This doctrine was received by Jefferson and many of his followers with consternation.If the idea was sound,he exclaimed,"then indeed is our Constitution a complete felo de se [legally,a suicide].For,intending to establish three departments,co?rdinate and independent that they might check andbalance one another,it has given,according to this opinion,to one of them alone the right to prescribe rules for the government of the others,and to that one,too,which is unelected by and independent of the nation....The Constitution,on this hypothesis,is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.It should be remembered,as an axiom of eternal truth in politics,that whatever power in any government is independent,is absolute also....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."But Marshall was mighty and his view prevailed,though from time to time other men,clinging to Jefferson's opinion,likewise opposed the exercise by the Courts of the high power of passing upon the constitutionality of acts of Congress.
Acts of State Legislatures Declared Unconstitutional.-Had Marshall stopped with annulling an act of Congress,he would have heard less criticism from Republican quarters;but,with the same firmness,he set aside acts of state legislatures as well,whenever,in his opinion,they violated the federal Constitu-tion.In 1810,in the case of Fletcher vs.Peck,he annulled an act of the Georgia legislature,informing the state that it was not sovereign,but "a part of a large empire,...a member of the American union;and that union has a constitution ...which imposes limits to the legislatures of the several states."In the case of Mc-Culloch vs.Maryland,decided in 1819,he declared void an act of the Maryland legislature designed to paralyze the branches of the United States Bank estab-lished in that state.In the same year,in the still more memorable Dartmouth College case,he annulled an act of the New Hampshire legislature which infringed upon the charter received by the college from King George long before.That char-ter,he declared,was a contract between the state and the college,which the legisla-ture under the federal Constitution could not impair.Two years later he stirred the wrath of Virginia by summoning her to the bar of the Supreme Court to answer in a case in which the validity of one of her laws was involved and then justified his ac-tion in a powerful opinion rendered in the case of Cohens vs.Virginia.
All these decisions aroused the legislatures of the states.They passed sheaves of resolutions protesting and condemning;but Marshall never turned and never stayed.The Constitution of the United States,he fairly thundered at them,is the supreme law of the land;the Supreme Court is the proper tribunal to pass finally upon the validity of the laws of the states;and "those sovereignties,"far from possessing the right of review and nullification,are irrevocably bound by the decisions of that Court.This was strong medicine for the authors of the Kentucky and Virginia Resolutions and for the members of the Hartford convention;but they had to take it.
The Doctrine of Implied Powers.-While restraining Congress in the Mar-bury case and the state legislatures in a score of cases,Marshall also laid the judicial foundation for a broad and liberal view of the Constitution as opposed to narrow and strict construction.In McCulloch vs.Maryland,he construed generously the words "necessary and proper"in such a way as to confer upon Congress a wide range of "implied powers"in addition to their express powers.That case involved,among other things,the question whether the act establish-ing the second United States Bank was authorized by the Constitution.Mar-shall answered in the affirmative.Congress,ran his reasoning,has large powers over taxation and the currency;a bank is of appropriate use in the exercise of these enumerated powers;and therefore,though not absolutely necessary,a bank is entirely proper and constitutional."With respect to the means by which the powers that the Constitution confers are to be carried into execution,"he said,Congress must be allowed the discretion which "will enable that body to perform the high duties assigned to it,in the manner most beneficial to the people."In short,the Constitution of the United States is not a strait jacket but a flexible instrument vesting in Congress the powers necessary to meet national problems as they arise.In delivering this opinion Marshall used language al-most identical with that employed by Lincoln when,standing on the battle field of a war waged to preserve the nation,he said that "a government of the people,by the people,for the people shall not perish from the earth."
Summary of the Union and National PoliticsDuring the strenuous period between the establishment of American independence and the advent of Jacksonian democracy the great American experiment was under the direction of the men who had launched it.All the Presidents in that period,except John Quincy Adams,had taken part in the Revolution.James Madison,the chief author of the Constitution,lived until 1836.This age,therefore,was the "age of the fathers."It saw the threatened ruin of the country under the Articles of Confederation,the formation of the Constitution,the rise of political parties,the growth of the West,the second war with England,and the apparent triumph of the national spirit over sectionalism.
