Marshall Court (1801–1835)
MARSHALL COURT (1801–1835)
In 1801 the Supreme Court existed on the fringe of American awareness. Its prestige was slight, and it was more ignored than respected. On January 20, 1801, the day President john adams nominated john marshall for the chief justiceship, the commissioners of the district of columbia informed Congress that the Court had no place to hold its February term. The Senate consented to the use of one of its committee rooms, and Marshall took his seat on February 4 in a small basement chamber. At the close of 1809, Benjamin Latrobe, the architect, reported that the basement had been redesigned to enlarge the courtroom and provide an office for the clerk and a library room for the Justices. In 1811, however, Latrobe reported that the Court "had been obliged to hold their sittings in a tavern," because Congress had appropriated no money for "fitting up and furnishing the Court-room.…" After the British burned the Capitol in 1814 Congress again neglected to provide for the Court. It held its 1815 term in a private home, and for several years after met in temporary Capitol quarters that were "little better than a dungeon." The Court moved into permanent quarters in 1819. In 1824 a New York correspondent described the Court's Capitol chamber: "In the first place, it is like going down cellar to reach it. The room is on the basement story in an obscure part of the north wing.… A stranger might traverse the dark avenues of the Capitol for a week, without finding the remote corner in which Justice is administered to the American Republic." He added that the courtroom was hardly large enough for a police court.
The Supreme Court, however, no longer lacked dignity or respect. It had become a force that commanded recognition. In 1819 a widely read weekly described it as so awesome that some regarded it with reverence. That year thomas jefferson complained that the Court had made the Constitution a "thing of wax," which it shaped as it pleased, and in 1824 he declared that the danger he most feared was the Court's "consolidation of our government." Throughout the 1820s Congress debated bills to curb the Court, which, said a senator, the people blindly adored—a "self-destroying idolatry." alexis de tocqueville, writing in 1831, said: "The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven Federal judges. Without them, the Constitution would be a dead letter.…" Hardly a political question arose, he wrote, that did not become a judicial question.
Chief Justice Marshall was not solely responsible for the radical change in the Court's status and influence, but he made the difference. He bequeathed to the people of the United States what it was not in the political power of the Framers of the Constitution to give. Had the Framers been free agents, they would have proposed a national government that was unquestionably dominant over the states and possessed a formidable array of powers breathtaking in flexibility and scope. Marshall in more than a figurative sense was the supreme Framer, emancipated from a local constituency, boldly using his judicial position as an exalted platform from which to educate the nation to the true meaning, his meaning, of the Constitution. He wrote as if words of grandeur and power and union could make dreams come true. By the force of his convictions he tried to will a nation into being.
He reshaped the still malleable Constitution, giving clarification to its ambiguities and content to its omissions that would allow it to endure for "ages to come" and would make the government of the Union supreme in the federal system. Marshall is the only judge in our history whose distinction as a great nationalist statesman derives wholly from his judicial career. Justice oliver wendell holmes once remarked, "If American law were to be represented by a single figure, sceptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall." That the Court had remained so weak after a decade of men of such high caliber as john jay, oliver ellsworth, james wilson, james iredell, william paterson, and samuel chase demonstrates not their weakness but Marshall's achievement in making the Court an equal branch of the national government.
Until 1807 he cast but one of six votes, and after 1807, when Congress added another Justice, but one of seven. One Justice, one vote has always been the rule of the Court, and the powers of anyone who is Chief Justice depend more on the person than the office. From 1812, bushrod washington and Marshall were the only surviving Federalists, surrounded by five Justices appointed by Presidents Thomas Jefferson and james madison; yet Marshall dominated the Court in a way that no one has ever since. During Marshall's thirty-five-year tenure, the Court delivered 1,106 opinions in all fields of law, and he wrote 519; he dissented only eight times. He wrote forty of the Court's sixty-four opinions in the field of constitutional law, dissenting only once in a constitutional case. Of the twenty-four constitutional opinions for the Court that he did not write, only two were important: martin v. hunter ' s lessee (1816), a case in which he did not sit, and ogden v. saunders (1827), the case in which he dissented. He virtually monopolized the constitutional cases for himself and won the support of his associates, even though they were members of the opposing political party.
Marshall's long tenure coincided with the formative period of our constitutional law. He was in the right place at the right time, filling, as Holmes said, "a strategic place in the campaign of history." But it took the right man to make the most of the opportunity. Marshall had the character, intellect, and passion for his job that his predecessors lacked. He had a profound sense of mission comparable to a religious "calling." Convinced that he knew what the Constitution should mean and what it was meant to achieve, he determined to give its purposes enduring expression and make them prevail. The Court was, for him, a judicial pulpit and political platform from which to address the nation, to compete, if possible, with the executive and legislative in shaping public opinion.
Marshall met few of the abstract criteria for a "great" judge. A great judge should possess intellectual rectitude and brilliance. Marshall was a fierce and crafty partisan who manipulated facts and law. A great judge should have a self-conscious awareness of his biases and a determination to be as detached as human fallibility will allow. In Marshall the judicial temperament flickered weakly; unable to muzzle his deepest convictions, he sought to impose them on the nation, sure that he was right. He intoxicated himself with the belief that truth, history, and the Constitution dictated his opinions, which merely declared the law rather than made the law. A great judge should have confidence in majority rule, tempered by his commitment to personal freedom and fairness. Marshall did not think men capable of self-government and inclined to favor financial and industrial capitalism over most other interests. A great judge should have a superior technical proficiency, modified by a sense of justice and ethical behavior beyond suspicion. Marshall's judicial ethics were not unquestionable. He should have disqualified himself in marbury v. madison (1803) because of his negligent complicity. He overlooked colossal corruption in fletcher v. peck (1810) to decide a land title case by a doctrine that promoted his personal interests. He wrote the opinion in mcculloch v. maryland (1819) before hearing the case. Marshall's "juridical learning," as Justice joseph story, his reverent admirer and closest colleague, conceded, "was not equal to that of the great masters in the profession.…"He was, said Story, first, last, and always, "a Federalist of the good old school," and in the maintenance of its principles "he was ready at all times to stand forth a determined advocate and supporter." He was, in short, a Federalist activist who used the Constitution to legitimate predetermined results. A great judge should have a vision of national and moral greatness, combined with respect for the federal system. Marshall had that—and an instinct for statecraft and superb literary skills. These qualities, as well as his activism, his partisanship, and his sense of mission, contributed to his inordinate influence.
So too did his qualities of leadership and his personal traits. He was generous, gentle, warm, charming, considerate, congenial, and open. At a time when members of the Court lived together in a common boarding house during their short terms in Washington, his charismatic personality enabled him to preside over a judicial family, inspire loyalty, and convert his brethren to his views. He had a cast-iron will, an astounding capacity for hard work (witness the number of opinions he wrote for the Court), and formidable powers of persuasion. He thought audaciously in terms of broad and basic principles that he expressed axiomatically as absolutes. His arguments were masterful intellectual performances, assuming that his premises were valid. Inexorably and with developing momentum he moved from an unquestioned premise to a foregone conclusion. Jefferson once said that he never admitted anything when conversing with Marshall. "So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone." Marshall's sophistry, according to Jefferson, was so great, "you must never give him an affirmative answer or you will be forced to grant his conclusion. Why, if he were to ask me if it were daylight or not, I'd reply, "Sir, I don't know. I can't tell." Marshall could also be imperious. He sometimes gave as the opinion of the court a position that had not mustered a majority. According to one anecdote, Marshall is supposed to have said to Story, the greatest legal scholar in our history, "That, Story, is the law. You find the precedents."
The lengthy tenure of the members of the Marshall Court also accounts for its achievements. On the pre-Marshall Court, the Justices served briefly; five quit in a decade. The Marshall Court lasted—brockholst livingston seventeen years, thomas todd nineteen, gabriel duvall twenty-four, william johnson thirty, Bushrod Washington thirty-one, and Marshall outlasted them all. Story served twenty-four years with Marshall and ten more after his death; smith thompson served fifteen years with Marshall and eight years after. This continuity in personnel contributed to a consistent point of view in constitutional doctrine—a view that was, substantially, Marshall's. From 1812, when the average age of the Court's members was only forty-three, through 1823—twelve successive terms—the Court had the same membership, the longest period in its history without a change, and during that period the Marshall Court decided its most important cases except for Marbury.
Marshall also sought to strengthen the Court by inaugurating the practice of one Justice's giving the opinion of the Court. Previously the Justices had delivered their opinions seriatim, each writing an opinion in each case in the style of the English courts. That practice forced each Justice to take the trouble of understanding each case, of forming his opinion on it, and showing publicly the reasons that led to his judgment. Such were Jefferson's arguments for seriatim opinions; and Marshall understood that one official opinion augmented the Court's strength by giving the appearance of unity and harmony. Marshall realized that even if each Justice reached similar conclusions, the lines of argument and explanation of doctrine might vary with style and thought of every individual, creating uncertainty and impairing confidence in the Court as an institution. He doubtless also understood that by massing his Court behind one authoritative opinion and by assigning so many opinions to himself, his own influence as well as the Court's would be enhanced. Jefferson's first appointee, Justice Johnson, sought to buck the practice for a while. He had been surprised, he later informed Jefferson, to discover the Chief Justice "delivering all the opinions in cases in which he sat, even in some instances when contrary to his own judgment and vote." When Johnson remonstrated in vain, Marshall lectured him on the "indecency" of judges' "cutting at each other," and Johnson soon learned to acquiesce "or become such a cypher in our consultations as to effect no good at all." Story, too, learned to swallow his convictions to enhance the "authority of the Court." His "usual practice," said Story, was "to submit in silence" to opinions with which he disagreed. Even Marshall himself observed in an 1827 case, by which time he was losing control of his Court, that his usual policy when differing from majority was "to acquiesce silently in its opinion."
Like other trailblazing activist judges, Marshall squeezed a case for all it was worth, intensifying its influence. For Marshall a constitutional case was a medium for explaining his philosophy of the supreme and fundamental law, an occasion for sharing his vision of national greatness, a link between capitalism and constitutionalism, and an opportunity for a basic treatise. Justice Johnson protested in 1818, "We are constituted to decide causes, and not to discuss themes, or digest systems." He preferred, he said, to decide no more in any case "than what the case itself necessarily requires." Ordinary Justices decide only the immediate question on narrow grounds; but Marshall, confronted by some trivial question—whether a justice of the peace had a right to his commission or whether peddlers of lottery tickets could be fined—would knife to the roots of the controversy, discover that it involved some great constitutional principle, and explain it in the broadest possible way, making the case seem as if the life of the Union or the supremacy of the Constitution were at stake. His audacity in generalizing was impressive; his strategy was to take the highest ground and make unnerving use of obiter dicta; and then, as a matter of tactics, almost unnoticeably decide on narrow grounds. Marbury is remembered for Marshall's exposition of judicial review, not for his judicial humility in declining jurisdiction and refusing to issue the writ of mandamus. cohens v. virginia (1821) is remembered for Marshall's soaring explication of the supremacy of the judicial power of the united states, not for the decision in favor of Virginia's power to fine unlicensed lottery ticket peddlers. gibbons v. ogden (1824) is remembered for its sweeping discourse on the commerce clause of the Constitution, not for the decision that the state act conflicted with an obscure act of Congress.
Marshall's first major opinion, in Marbury, displayed his political cunning, suppleness in interpretation, doctrinal boldness, instinct for judicial survival, and ability to maneuver a case beyond the questions on its face. Having issued the show cause order to Madison, the Court seemingly was in an impossible position once Jefferson's supporters called that order a judicial interference with the executive branch. To decide for Marbury would provoke a crisis that the Court could not survive: Madison would ignore the Court, which had no way to enforce its decision, and the Court's enemies would have a pretext for impeachment. To decide against Marbury would appear to endorse the illegal acts of the executive branch and concede that the Court was helpless. Either course of action promised judicial humiliation and loss of independence. Marshall therefore found a way to make a tactical retreat while winning a great strategic victory for judicial power. After upbraiding the executive branch for violating Marbury's rights, Marshall concluded that the Court had no jurisdiction in the case, because a provision of an act of Congress conflicted with Article III. He held that provision unconstitutional by, first, giving it a sweeping construction its text did not bear and, second, by comparing it to his very narrow construction of Article III. Thus he reached and decided the great question, not argued by counsel, whether the Court had the power to declare unconstitutional an act of Congress. By so doing he answered from the bench his critics in Congress who, now that they were in power, had renounced judicial review during the debate on the repeal of the judiciary act of 1801. Characteristically Marshall relied on no precedents, not even on the authority of the federalist #78. Significantly, he chose a safe act of Congress to void—section 13 of the judiciary act of 1789, which concerned not the province of the Congress or the President but of the Supreme Court, its authority to issue writs of mandamus in cases of original jurisdiction. But Marshall's exposition of judicial review was, characteristically, broader than the holding on section 13. Jefferson, having been given no stick with which to beat Marshall, privately fumed: "Nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them," he wrote in a letter. "The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but also for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch."
The Court did not dare to declare unconstitutional any other act of Congress which remained hostile to it throughout Marshall's tenure. stuart v. laird (1803), decided shortly after Marbury, upheld the repeal of the Judiciary Act of 1801. (See judiciary acts of 1802.) A contrary decision would have been institutionally suicidal for the Court. Marshall's opinion in Marbury was daring enough; in effect he courageously announced the Court's independence of the other branches of the government. But he was risking retaliation. Shortly before the arguments in Marbury, Jefferson instructed his political allies in the House to start impeachment proceedings against john pickering, a federal district judge; the exquisite timing was a warning to the Supreme Court. Even earlier, Jeffersonian leaders in both houses of Congress openly spoke of impeaching the Justices. The threats were not idle. Two months after Marbury was decided, Justice Chase on circuit attacked the administration in a charge to a grand jury, and the House prepared to impeach him. Senator william giles of Virginia, the majority leader, told Senator john quincy adams that not only Chase "but all the other Judges of the Supreme Court," except William Johnson, "must be impeached and removed." Giles thought that holding an act of Congress unconstitutional was ground for impeachment. "Impeachment was not a criminal prosecution," according to Giles, who was Jefferson's spokesman in the Senate. "And a removal by impeachment was nothing more than a declaration by Congress to this effect: you hold dangerous opinions, and if you are suffered to carry them into effect, you will work the destruction of the Union. We want your offices for the purposes of giving them to men who will fill them better."
Intimidated by Chase's impending impeachment, Marshall, believing himself to be next in line, wrote to Chase that "impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than a removal of the Judge who has rendered them unknowing of his fault." Less than a year after his Marbury opinion the fear of impeachment led an anguished Marshall to repudiate his reasoning and favor Congress as the final interpreter of the Constitution. Fortunately the greatest crisis in the Court's history eased when the Senate on March 1, 1805, failed to convict Chase on any of the eight articles of impeachment. Marshall and his Court were safe from an effort, never again repeated, to politicize the Court by making it subservient to Congress through impeachment.
The Court demonstrated its independence even when impeachment hung over it. In Little v. Barreme (1804) Marshall for the Court held that President Adams had not been authorized by Congress to order an American naval commander to seize a ship sailing from a French port. Justice Johnson on circuit vividly showed his independence of the President who had appointed him. To enforce the embargo acts, Jefferson had authorized port officers to refuse clearance of ships with "suspicious" cargoes. In 1808 Johnson, on circuit in Charleston, ordered the clearance of a ship and denounced the President for having exceeded the power delegated by the Embargo Acts. Jefferson could not dismiss as partisan politics Johnson's rebuke that he had acted as if he were above the law. Justice Brockholst Livingston, another Jefferson appointee, also had occasion in 1808 to show his independence of the President. Jefferson supported a federal prosecution for treason against individuals who had opposed the embargo with violence. Livingston, who presided at the trial, expressed "astonishment" that the government would resort to a theory of "constructive treason" in place of the Constitution's definition of treason as levying war against the United States and he warned against a "precedent so dangerous." The jury speedily acquitted. After the tonguelashing from his own appointees, Jefferson won an unexpected victory in the federal courts in the case of the brig William (1808). Federal district judge John Davis in Massachusetts sustained the constitutionality of the Embargo Acts on commerce clause grounds. Davis, a lifelong Federalist, showed how simplistic was Jefferson's raving about judicial politics.
The evidence for the Court's nonpartisanship seems plentiful. For example, Justice Story, Madison's appointee, spoke for an independent Court in Gelston v. Hoyt (1818), a suit for damages against government officials whose defense was that they had acted under President Madison's orders. Story, finding no congressional authority for these orders, "refused an extension of prerogative" power and added, "It is certainly against the general theory of our institutions to create discretionary powers by implication.…"
On the other hand, the Court supported the theory of implied powers in McCulloch v. Maryland (1819), which was the occasion of Marshall's most eloquent nationalist opinion. McCulloch had its antecedent in United States v. Fisher (1804), when the Court initially used broad construction to sustain an act of Congress that gave to the government first claim against certain insolvent debtors. Enunciating the doctrine of implied powers drawn from the necessary and proper clause, Marshall declared that Congress could employ any useful means to carry out its enumerated power to pay national debts. That the prior claim of the government interfered with state claims was an inevitable result, Marshall observed, of the supremacy of national laws. Although a precursor of McCulloch, Fisher attracted no opposition because it did not thwart any major state interests.
When the Court did confront such interests for the first time, in united states v. judge peters (1809), Marshall's stirring nationalist passage, aimed at states that annulled judgments of the federal courts, triggered Pennsylvania's glorification of state sovereignty and denunciation of the "unconstitutional exercise of powers in the United States Courts." The state called out its militia to prevent execution of federal judgments and recommended a constitutional amendment to establish an "impartial tribunal" to resolve conflicts between "the general and state governments." State resistance collapsed only after President Madison backed the Supreme Court. Significantly, eleven state legislatures, including Virginia's, censured Pennsylvania's doctrines and endorsed the Supreme Court as the constitutionally established tribunal to decide state disputes with the federal courts.
theJudge Peters episode revealed that without executive support the Court could not enforce its mandate against a hostile state, which would deny that the Court was the final arbiter under the Constitution if the state's interests were thwarted. The episode also revealed that if other states had no immediate stake in the outcome of a case, they would neither advance doctrines of state sovereignty nor repudiate the Court's supreme appellate powers. When Virginia's high court ruled that the appellate jurisdiction of the Supreme Court did not extend to court judgments and that section 25 of the Judiciary Act of 1789 was unconstitutional, the Marshall Court, dominated by Republicans, countered by sustaining the crucial statute in Martin v. Hunter's Lessee (1816). Pennsylvania and other states did not unite behind Virginia when it proposed the constitutional amendment initiated earlier by Pennsylvania, because Martin involved land titles of no interest to other states. The fact that the states were not consistently doctrinaire and became aggressive only when Court decisions adversely affected them enabled the Court to prevail in the long run. A state with a grievance typically stood alone. But for the incapacity or unwillingness of the Court's state enemies to act together in their proposals to cripple it, the great nationalist decisions of the Marshall Court would have been as impotent as the one in Worcester v. Georgia (1832). Worcester majestically upheld the supreme law against the state's despoliation of the Cherokees, but President andrew jackson supported Georgia, which flouted the Court. Even Georgia, however, condemned the south carolina ordinance of nullification, and several state legislatures resolved that the Supreme Court was the constitutional tribunal to settle controversies between the United States and the states.
The Court made many unpopular decisions that held state acts unconstitutional. Fletcher v. Peck, which involved the infamous Yazoo land frauds, was the first case in which the Justices voided a state act for conflict with the Constitution itself. Martin v. Hunter's Lessee, which involved the title to the choice Fairfax estates in Virginia, was only the first of a line of decisions that unloosed shrill attacks on the Court's jurisdiction to decide cases on a writ of error to state courts. In McCulloch the Court supported the "monster monopoly," the Bank of the United States chartered by Congress, and held unconstitutional a state tax on its Baltimore branch. In Cohens the Court again championed its supreme appellate powers under section 25 of the Judiciary Act of 1789 and circumvented the eleventh amendment. In sturges v. crowninshield (1819) the Court nullified a state bankruptcy statute that aided victims of an economic panic. In green v. biddle (1821) the Court used the contract clause when voiding Kentucky acts that supported valuable land claims. In osborn v. bank of the united states (1824) it voided an Ohio act that defied McCulloch and raised the question whether the Constitution had provided for a tribunal capable of protecting those who executed the laws of the Union from hostile state action.
When national supremacy had not yet been established and claims of state sovereignty bottomed state statutes and state judicial decisions that the Court overthrew, state assaults on the Court were inevitable, imperiling it and the Union it defended. Virginia, the most prestigious state, led the assault which Jefferson encouraged and spencer roane directed. Kentucky's legislature at one point considered military force to prevent execution of the Green decision. State attacks were vitriolic and intense, but they were also sporadic and not united. Ten state legislatures adopted resolutions against the Marshall Court, seven of them denouncing section 25 of the 1789 Act, which was the jurisdictional foundation for the Court's power of judicial review over the states. In 1821, 1822, 1824, and 1831 bills were introduced in Congress to repeal section 25. The assault on the Court was sharpest in the Senate, whose members were chosen by the state legislatures. Some bills to curb the Court proposed a constitutional amendment to limit the tenure of the Justices. One bill would have required seriatim opinions. Others proposed that no case involving a state or a constitutional question could be decided except unanimously; others accepted a 5–2 vote. One bill proposed that the Senate should have appellate powers over the Court's decisions.
Throughout the 1820s the attempts to curb the Court created a continuing constitutional crisis that climaxed in 1831, when Marshall despondently predicted the repeal of section 25 and the dissolution of the Union. In 1831, however, the House, after a great debate, defeated a repeal bill by a vote of 138–51; Southerners cast forty-five of the votes against the Court. What saved the Court was the inability of its opponents to mass behind a single course of action; many who opposed section 25 favored a less drastic measure. The Court had stalwart defenders, of course, including Senators daniel webster and james buchanan. Most important, it had won popular approbation. Although the Court had enemies in local centers of power, Americans thrilled to Marshall's paeans to the Constitution and the Union and he taught them to identify the Court with the Constitution and the Union.
A perceptible shift in the decisions toward greater tolerance for state action also helped dampen the fires under the Court in Marshall's later years. The coalition that Marshall had forged began to dissolve with the appointments of Justices Smith Thompson, john mclean, and Henry Baldwin. Brown v. Maryland (1827), martin v. mott (1827), american insurance company v. canter (1828), weston v. charleston (1829), craig v. missouri (1830), and the cherokee indian cases (1832) continued the lines of doctrine laid down by the earlier Marshall Court. But the impact of new appointments was felt in the decisions of Ogden v. Saunders (1827), willson v. blackbird creek marsh company (1829) and providence bank v. billings (1830). In Marshall's last decade on the Court, six decisions supported nationalist claims against seventeen for state claims. During the same decade there were ten decisions against claims based on vested rights and only one sustaining such a claim. The shift in constitutional direction may also be inferred from the inability of the Marshall Court, because of dissension and illness, to resolve charles river bridge v. warren bridge, mayor of new york v. miln, and briscoe v. bank of kentucky, all finally decided in 1837 under Marshall's successor against the late Chief Justice's wishes. Before his last decade the only important influence on the Court resulting from the fact that Republicans had a voting majority was the repudiation of a federal common law of crimes.
What was the legacy of the Marshall Court? It established the Court as a strong institution, an equal and coordinate branch of the national government, independent of the political branches. It established itself as the authoritative interpreter of the supreme law of the land. It declared its rightful authority to hold even acts of Congress and the President unconstitutional. It maintained continuing judicial review over the states to support the supremacy of national law. In so doing, the Court sustained the constitutionality of the act of Congress chartering the Bank of the United States, laying down the definitive exposition of the doctrine of implied powers. The Court also expounded the commerce clause in Gibbons v. Ogden (1824), with a breadth and vigor that provided the basis for national regulation of the economy generations later. Finally, the Court made the contract clause of the Constitution into a bulwark protecting both vested rights and risk capital. Fletcher supported the sanctity of public land grants to private parties, encouraging capital investment and speculation in land values. new jersey v. wilson (1812) laid down the doctrine that a state grant of tax immunity constituted a contract within the protection of the Constitution, preventing subsequent state taxation for the life of the grant. dartmouth college v. woodward (1819) protected private colleges and spurred the development of state universities; it also provided the constitutional props for the expansion of the private corporation by holding that a charter of incorporation is entitled to protection of the contract clause. The Marshall Court often relied on nationalist doctrines to prevent state measures that sought to regulate or thwart corporate development. Just as national supremacy, judicial review, and the Court's appellate jurisdiction were often interlocked, so too the interests of capitalism, nationalism, and judicial review were allied. Time has hardly withered the influence and achievements of the Marshall Court.
Leonard W. Levy
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