by Rob Natelson
One of the most enduring myths in American constitutional history is that Chief Justice John Marshall was a judicial activist whose decisions are good precedent for the modern federal monster state.
Marshall was the fourth chief justice of the U.S. Supreme Court (third, if you don’t count John Rutledge, a recess appointment who was never confirmed). He served from 1801 until 1835. In the popular literature, Marshall is usually presented as a judicial activist who adroitly used the law to further federal power and the views of his own Federalist Party.
Among other things, he is accused of—
*   Inventing in the case of Marbury v. Madison (1803) the doctrine of judicial review—that laws contrary to the Constitution are void. He thereby, it is said, appropriated huge power the Founders did not want his court to have.
*   In McCulloch v. Maryland (1819), turning the Necessary and Proper Clause into a vast reservoir of federal power.
*   In Gibbons v. Ogden (1824), laying the foundation of the regulatory state by, in the words of Justice Robert Jackson, “describ[ing] the Federal commerce power with a breadth never yet exceeded.â€Â (Wickard v. Filburn, 1942).
We’ll see in a minute why these charges are made. But Marshall was innocent of all of them.
First, a little background: Marshall was not merely important as Chief Justice. He was also a leading spokesman for the Constitution in the 1788 Virginia ratifying convention. So he well knew what the ratifiers did—and didn’t—understand the Constitution to mean. Also, while some writers seem to assume that Marshall made up law as he went along, if you actually study the jurisprudence of his time, you find that Marshall’s conclusions are almost always on target.
So what are the facts about each of the charges above?
*   Marshall didn’t “invent†judicial review. It already was a well-accepted aspect of American law when Marshall announced the unanimous court decision in Marbury. Judicial review dated back to colonial times, when American laws in violation of Magna Carta or of the colonial charters (the “constitutions†of the colonies) were understood to be void. One distinguished researcher has found over 30 reported cases after Independence and beforeMarbury in which American courts applied, or recognized, the rule of judicial review. There also were repeated references to judicial review during the debates over the Constitution, with almost everyone favoring it. As for the charge of a power grab: In his 34 years on the court, Marbury was the only case in which Marshall struck down a federal law as unconstitutional.
*   Marshall’s treatment of the Necessary and Proper Clause in McCulloch v. Maryland is widely misunderstood by people who (a) don’t know the law of the time, (b) haven’t read the entire opinion, and/or (c) don’t know that two of the words Marshall used—“convenient†and “appropriateâ€â€” had narrower meanings in his time than they have today. Marshall himself explained the decision in a subsequent series of op-eds, where he acknowledged that the Necessary and Proper Clause is not a grant of power at all, but an interpretive guide.
*    Gibbons v. Odgen is often appealed to, as Justice Jackson did, for a very broad reading of the “commerce†component of the Necessary and Proper Clause. Under this reading, the Necessary and Proper Clause allows Congress to regulate any economic activity “substantially affecting†interstate commerce: agriculture, mining, manufacturing, heath care, insurance, medical marijuana—in fact, the entire economy.
However, Gibbons did not even mention the Necessary and Proper Clause. The primary holding of Gibbons was that navigation was within the prevailing legal definition of “commerce†for constitutional purposes—a decision that, under the original understanding of the Constitution, was clearly correct. Some of the Court’s dicta (extraneous language) added that in some circumstances commerce (including navigation) within state boundaries might be so tied up with interstate commerce that Congress could regulate it as well. But when Marshall addressed other aspects of the economy, it was to say that they were outside of Congress’s power. He specifically mentioned “health laws of every description†as being reserved exclusively to the states.
So those who use Gibbons to argue for the constitutionality of federal control of manufacturing, agriculture, land use, or health care are twisting some of Marshall’s words and omitting others.
Why is Marshall so often painted as a screaming activist?
There are two reasons:
1. Many have had personal reasons for painting Marshall that way. His political enemies, such as Thomas Jefferson, certainly did. In more modern times, the big-government types who dominate the law schools certainly do: They want to enlist Marshall to justify their own constitutional agendas.
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2. Few people who make the claim about Marshall’s activism today actually have studied the law of Marshall’s time or have checked the contemporaneous meanings of the words he used. In fact, my guess is that many of them have never read an entire Marshall decision. Instead, they have read the skewed, chopped-up versions appearing in law school books, edited for content by liberal professors.
If you want to get a genuine feel for the kind of judge John Marshall was, read  Federalism & Separation of Powers: “Health Laws of Every Descriptionâ€: John Marshall’s Ruling on a Federal Health Care Law, in which Dave Kopel and I use Marshall’s own words to show how Marshall would have ruled on the constitutionality of Obamacare.
In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/
I don't read Ogden, for example, so innocuously.
Here is one portion of the opinion, for which I will offer a few points:
"The object of inspection laws is to improve the quality of articles produced by the labour of a country, to fit them for exportation, or, it may be, for domestic use. They 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 everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. 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., are component parts of this mass."
First, at issue, was a state-granted monopoly to navigate state-chartered waters – something that was undoubtedly within the state's jurisdiction (from a geographic perspective). The issue, of necessity, was whether some type of purely intrastate activity might affect interstate commerce and thereby, intrude on Congress' plenary power to regulate it.
The opinion speaks of exceptions to Congress' authority in terms of state laws which are aimed to promote local inspection, quarantine and health policies – and even purely intrastate commerce itself. But anyone ought to realize that any one of these measures could be used by a state to easily thwart Congress plenary power over interstate commerce. For example, what if a state enacts a law that provides a quarantine period of 6 months for bananas? What if a state determines that blankets from Georgia are too likely to contain a dangerous virus, such that onerous barriers to introduction into its jurisdiction ought to be implemented?
It can easily be seen that, just like the New York monopoly, the state, if it really had plenary power over articulably "local" or "domestic" concerns, could engage in all manners of activities designed to accomplish what Marshall and friends refused to permit in Ogden.
What if, for example, New York had granted a monopoly for purely internal reasons, such as Marshall suggests would be allowed – i.e., regulating purely internal commerce within the state? If New York wanted to insure that all steam ships carrying cargo from one port in New York to another port in New York were exclusively chartered under the monopoly granted to Fulton, it would have a hard time doing so if foreign steam ships could come in and pick up local contraband designed to go from one state port to the next.
It is the opposite of Raich, where the Court said it did not want to play games of taking Raich's word for it that she was not introducing her weed into interstate commerce. Rather, the Raich Court held that the only way to effectively allow Congress to regulate interstate commerce in marijuana was to prohibit it everywhere. If Marshall meant what he said in his assertion that states had plenary power over their own internal commerce, then, clearly, the shoe ought to fit on the other foot, as well.
I don't think Marshall would have allowed that shoe to be on the other foot. The gist of Ogden seems to be that if it "affects" interstate commerce, Congress' power is preemptory.
Further, Marshall says Congress authority reigns within any place within the state's jurisdiction. He dispels the notion that interstate commerce begins and ends at the borders. Well, how far does it go? Does it extend to loading docks of departure in warehouses? Does it extend further than that – to the assembly lines of production? Does it extend yet further – to the unpacking of raw materials to be placed on the assembly lines?
The Ogden opinion is not just one that expands the inquiry into mere geography. It also expands the inquiry, naturally and logically, to the temporal chain of events involved in acquisition, production and subsequent distribution. Marshall's inquiry, by its own reasoning, has to be, "Does the activity affect interstate commerce?" There is no way around it. He fails to give any bright line rule, and this is because his reasoning is inept and incapable of producing such a rule. And, of course, we have since learned that everything we do is part of the House that Jack Built.
Just to be up-front regarding the above, I am aware of that portion of the quote, which states: "They act upon the subject before it becomes an article of foreign commerce or of commerce among the States, and prepare it for that purpose."
The question becomes "When does the subject become an article of foreign commerce?" What we know is that it is at some point before and after it crosses the state's line. If XYZ Corp. makes widgets from components A and B, intending to ship them out of state, and if component A is made within the state to be sold to XYZ Corp., is component A an article of foreign commerce?
What would Marshall hold if the state passes a law that says all widgets made in this state shall include component A's manufactured by Fulton & Co. (the effect of which, if valid, would destroy the local market for component A's made by an out-of-state competitor)?
I honestly do not know.
Some good work as to what Professor Randy Barnett concludes "regulate" meant in the late 18th Century. One scholars work, of course…but very thorough. Additionally, Pauline Maier provides some very specific examples of states charging other states for importing and exporting goods in her book "Documentary History of the Ratification of the Constitution." Delaware, for example, thought the Constitution was very advantageous because it eliminated the fees imposed by Pennsylvania for use of its ports for imports and exports of Delaware's goods.
http://www.bu.edu/rbarnett/Original.htm
Abstract:
"The U.S. Supreme Court, in recent cases, has attempted to define limits on the Congress's power to regulate commerce among the several states. While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of "among the several States" and "To regulate" also supports a narrow reading of the Commerce Clause. "Among the several States" meant between persons of one state and another; and "To regulate" generally meant "to make regular"–that is, to specify how an activity may be transacted–when applied to domestic commerce, but when applied to foreign trade also included the power to make "prohibitory regulations." In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade."
Mr. Natelson:
Thanks you for the information on Justice Marshall, like many others I had wrong placed blame of judicial activism where it may not have belonged.
Don't be so quick to accept what one man writes, on Marshall or on the US Constitution.
As to Marshall, there are plenty of noted individuals who have quite a different opinion of him:
http://www.lewrockwell.com/dilorenzo/dilorenzo182…
http://www.lewrockwell.com/orig11/smith-scott9.1….
Please note the qualifier used, "where it 'may' not have belonged.
Jeff Matthews: One of the ironies of Gibbons is that Marshall's reading of the Commerce Clause may have been too NARROW, not too broad. Specifically, the imposition of duties to fund inspection laws for exported products would have been considered regulating foreign commerce" at the Founding, and Marshall's statement to the contrary shows how narrow he considered the commerce power to be.
Remember that Marshall's "affects" language—the language relied on for apologists for the monster state—was pure dicta. Moreover, they are reading it wrong because they are not familiar with the jurisprudential background. Marshall is assuming application of the then-prevailing law of principal and incidents, under which regulation of some intrastate commerce might be incidental to regulation of interstate commerce—a point based on long-settled law.
Note that Marshall was speaking of only of intrastate COMMERCE, not other activities, and he did not say that "affect" was sufficient to create incidence—only that it was necessary to do so (which was admitted by counsel for the prevailing party in oral argument.)
That this is Marshall's meaning is made clear both in the examples he cites in the case of activities outside the congressional commerce power (including inspection and health laws) and in his public writings on the subject..
Yes. Thanks for the response. I don't mean to suggest that Marshall was, himself, a big statist. What I do note is that his language is so inartful that it shows 2 things: (1) He could not properly articulate the limit of the power, and (2) By not capably articulating such a limit, he leaves a back door open for further "ad hoc" expansion. Thus, while Marshall might have been a great guy, his limited ability to express himself in precedent (not magazine articles or treatises) worked as an invitation for others to expand on the power using the reasoning that he, himself, employed.
The language he used undeniably leaves open the questions surrounding when something becomes the subject of interstate commerce. It's akin to the question of when does a non-criminal act (buying fertilizer) become a criminal conspiracy (to blow up a building)? In the conspiracy/planning laws, we equally see hoards of cases that leave many people aghast and wondering just how far the doctrine will go.
Rob M:
Mr. DiLorenzo’s view of Hamilton is correct, but of Marshall is not. Calhoun, whom Mr. DiLorenzo cites in his post, would not have liked Marshall because Calhoun, like modern “progressives,” was trying to make the Constitution into something it was not.
Unfortunately, Marshall always has been an easy target because his work was technical and sometimes hard to understand and because as a sitting justice his ability to defend himself in the popular press was limited.
BTW: When I began my researches into Marshall, I had a vaguely negative feeling about him, too. The facts forced met to change my mind.
Rob Natelson – - the battle between the Federalist and anti-Federalist views of the Constitution and our government has been going on for a very long time. Your declaration that a professor is correct or not, does not make it so. I've read your book. – - – I also have read the many books of Prof Tom DiLorenzo (and took a course from him & discussed Hamilton and Marshall with the professor). I have also read several books by Judge Andrew Napolitano and by Prof Tom Woods. These noted individuals hold quite different views regarding Marshall than you do. They also hold a different view regarding the relationship between the states and the central government. They Don't believe that the states are nothing but an administrative convenience in the Constitution. – -
The Federalist viewpoint has brought us to the condition we are in now – - – with an over sized, over reaching & destructive central government. Unfortunately, many conservatives have been lead down the wrong road. Here's an article by Tom Woods on this misdirection. He mentions Marshall, but doesnt go deeply into him given the limitation of space. A debate between you an Prof Tom Woods on the role of the states versus the central government as outlined in the Constitution, and on nullification would be very interesting:
http://www.imaginativeconservative.org/2011/07/am…
Thank you for your reply – - an interesting viewpoint that offers something to explore and investigate further
Although I tend to agree with Rob Natelson on most points, I have to disagree on the impact of Marshall's opinions, resulting from the ways he wrote them. He is correct about Marbury v. Madison, but not about McCulloch v. Maryland or Gibbons v. Ogden. He is making the case that subsequent readers are misconstruing Marshall, but a jurist is responsible for what people take from his sloppy writing, even if it is not what he intended. He furnished generations of sophist lawyers language they could twist, in ways he could have anticipated. It was not that he did not receive counterarguments that could guide the ways he wrote the opinions. His lack of caution in that is clearly willful and damaging. For more see my commentary on those cases at constitution.org and at constitutionalism.blogspot.com
Interesting perspective, Jon, thanks for taking a few minutes to stop by.
This entire subject is totally new to me, however, so I am intrigued to say the least about your position that a "jurist is responsible for what people take fro his sloppy writing"
My gut instinct tells me that this should never be the case, and I would be interested in what principles you base this on. And if Rob is still checking comments, maybe he can offer some insight on this as well.
Yes. Jon Roland made the point I tried to make – only he did so more succinctly. Where I will differ with Jon, if there is room for difference, is that I don't see any better way to articulate the principle (at least as relates to Ogden, since that is the one I've most recently read). I don't know what could have been said differently to "properly" construe the clause.
This is one of the puzzling limits to "our" Tenther cause. We can see how the process went amok, but we can't suggest anything that would have proven much better, In other words, we can spot the disease, but we can't effectively prescribe the cure. However, our cause still has a salient purpose and can result in a series of steps in a correcting direction.
We need to face a couple of irrefutable points. One, the Constitution was not masterfully written. Two, courts, by design and intent, actively make law. Both of these points need to be accepted in order to intelligently start working toward a better design.
"My gut instinct tells me that this should never be the case, and I would be interested in what principles you base this on."
Stare decisis. The linguistics and reasoning laid down by a previous authority are supposed to be followed by subsequent ones. The subsequent ones will study every word, phrase and comma, and if you fail to express yourself accurately, you create a strong potential for misunderstanding.
This problem was not unique to Marshall. It constitutes the Achilles' heel of all law-making.
To this exact point, I will go one further than Jon Roland. The framers are to blame. After all, they wrote the first document and laid forth the initial principles. It is undeniably all their fault. Look at everything that wound up open for discussion. (Just like in the article I just sent you on how to construe the phrase "the People.") Not to disparage the framers or anything….. I don't know that I could have written anything all that much better.
I think it is a convincing proposition that the framers did not intend the feds would (or ought) to get this far. But the process works a lot like the budget. Everyone that follows picks which parts they want to construe restrictively and which parts they want to construe liberally. After several decades, eventually, enough people have had their hands in the pie such that every part has been subjected to an expansive construction, and the whole thing inflates.
Crud. The auto-spam killed my latest comment. Can you restore it? I also hope Natelson wants to chime in on this particular topic.
In the link I posted above to the article excerpt by Tom Woods there is also a link to his full 9 page article that goes further into Marshall. Prof Woods viewpoint is quite the opposite of Mr Natelson's. (As are the viewpoints of Prof DiLorenzo and Judge Napolitano.)
– - A jurist may argue that it wasnt his intention that his findings be interpreted as they later have by others. It has also been argued by some, that the Federalists drafted portions of the Constitution in such as way as to create such opportunities for creating a more 'energetic' central government as opportunities presented themselves. These were intelligent ambitious men, most of them trained in the law and in politics. Were these 'opportunities' in the Constitution by accident or design ? That argument has been waged since the time the document was being drafted. It has also been argued that jurists like Marshall have done everything possible to take advantage of such openings and to pry them further apart – - – I either case, the final results are the Leviathan central government – bankrupt, intrusive, & over reaching – that we have to deal with today.
The failure, if it can be called that, was not so much of the Framers, who did the best they could under difficult circumstances, but of their immediate successors for failing to adopt clarifying amendments when court decisions started to drift away from original understanding, and that in part a failure of the founders to pass on that original understanding through legal commentaries. In particular, Jefferson was urged to write such expositions, but he felt it was sufficient to let John Taylor of Caroline do it. Taylor tried, but his analytic and expository ability fell short, as can be seen in his writings on http://constitution.org . Madison felt (inadvisedly in my opinion) that he was still bound by his oath of secrecy concerning the proceedings at the Constitutional Convention, so that he could not publish his Notes on it until after both he and all the other attendees were dead, which did not occur until 1840, after much of the deviation had become entrenched.
About the only remedy for what might be called scary decisis is constitutional amendments. The Bill of Rights were clarifying amendments, as were the Reconstruction Amendments, except for the $20 rule of the 7th and the enforcement powers of the 13th, 14th, and 15th.
The problem is to find ways to word amendments so they target and overturn the key bad decisions or opinions, and the departures based on them. Randy Barnett has tried to do that with a few broad amendments that I don't think have the needed focus. I have instead tried to formulate amendments that are more targeted. See http://amend-it.com . But it is not easy. The framers of the 14th tried to hammer out the wording that would overturn Barron v. Baltimore and Dred Scott v. Sanford, but with the benefit of hindsight we can see the shortcomings of their wording. I'd like to think my wording would work better, but it is difficult to anticipate every way one's words can be misconstrued. The only way to avoid that is to educate one's successors to know how to get the court decisions back on track if they drift away.
I have tried to provide everything anyone might need on http://constitution.org , but I cannot afford to continue that effort without more financial support. The entire site could go down within a month if I don't receive at least $2000 in donations soon.
Correction. That link is http://amend-it.org
Rob tends to interpret the language of the period as though it was written with more care and skill than if was. That doesn't work. A historian has little choice but to sometimes read between the lines and find structure and meanings that were not clear to the writers of that era. Exegesis is a subtle art, and it is not always easy to cross the line into eisegesis.
You have to wonder why would people want to grant such control to the federal government to begin with. What were there motives?
Commercial, of course. Follow the money. One set of rules and regulations emanating from a central source is vastly more efficient to commercial interests. This efficiency has both benefits and detriments to consumers, but we've seen the detriments grow disproportionately.
If you were AT&T or Merck, would you want to lobby the legislatures, governors and regulators of 50 states, or of just one nation?