kids’ school books!) that Marshall was a bold, activist justice who manipulated the Constitution in service of a powerful central government—that he was an early model for the 20th-century liberal activists who gutted the Constitution’s limits on federal power and waged judicial war against the states.

As explained below, this depiction is simply wrong.

To see why, this Part 3 and the following Part 4 examine four key Marshall decisions: Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), and Worcester v. Georgia (1834).

The big government/judicial activist story about Marshall has at least three sources. First, he interpreted the Constitution to grant Congress more power than his Jeffersonian opponents favored, so they attacked him for it. Second, Marshall sometimes didn’t bother to cite authority for a legal proposition because everyone already accepted it. Commentators unaware of the law of the time may see this lack of citation as evidence that Marshall was making things up.

Third, there has been an effort in the law schools—and at times in the Supreme Court—to appropriate Marshall as a model for liberal activism. Students may be assigned edited versions of Marshall’s opinions that omit qualifying language. Their professors may fail to explain important background facts.

Also, on the first point: Marshall’s opposition to the Jeffersonian version of the Constitution did not make him an advocate of big government. Some of the views of the Jeffersonians on federal power were so narrow that even Jefferson’s close associate, James Madison, rejected them.

By way of illustration: President Thomas Jefferson doubted whether the Constitution gave the federal government power to acquire the Louisiana Territory by treaty. But by international law, land acquisition was always understood to be inherent in the treaty power. This issue was thoroughly discussed during the Virginia ratifying convention. However, Jefferson didn’t hear that discussion because he was in France when the convention was held.

Now let’s turn to some key Marshall decisions to see what they do—and don’t—say.

Marbury v. Madison (1803)

The gist of Marshall’s unanimous ruling in Marbury v. Madison was this: The Constitution gives Congress only “enumerated” (listed) powers. When Congress tried to grant the Supreme Court authority to issue a writ of mandamus (a kind of order) against federal officers, Congress tried to exercise a power not on the Constitution’s list. This violated the Constitution. And because the Constitution is superior to a congressional statute, when a court is faced with a conflict between them, the court must choose the Constitution over the statute.
The process by which a judge decides if a law conflicts with the Constitution is called “judicial review.” You also may encounter the claim (check your kids’ school books!) that Marshall “invented” or “established” judicial review in Marbury. This is nonsense.

When Americans were still British colonists, they knew that colonial laws that violated Magna Carta were void. They also recognized that colonial laws violating a colony’s charter were void. Sam Adams of Massachusetts even argued that acts of Parliament violating key portions of Magna Carta were void.

During the debates over the Constitution, Marshall, Alexander Hamilton, and others pointed out that the courts could invalidate unconstitutional acts. They could say this because judicial review was becoming a universally accepted concept. One scholar has noted that when Marbury was decided, there already were more than 30 cases recognizing judicial review.

Marshall wasn’t “inventing” or “establishing” anything.

Another distortion of Marbury is that it stands for “judicial supremacy.” Judicial supremacy is the notion that only the courts may interpret the Constitution, and judicial interpretations are supreme. The notion frequently is based on Marshall’s statement in Marbury, “It is emphatically the province and duty of the judicial department to say what the law is.” Several recent opinions by Montana Supreme Court justices have cited this language to claim that their own decisions override those of everyone else.
Actually, Marshall never advocated judicial supremacy. He asserted only that when a case duly comes before a court, the court must determine the meaning of the law. The phrase “say what the law is” wasn’t original with him. It had been used by other judges merely as an English translation of juris dictio, the Latin root of the word “jurisdiction.”

Moreover, Marshall freely acknowledged that other branches of government may issue constitutional interpretations. A major portion of his 1800 congressional speech (discussed in Part 2) was devoted to showing just that. He added that sometimes executive branch decisions take priority over judicial ones.

Marshall’s biographer, Charles F. Hobson, also denied that Marbury was a case of judicial activism. After explaining that judicial review was already firmly embedded in American law, he added, “Far from being a bold assertion of judicial power, Marbury actually marked a strategic retreat by the judiciary from the aggressive, partisan posture it had lately exhibited under the Adams administration.”
In Marshall’s 34 years on the bench, Marbury was the only case in which he and his colleagues declared a federal law unconstitutional.
So much for “judicial activism.”

McCulloch v. Maryland (1819)

There were two primary issues in McCulloch v. Maryland. The more important one was whether Congress had power to incorporate a national bank. Marshall’s opinion on this subject, like his opinion in Marbury, has been grossly misunderstood. I’ll clarify here what Marshall said and didn’t say.
The Constitution grants Congress several financial powers, including the powers to tax, borrow, spend, coin, and regulate money. It further recognizes Congress’s authority to adopt laws “necessary and proper” for carrying out its powers (Article I, Section 8, Clause 18). The primary issue in McCulloch was whether Congress could incorporate a national bank to help carry out its financial authority.
Americans had already debated this issue extensively. James Madison, who was president when McCulloch was decided, had been on both sides: He initially argued that a national bank was unconstitutional, but subsequently changed his mind.
Marshall emphasized that Congress could select the “means” (methods) for carrying out its authority. What he didn’t explain fully—because at the time it was widely understood—is that a permitted method could be either (a) within the narrow definition of a listed power or (b) incidental to a listed power.
A power was incidental if it was both (1) of lesser importance than a listed power and (2) either (i) a reasonably necessary or (ii) a customary way of carrying it out.

By way of illustration: The Constitution states that Congress may “lay and collect Taxes” (Article I, Section 8, Clause 1). In carrying out this authority, Congress may impose sales taxes. Or income taxes. Or tariffs. Or some combination thereof. Any of these is a permissible means within the narrow definition of “lay and collect Taxes.”

But Congress might take other steps not within the narrow definition. It might construct an office building to house the tax collectors. Constructing an office building for tax collectors is “incidental” to the power to “lay and collect Taxes.”

The necessary and proper clause clarifies that Congress may exercise incidental powers. The “necessary and proper” wording was based on terms commonly used in legal documents to refer to incidental powers.

In McCulloch, the parties disagreed on whether incorporating a bank was incidental to Congress’s financial authority. The attorneys for the State of Maryland argued it was not incidental. They claimed that for a power to be incidental to a listed power, it must be absolutely necessary for carrying out the listed power. They observed that it was possible for Congress to execute its financial authority without a bank.

The Ruling

Marshall and his colleagues understood that Maryland’s attorneys were wrong about the law of incidental powers. While it was true that some incidents were absolutely necessary, others were not. An incident might be only reasonably necessary or customary.

As everyone at the time understood, chartering a national bank was a customary way for governments to carry out their financial responsibilities. Marshall further concluded that the incorporation power was nowhere near as important as the financial powers the Constitution gave to Congress. He therefore ruled that incorporating a national bank was within Congress’s incidental authority.

Marshall and his colleagues also knew that Maryland’s “absolutely necessary” rule was not only an incorrect statement of the law, but unworkable. Under the “absolutely necessary” rule, the feds could not construct office space for tax collectors because of the renting alternative. And they could not rent because of the building alternative.

As you can see, Marshall’s decision in McCulloch was designed to protect the government’s ability to carry out its constitutional responsibilities. It was defensive rather than offensive in nature. It certainly was not designed to construct the federal behemoth that exists today. Hobson points out that this was true of Marshall’s other “federalism” decisions as well.

A Final Clarification

You may come across claims (again, check your kids’ school books!) that the necessary and proper clause grants Congress vast authority and that Marshall’s ruling in McCulloch recognized this. During the New Deal era, the Supreme Court made this claim.

The truth about the necessary and proper clause is precisely the opposite. As several Founders explained during the constitutional debates of 1787–1790—and as Marshall also acknowledged—the necessary and proper clause actually does not convey any power at all. It merely tells the reader that the powers the Constitution grants should be construed according to the Founders’ intentions, not according to their narrowest possible meaning. Carrying out the intentions behind a document is, in fact, what the Founding-era doctrine of “incidental powers” was designed to do.

Readers curious about the background of the necessary and proper clause may consult some of my academic publications on the subject.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”