John Marshall and The Birth of a Nation

For most of us who have been brought up from first grade repeatedly pledging allegiance to the flag of one nation under God with liberty and justice for all, it must come as a surprise to read through the Constitution which established the United States of America without once coming across the word "nation," (any more than the word "God").

It took many years after the ratification of the Constitution in 1787 for the people's leaders and the people as a whole to decide whether the new republic formed on American soil was indeed a nation in the traditional sense like England or France or China, or whether it was a cluster of what the State of South Carolina in 1861 called "confederated republics." Thomas Jefferson wrote in 1804, when he was President of the United States, that "whether we remain in one confederacy or form into Atlantic and Mississippi confederations, I believe not very important to the happiness of either part."

This was a subject of continuous bitter and passionate partisan debate, and a definitive answer binding on all Americans was not given till after torrents of blood were spilled in the Civil War. But it began to be answered, the balance began to shift to the side of nationhood, long before that. The crucial moment of shift can perhaps be pinpointed in a few months in the year 1803 when two exceptional men who detested each other took separate and independent actions which in the long run would ensure that the United States would indeed be an indivisible nation.

They were the two most important figures in the federal government that year. Thomas Jefferson was the third president and John Marshall was the fourth Chief Justice of the United States.

In February of that year Marshall handed down the decision in a case called Marbury v. Madison in which for the first time the Supreme Court overruled the rest of the government by declaring a law passed by Congress unconstitutional. Six months later Jefferson deliberately broke what he was morally certain was the law of the land by purchasing Louisiana from Napoleon Bonaparte, who had no right to sell it.

And nothing would ever be the same afterward.

Jefferson is of course one of the best known figures in American history, his face is on every nickel, his Memorial stands in white marble splendor across the water from that of Lincoln. John Marshall, on the other hand, is little more than a shadowy figure, vaguely remembered and revered for having written opinions familiar only to lawyers and historians. In recent years, perhaps coincidental with renewed political debate about the role and functions of the Supreme Court, three thoughtful and well-researched books on Marshall have appeared, and they have helped to bring him back into the light where he belongs, a towering many-talented and very appealing man who played a decisive role in shaping the politico-economic system we are living under today.

Marshall came from the same Virginia stock as Jefferson, they were in fact second cousins, and they had much in common: keen intelligence, a gift for making memorable phrases, a passionate devotion to the country they had helped to bring to birth, a dislike for fancy dress and organized religion. But their characters were as far apart as their political opinions.

Unlike Jefferson, the fastidious slave-holding aristocrat born to enough wealth to allow him spend his whole life in public service, Marshall, born the oldest of thirteen children in a rude frontier community, was a self-made man who had worked hard to establish himself as a successful lawyer before President Washington, his old commander, virtually ordered him to run for a seat in congress in 1799.

Jefferson, the great apostle of democracy (another word which does not appear in the Constitution), was a masterful politician as well, but he had no taste for the rough-and-tumble which is one of the constituents of daily political life. He felt most at home in a book-lined study, he hated crowds, he hated speeches, and he established a tradition which would last more than a century of delivering his State of the Union addresses at the opening session of each Congress, not in person as Washington and Adams had done, but in writing, to be read by a clerk.

Marshall, on the other hand remained all his life something of a frontiersman, tall, rangy, plainspoken, self-reliant. Before being appointed to the Supreme Court by President John Adams he had had wide-ranging careers in wide-ranging places. He had been a front-line soldier in the Revolutionary war, lawyer, land speculator, legislator, diplomat, pamphleteer, Secretary of State.

Unlike the reclusive Jefferson, Marshall was an outgoing, gregarious personality who enjoyed people and could get on with everybody, as perfectly at home in a rowdy tavern as in a law court or an elegant Paris salon. Jefferson disapproved of his "lax lounging manners"; meaning his racy talk and hard drinking. On election day he was always the candidate offering the best whisky to the voters. There were no fancy airs about him, and he saw nothing unusual, as every one else in his social class did, about doing the grocery shopping for his ailing wife. He was famous for his slovenly dress, and they liked to tell the story of how once an elegant young man in the Richmond market-place asked the Chief Justice of the United States to carry the plump turkey he had just bought to his house, and flipped him a coin for his services, which the Chief Justice cheerfully pocketed.

A Polish aristocrat who happened to be in Philadelphia in 1798 noted with admiring amazement that when Marshall, after being hailed as a national hero and lavishly feasted by enthusiastic crowds, took off for Washington he bought a ticket on a public coach like any ordinary passenger, and when he found there were no seats left inside, he climbed up beside the driver.

He had become a national hero when, as one of three American envoys sent to Paris to negotiate a treaty with the French revolutionary government, he had run up against the French minister of foreign affairs, Citizen (ex-Bishop, soon to be Prince) Talleyrand who informed him through three emissaries code-named X Y and Z that he could get his treaty if he suitably greased Talleyrand's palms. He rebuffed them in blunt terms which were later summed up by one of his supporters in the memorable sound-bite, Millions for defense but not one cent for tribute.

Their contrasting political opinions must have been at least in part shaped by their contrasting personalities. Jefferson, who preferred to live on a hilltop surrounded by gardens and pastures, always lived beyond his means, was always in debt, and naturally tended to side with the poor farmers who formed the bulk of the population and were always being squeezed by the moneyed interests of the cities. Like them, Jefferson hated banks. Marshall the hard-headed lawyer and land-holder had learned to value stability, the sacredness of contracts, and sound money. His years at Washington's side in the war, and especially the ghastly starvation winter at Valley Forge when the local farmers preferred to sell their produce to the British in Philadelphia who had real money to pay for it rather than the paper put out by the Continental Congress, had left him with a lifelong conviction that a country needs a central government with a vision that can see beyond petty local interests.

His political affiliations were with the conservative, upper-class Federalist Party, and he believed that only citizens with some substantial property should be allowed to vote. But he was not an extreme Federalist like his colleague Justice Samuel Chase, the crusty Yankee who in 1803 told a grand jury that "the modern doctrines that all men in a state of society are entitled to enjoy equal liberty and equal rights have brought mighty mischief upon us, and I fear that it will rapidly progress until peace and order, freedom and property, shall be destroyed."

Marshall did believe firmly in the Federalist position that the Constitution had authorized the formation of a strong federal government. This was the exact opposite of the Jeffersonian conviction that the government had no right to do anything which was not literally spelled out in the Constitution.

Who was to decide in any particular case what the Constitution really meant? For Jefferson, it was up to each individual State. For Marshall this was recipe for anarchy, it could only be done by an independent judiciary, what Alexander Hamilton had called "the least dangerous branch" of the government. Because judges had nothing to gain from their actions, they alone could be impartial umpires. And the heart of the judiciary was the Supreme Court.

In those early years of the republic the Supreme Court was surrounded by none of the awe, had none of the authority, it enjoys today. It sat only for a few days every year. The justices were all housed under one roof in a ramshackle tavern in the ramshackle city of Washington which was only beginning to rise out of the malarial swamps.. When the Capitol was built, the architect could find no better room for the court than a dark cramped space tucked under the monumental staircase that led up to the halls of Congress.

It was a situation made to order for Marshall, who could use his charm and his good taste in wine and whisky as much as his formidable intellect and legal learning to win over the support of his colleagues. In thirty-five years on the bench he wrote only one dissenting opinion. In one thirteen-year period between 1811 and 1824, the court issued 457 judgments, 437 of them were unanimous, and the great majority of these were written by Marshall. .

The justices had a rule that in their tavern conferences they would only have wine when the weather was bad. Marshall had the habit of asking one of his colleagues, "Brother Story, go to the window and see if it does not look like rain." And if Story reported that it was a beautiful sunny day he would reply, "All the better, for our jurisdiction extends over so large a territory that the doctrine of chances makes it certain that it must be raining somewhere."

President Adams had appointed Marshall chief justice shortly after his defeat for re-election of 1800. but he asked him to stay on as Secretary of State till the new administration took over on March 4. Adams went on to appoint a number of other officials, including one William Marbury who was named justice of the peace in the District of Columbia. The nomination was approved by the Senate a few hours before the inauguration of the new president. Marbury's commission was duly made out and signed, and Marshall as Secretary of State affixed the great seal of the United States to it. But in the rush of events leading up to the transfer of power, he neglected to send it off, and it was lying on his desk when the new Secretary James Madison took over.

The new President, Jefferson, was convinced that all appointments made by a lame duck president were null and void, but he was afraid of stirring up a political storm if he tried to get rid of Marshall. Marbury was easier game.

The President simply directed Madison to file the paper away in his desk, and Marbury was out of the job he had been anticipating. He went to court to force the government to deliver his commission to him, and the result was Marbury v. Madison, the case with which most histories of American jurisprudence begin.

Marshall handled this potentially explosive case with the intellectual power and the political adroitness which were to mark his whole long career on the bench. He always narrowed his judgment down to the very precise point at issue in the case. He was always rigorous and exact in his reasoning, and often managed to draw out of the case, which might be about nothing more significant than an sale of land or of lottery tickets, a general principle which would change the course of American life. In Marbury, a case which stirred up violent political passions, he managed to find an elegant solution which gave something to both sides.

The court's decision was that Marbury had been illegally deprived of his commission by the government, but that the Supreme Court had no power to order the government to deliver it, because the section of the Judiciary Act of 1789 which authorized the court to act in a case like this was unconstitutional. Marbury thus got his vindication, and could have started his case all over again in a lower court, but he was content not to pursue the matter further. The Republicans were delighted that Marbury was out of a job, and that what they regarded as a dirty trick played by John Adams had been thwarted. In their excitement they failed to notice that Marshall had quietly effected a revolution. The Supreme Court had for the first time invoked the principle that judges could overturn a law of the land. It would be long after Marshall's death before the Court would strike down another law passed by Congress, but the precedent was set, and precedents count for everything in the law. In our time every one takes it for granted that is the Supreme Court, and not the Congress (as it is in England, where the House of Commons is supreme), or the Politburo (as it used to be in the Soviet Union), nor the legislatures of Virginia or Kentucky (as would have been the case in Jefferson's ideal republic), which has the last word on whether any law passed by Congress is really valid. This is what is now called "judicial review" and is standard operating procedure.

It was a very daring thing to claim to do in 1803, for the Constitution nowhere states expressly that the Supreme Court has any authority to impose its interpretation on the President or the Congress. Lower courts had been making this claim from time to time, and the idea was winning acceptance, but there was violent opposition as well. Every one could remember the case in Rhode Island (Treyett v. Weeden), where a court presumed to overturn a law denying a jury trial to citizens arrested for refusing to accept payments in the paper money issued by the state of Rhode Island. The judges were hauled before an angry state legislature and roundly abused, and at the next election they were all booted out of office. for disregarding the will of the people.

There was no such outcry over Marbury . Jefferson himself was pleased with the decision at the time, though he was furious with Marshall for having presumed to criticize his actions, He completely failed to see what Marshall had put over on him. The reason may simply be that he had other things on his mind.

Uppermost of these was New Orleans, which he wanted to buy for three million dollars as a convenience to the farmers of Kentucky and Tennessee whose prosperity depended on the export trade through that port. Unexpected and unforeseeable events, like the battle of Trafalgar which wiped out Napoleon's dream of an overseas empire, caused him to be suddenly in possession of an agreement signed by his envoys in Paris buying not just New Orleans but the whole of the vast province of Louisiana for twenty-one million dollars. Napoleon, who was doing the selling was quite aware that he was offering the fledgling thinly-populated (it had fewer inhabitants than Ireland) American republic the chance to become a great power overnight, but he decided to overlook that. "Perhaps the Americans" he said, "may in two or three centuries be found too powerful for Europe, but my foresight does not embrace such remote fears." Besides, he needed cash for the European wars he was about to start.

Jefferson got the news on June 30 and in some ways it was the most pleasant news ever to surprise a president, a guarantee of peace and almost unlimited expansion and prosperity for the American people, at a bargain-basement price..

The only trouble with it was, that it was, in Jeffersonian terms, illegal. The more Mr. Jefferson studied the Constitution, the less he could find any authorization for such an act. And a central tenet of his political philosophy was that the federal government could not do anything that was not specifically authorized in the Constitution. The Constitution was a compact between sovereign states, and any one of these states, like Tennessee or Kentucky, had a perfect right to buy Louisiana, but not the federal government.

There was the further objection that it was illegal for Napoleon to sell it, forbidden by solemn treaties and oaths.

Jefferson knew that clever lawyers like John Marshall could spin sophistic arguments to prove that the clause in the Constitution giving the federal government the right to make treaties could be interpreted to imply all sorts of things. But if it could imply that it was legal to annex hundreds of thousands of square miles of territory without even a pretense of consulting the wishes of its inhabitants, then other phrases in the Constitution might be twisted into implying anything at all. That majestic document would be turned, said the President, into a blank sheet of paper on which you could write anything you wanted. "If [the treaty-making power] is boundless," he wrote, "then we have no Constitution."

He also knew that if he didn't grab Louisiana when it was offered to him, his career would be permanently ruined, and his party's as well, for the people were overwhelmingly in favor of grabbinb it. He could not postpone a decision, because Napoleon might change his mind at any minute. So he did what other great leaders of nations have done before and since. He found that the principles which were rigid and unchangeable when he was out of power became somewhat more supple when he was actually running the government. After wrestling for six weeks with his conscience, on August 12 he wrote two confidential letters saying that it would be better while Congress was debating the treaty with France to pass the whole question of constitutional scruples sub silentio, meaning to sweep it under the carpet. Congress duly held its tongue and to no one's surprise voted to add Louisiana to the United States, or as Henry Adams puts it in his admirable History of the United States during the Administrations of Thomas Jefferson, "for the first time in the national history all parties agreed that the government could govern."

John Marshall had a few months before slipped in the proviso that it could govern only within limits defined by the Supreme Court..

Jefferson hoped that his action in the matter of Louisiana was a single slip that would soon be forgotten and that the "good sense of our country will correct the evil" if it should produce ill effects. Subsequent events, however, would show that the stable door was wide open, and the horse of implying anything at all was loose in the land.

Only thirteen years later, Congress was ready to take a gigantic leap into the future by voting to spend several million dollars on "public improvements," -- building roads and digging canals and dredging rivers. Jefferson's successor James Madison virtuously vetoed the bill. "The power to regulate commerce among the several states," he said, "cannot include a power to construct roads and canals, and to improve the navigation of water-courses in order to facilitate, improve, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms...To refer the power in question to the clause 'to provide for the common defense and general welfare' would be contrary to the established and consistent rules of interpretation...Such a view of the Constitution would have the effect of giving to Congress a general power of legislation."

Madison's veto stuck, despite the pointed question by Senator Calhoun, "On what principle then can the purchase of Louisiana be justified?" But the tide was running against strict construction and states rights. It would take a long time, but people wanted those roads, along with a host of other services and in the long run they were willing to turn to the national government to get them.

To get them, as it turned out, they needed the kind of "broad construction" that Marshall put on the Constitution, something that allowed the United States to grow into the great commercial-industrial-capitalist nation it became instead of the Jeffersonian dream of a league of hardy virtuous rural communities, a sort of super-Switzerland.

Case after case, year after year, Marshall kept whittling away at Jefferson's favorite theory of states rights. Jefferson could only look on in horror as black-robed unelected justices, appointed for life, repeatedly thwarted the will of the people's elected representatives, like a :"subtle corps of sappers and miners constantly working underground." It was in vain that Jefferson and his successors appointed good Republicans to the Supreme Court as seats became vacant. Under the driving intellect and all-pervasive charm of the Chief Justice, they ended up by regularly voting with him on the nationalist side..

Jefferson ascribed some kind of diabolical power to Marshall, who seemed to be able to twist men's words and minds at will. "You must never give him an affirmative answer," he said once, "or you will be forced to grant his conclusion. Why, it he were to ask me if it were daylight or night, I'd reply, 'Sir, I don't know, I can't tell.'"

Through all the last twenty years of his life, Jefferson saw his party win all the electoral battles, till it became for several years the only political party functioning. But he seemed to be losing the war. Marshall and his court gained steadily in prestige as they established themselves as the final arbiter over Congress and the States and the President alike.

In 1805, Aaron Burr, author of the immortal phrase, "Great souls care little for small morals," who had been Vice-President in Jefferson's first term, was arrested on the Mississippi River with a boatload of adventurers on what he claimed was a hunting trip, but which Jefferson was convinced was part of a plot to break up the union and create an independent empire of his own. When Burr was tried for treason before Justice Marshall, his lawyers demanded certain papers in Jefferson's files, and the court issued a subpoena. Jefferson was outraged and refused to hand over the papers, saying they contained state secrets and besides a President was not bound to be at the beck and call of a mere judge. Marshall then issued a judgment which still reverberates in today's newspaper headlines, that the President of the United States in not above the law and has to accept a subpoena like anybody else; though he realistically conceded that as President he might have more important things to do and deserved special treatment. In the end, after threatening to get Marshall thrown off the bench, Jefferson sent over the papers but saved what face he could by refusing to take formal receipt of the subpoena.

When the jury handed in a verdict of Not Guilty, Jefferson was convinced that "only the tricks of judges had stood between Burr and the gallows." Marshall returned the compliment by calling Jefferson a congenital liar.

From then on case after case followed, dealing mostly with routine matters, but sometimes inaugurating changes in the very nature of the country.

In all these cases Marshall followed two fundamental principles. One was that it was up to the courts to protect the rights of the individual in the face of the massed powers of government, notably the right to keep and enjoy his own property. The other was to establish the extent of federal authority over the states. There were minefields in each direction, and Marshall proved extraordinarily adroit in stepping through them.

In 1810 he received the case of Fletcher v. Peck, involving litigation which had been dragging on for fifteen years about the Yazoo lands, a plot of some 35 million acres comprising most of the present states of Alabama and Mississippi. These lands had been sold by the legislature of the State of Georgia to a syndicate of land speculators for 500,000 dollars, a price of one and a half cent per acre. When it was later learned that all but one of the legislators had made financial profits on the deal, the angry voters threw them all out at the next election and chose new ones who repealed the act authorizin.g the sale, ordered the original copy of it burned in a public square, and took the land back. In the meanwhile hundreds of more or less innocent private individuals had bought pieces of the land, and were now suing to get their money back. The court decided that the motives of the legislators who had voted the original act were irrelevant. The state of Georgia had made a valid contract with the purchasers, and the law required the state of Georgia pay up.

In this case as in Marbury, everything worked out eventually to everybody's satisfaction. The U. S. Congress a few years later voted five million dollars to pay off the Yazoo claimants and took over the land itself, eventually making a very handsome profit on sales. And Marshall had established once and for all the precedent that when a state makes a contract, it is required, like any one else, to keep it.

In 1819 he took up another epoch-making case, Dartmouth College v. Woodward. The College was owned and run by a self-perpetuating board of trustees under a charter which had been granted in 1769 by the British colonial authorities, whose powers had been taken over by the State of New Hampshire. Fifty years later a political squabble caused the state legislature to, in effect, take over the college from its trustees. The trustees sued and Marshall agreed with them. The original charter, he held, was a contract between the government and a private corporation, and under Article l,. Section 10 of the Constitution, no state had the right to pass "any law impairing the Obligation of Contracts." The State had no more right to break its contract with a corporation than with an individual, a corporation indeed was something like an immortal individual. This decision had the long-range effect of keeping corporations safe from capricious interference by legislators. Corporations were still a relatively new and untested form of social organization. By the end of the 18th century American states had issued charters for only 310 corporations, and only eight for them were for commercial purposes (the rest having religious, educational or political aims). After the Dartmouth College decision, the number of corporations would rise exponentially till by the end of the 19th century they dominated the American economy.

In the same year 1819, Marshall wrote the unanimous decision McCulloch v. Maryland, which has been described as the most important case in the history of the Supreme Court .because it definitively established that federal law took priority over state law.

The second Bank of the United Stats, chartered by Congress in 1816, served as the repository for the public funds, had the right to issue bank-notes, and was exempt from state taxes. But it was basically a private institution serving ordinary bank functions, and as such it was in competition with banks chartered by the various States. The state of Maryland did not appreciate the competition, and levied a heavy stamp tax on all banks "not chartered by the legislature," meaning the Bank of the United States. Maryland argued that the federal government was created by the states, and that state law took precedence over federal law in every matter, such as banking, which was not specifically cited in the Constitution. Marshall, on the other hand, argued that the Constitution was not made by the states but by the people, that any act of the federal government which was not directly contrary to the Constitution was the law of the land, whatever a State, or the Supreme Court, might think of its merits. Coining the famous phrase, "The power to tax involves the power to destroy," he declared that the Maryland tax on a bank established by the U. S. Government was void.

In 1820, he struck another devastating blow at States Rights in the case of Cohens v. Virginia. The issue was whether the State of Virginia, acting under a provision in the state constitution, had the right to fine the brothers Philip and Mendes Cohen one hundred dollars for selling District of Columbia Lottery tickets in Norfolk, in competition with Virginia's own Lottery. The brothers appealed, and the state legislature haughtily told them that "a sovereign and independent state is not liable to the suit of any individual, nor amenable to any judicial power, without its own consent."

The case nevertheless came before the Supreme Court. Judicious and even-handed as always, Marshall allowed Virginia to win on a technicality, (the DC lottery was a purely local affair, and its tickets should not have been put on sale elsewhere). But, over howls of outrage from Virginia judges and politicians, ("the Judiciary power," said one of them, "with a foot as noiseless as time and as greedy as the grave, is sweeping to their destruction the rights of the States") he laid down the momentous dictum that "the constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void."

Gibbons v. Ogden, in 1820, was "the emancipation proclamation of American commerce," said a legal historian. Marshall's decision struck down the law by which the state of New York granted a monopoly on using its waters to the line of steamboats belonging to Robert Fulton the inventor and his partner. a law which had been used to restrain a rival line owned by Mr. Gibbons from making make the crossing between New Jersey and Manhattan. This, said the decision, was in flagrant violation of the constitutional provision giving Congress the power to "regulate commerce... among the several states."

All the immense regulatory apparatus of the modern American government had its inception in this judgment.

The effect of all these cases was to prevent the states from ever erecting economic walls around their borders. If America moved so rapidly from an overwhelmingly agricultural society to the highly urbanized industrialized and mobile one it would become, it is in good part owing to the way the Marshall court cleared away efforts to put obstacles in the way of the free flow of trade and people across state boundaries. No wonder a recent biographer of Marshall has as its subtitle, Definer of the Nation.

Of course Marshall did not do it all by himself. A famous phrase by a later humorist and political philosopher says that the Supreme Court follows the election returns. Not in any narrow partisan sense, but the court cannot help being influenced by the general opinion of the people. The people in the early 1800's regularly gave large majorities to Mr Jefferson and his Republicans because they liked and trusted them more than they did the "rich and well-born" who according to Federalists like Alexander Hamilton were uniquely qualified to govern them. But they also liked the Federalist idea that the United States was a nation, and this might appeal as naturally to Republican judges as to John Marshall. The people were already beginning to think more and more in national terms, less as Virginians or Rhode Islanders, more as Americans.

There were things that Marshall could not do. Rock-ribbed conservative that he was, he held many views and held to many principles that were well in advance of his time. He believed in the equality of women. He detested slavery. But as a judge bound to the laws of the land, there was not much he could do about either of these convictions in the America of his time. He did make a ruling, in the case of Boyce v. Anderson, which caused violent resentment among his fellow Virginians and slaveholders generally. The case was brought by a Mr. Boyce who had shipped some slaves on a Mississippi steamboat. The boat caught fire and the slaves drowned. He sued on the grounds that his slaves were legally freight, in which case the steamship company was totally liable for the loss, while if the slaves were legally people he could collect damages only by proving negligence. Marshall's opinion held that "a slave has volition and has feelings...He cannot be stowed away as a common package. In the nature of things, and in his character, he resembles a passenger, not a package of goods."

He was also indignant about the fate of the Indian nations who were being dispossessed of their land to make room for the westward movement. The Cherokees in Georgia had done their best to adjust to the new way of life by abandoning the hunting life for agriculture and writing a constitution for themselves based on that of the United States. The State of Georgia was nevertheless determined to get rid of them. Marshall was powerless to intervene, but he did strike a blow by agreeing to take the case of Worcester v. Georgia in 1833. Samuel Worcester was a missionary who was arrested for breaking the law which forbade a white man to live among Indians without a license. In one of this most eloquent decisions Marshall ruled that the Georgia statutes relative to the Indians were "repugnant to the constitution, laws and treaties of the United States," and ordered the release of Worcester.

The state of Georgia simply ignored the order. and President Andrew Jackson is reported to have said, "Well. John Marshall has made his decision, Now led him enforce it." It would be a long time before the American government or the American people as a whole would show much interest in the rights of Indians, and though Georgia eventually backed down to the extent of letting Worcester out of jail, the Cherokees lost all their land and had to embark on their long tragic march a thousand miles to the west.

Jefferson died on July 4 1826 on the 50th anniversary of the booming of the great bell in Philadelphia which had announced the adoption of the Declaration of Independence he had written. Marshall died in Philadelphia two days after the Fourth of July nine years later, and they rang the Liberty bell to mourn his passing. The bell cracked and has never been rung since.

The two men died unreconciled, each fearful of his country's future. Jefferson saw his beloved Union of self-reliant states being "pressed into one consolidated mass" by the decisions of the Marshall court. Marshall, watching the repeated electoral triumphs of the Republicans (who would soon be calling themselves Democrats), found himself yielding "slowly and reluctantly to the conviction that our Constitution cannot last. The Union has been prolonged thus far by miracles. I fear they cannot continue."

The country meanwhile was growing in population and wealth and self-confidence at a rate never before seen anywhere on earth.. And there was no doubt now that it was a nation. When the officials of the state of South Carolina announced in 1832 that they would not obey a tariff act passed by Congress because it was unconstitutional, President Andrew Jackson, who had been elected on a States Rights platform, informed them that once an act of Congress had been certified as constitutional by the Supreme Court, it had to be obeyed, and forcible opposition to it was treason..

Then as now newspaper editors and philosophers were regularly announcing that America had fallen on evil ways and must collapse the day after tomorrow. But the great machine of American government, operating on the lines laid down by Marshall in Marbury v. Madison and by Jefferson in the Louisiana Purchase, has gone lumbering on, and both men share equally in the credit for designing it.

Perhaps a nod of thanks should be saved for the two men who quite unwittingly enabled the machine to be set in motion in 1803, James Marbury and Napoleon Bonaparte.

©1998 Robert Wernick

Smithsonian Magazine, November 1998