PART IV. NATIONAL VERSUS

SECTIONAL INTERESTS

CHAPTER VIII

THE GROWTH OF A NATIONAL CONSCIOUSNESS

"THE ERA OF GOOD FEELING "

tution, 1816

The following extracts from decisions of the Supreme 59. The Supreme Court, rendered by Chief Justice Marshall and Justice Court and Story, in the cases of Martin vs. Hunter's Lessee (1816), the ConstiMcCulloch vs. Maryland (1819), and Gibbons vs. Ogden 1824 (1824), illustrate how judicial interpretation of the Constitution stretched the meaning of the simple language of its clauses, much to the alarm and indignation of the "strict constructionists" of Jefferson's following.

The Constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by "the people of the United States." There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact. The Constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions, for the powers of the states depend on their own constitutions; and

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the people of every state had the right to modify and restrain them, according to their own views of policy and principle. . . .

The government, then of the United States, can claim no powers which are not granted to it by the Constitution. . . . On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms. . . . The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers. . . . [It] was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages. . . . It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter. . . . Hence its powers are expressed in general terms. . . .

...

It is a mistake that the Constitution was not designed to operate upon states in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed on the states. . . . When therefore, the states are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the states are, in some respects, under the control of Congress. . . it is certainly dif ficult to support the argument that the appellate power over the decisions of state courts is contrary to the genius of our institutions. . . .

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate . . . are constitutional.

If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their Constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the States. If the States may tax one instrument employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house. . . . This was not intended by the American people. They did not design to make their government dependent on the States. . .

The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. . . . We are unanimously of the opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. . . .

The acts of New York must yield to the laws of Congress; and the decision sustaining the privilege they confer, against a right given by a law of the Union, must be erroneous.

This opinion has been frequently expressed in this Court, and is founded as well on the nature of the government as on the words of the Constitution. . . . The nullity of any act inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law; ... and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.

Thomas Jefferson, in a letter to his friend Thomas Ritchie, protests against what he considers a dangerous usurpation of power by the Supreme Court!

Monticello, Dec. 25, 1820

The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a coördination of a general and special government to a general and supreme one alone. This will lay all things at their feet, and they are too well versed in the English law to forget the maxim boni judicis est ampliare jurisdictionem.1 . . . Having found, from experience, that impeachment is an impracticable thing, a mere scare-crow, they consider themselves secure for life; 2 they skulk from responsibility to public opinion. . . . An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning. A judiciary law was once reported by the Attorney-General to Congress, requiring each judge to deliver his opinion seriatim [in order] and openly, and then to give it in writing to the clerk to be entered in the record. A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government. . . .

I hope our political bark will ride through all its dangers; but I can in future be but an inert passenger.

I salute you with sentiments of great friendship and respect. Thos Jefferson

1 "It is the business of a good judge to extend his jurisdiction." 2 Jefferson is here alluding to the case of Supreme Court Justice Samuel Chase of Maryland, one of the signers of the Declaration of Independence, and a very ardent Federalist, who was impeached by the Republican House in 1804-1805 for his unblushing partisanship on the bench. He was acquitted. In a letter to James Pleasants, December 26, 1821, Jefferson suggests that the Supreme Court judges be appointed only for a six-year term, "with a re-appointmenability by the President with the approbation of both houses," impeachment being "a bugbear which they fear not at all."- Jefferson, Writings, ed. P. L. Ford, Vol. X, pp. 198-199.