Search Results

This chapter examines the great newspaper debate over the broader, long-range significance of McCulloch v. Maryland that took place between William Brockenbrough and Spencer Roane who were critical of it and the defense of the opinion in a series of anonymously published essays written by Chief Justice Marshall. It also treats the relationship between Cohens v. Virginia and the problem of national corporations. In addition, it discusses John Taylor and Thomas Jefferson's opposition to Marshall's opinion and how all this relates to the emerging issue of slavery.

This chapter discusses the legacy of Marshall's opinion. Marshall devised the discovery doctrine in 1823 to shore up the claims of Virginia militia bounty warrant holders to lands in the southwestern corner of Kentucky. The weapon he thus forged for them was seized by expansionist Georgians and wielded against Native Americans throughout the eastern United States. The reformulation of the doctrine he engineered in Worcester v. Georgia proved impossible to sustain. Johnson was too important to remove. In 1835, Jackson appointees took control of Marshall's court and revived the Johnson formulation.

This chapter presents a summary of the preceding chapters. John Marshall did not foresee that the doctrine he developed would be used to support the removal of the southeastern tribes. When given his first real opportunity to do so in Worcester v. Georgia, he reversed himself, a reversal the Court subsequently ignored. The discovery doctrine survived and it facilitated Indian removal. More than 180 years later, the doctrine would still be cited to support the assertion or retention of European-derived rights to indigenous lands, not only in the United States.

This chapter discusses Chief Justice John Marshall's opinion in Johnson v. M'Intosh. John Marshall had two implicit objectives in mind when he drafted the opinion: to facilitate a favorable settlement of the claims of the Virginia militia warrant holders and to soften Virginia's opposition to the court. To accomplish these ends, he recast the question pleaded by the Johnson parties and engaged in questionable historical exposition to resolve it.

This chapter discusses how Chief Justice Marshall anticipated that questions might arise as to why he ventured so far beyond the minimum rationale necessary to support the Court's finding that the Illinois and Wabash purchases were invalid. To forestall such inquiry, he attributed the “degree of attention” that he “ bestowed upon this subject” to “the magnitude of the interest in litigation, and the able and elaborate arguments” advanced by Harper, Webster, Winder, and Murray. It is argued that Marshall's true motives were mixed. Like others of his generation, his interests were not entirely divorced from his politics. His decision in Johnson reflected his institutional concern for the power of the Supreme Court and his personal concern to secure land grants to Revolutionary War soldiers.

This chapter analyzes the various arguments made in the case of McCulloch v. Maryland by the attorneys both for the 2 BUS and against it, as well as Marshall's famous decision. It also looks at James Madison's reservations about the decision as well as some hostile newspaper response, and the relationship of the decision to the ongoing debate over a federal program of internal improvements.

This chapter continues the discussion of the history of the Ninth Amendment and eventually takes it to the one place where no history of it can be found—the judicial opinions of Chief Justice John Marshall. It is argued that different people used the Ninth Amendment in different ways. Some read the amendment as significantly restricting federal power; others insisted that the amendment placed few if any constraints on federal power. But these are differences of degree, not kind. Every court and commentator who took a position on the Ninth Amendment in the initial decades of the Constitution—whether Federalist or Anti-Federalist or Democratic-Republican, nationalist or states' rightist, drafter or ratifier—all described the Ninth as echoing the same federalist principles as the Tenth. Rather than considering the original meaning of the Ninth Amendment, the chapter focuses on what happened to the original meaning of the Ninth Amendment.

This chapter examines the propriety of federal laws under the power most often invoked to justify restrictions on liberty: the power to regulate commerce among the several states. Courts are not empowered to disregard powers that are expressly enumerated in the Constitution, even those that violate the rights of the people. They are authorized only to interpret the meaning of these powers, and where this meaning is underdeterminate, to construe them in a manner that is consistent with original meaning and that would render their exercise as legitimate as possible. The chapter analyzes the federal power to regulate commerce by explaining what the Commerce Clause means. It also considers judicial interpretations of commerce during the period 1824–1935 and shows that the term “among the states” independently limits federal power with respect to commerce. Finally, it reviews John Marshall's arguments in Gibbons v. Ogden.

This chapter discusses the arrival of scientific archeology to India in the person of Mortimer Wheeler. The chapter discusses the distorting effects of colonialism on our knowledge of India. Using the archeology of Taxila and the Mt. Kailasa temple in Ellora, the chapter proposes a new way of approaching Hindu culture.

This chapter focuses on the Alien and Sedition Acts. The present chapter and the previous chapter on the Eleventh Amendment illustrate something generally missed—or misrepresented—about republican constitutional theory in the early republic. The so-called compact theory of the Constitution, the idea that the Constitution represents a compact between the states and the national government, is often presented as having emerged out of the proslavery ideology of the 1830s and viewed in opposition to the (entirely) more reasonable theories of Chief Justice John Marshall. This school of constitutional history places the initial seeds of southern secessionist theory in the naive hands of James Madison and Thomas Jefferson, who embraced the inflammatory language of states' rights and interposition in their Virginia and Kentucky Resolutions. According to this view, compact theory is a post hoc political invention that departs from the original understanding of the Constitution and that arose years after the founding as part of a political effort to displace the Federalist Party in the election of 1800.

This chapter examines the US Supreme Court's decision in Osborn et. al. v. The Bank of the United States (1824). It also treats developments in the state of Georgia which culminated in another US Supreme Court decision at the same term: The Bank of the United States v. The Planters' Bank of Georgia (1824) in which John Marshall delivered an opinion that contradicted in an important way the position he had taken in the McCulloch and Osborn cases.

Alexander Hamilton and Aaron Burr became defined, as men, in the presence of violence. For both of them, military experience brought a sudden eminence. At the end of the War for Independence, Burr was a hero and Thomas Jefferson was not, the latter's unheroic status stemming from his failed wartime governorship of Virginia. In December 1777, George Washington's defeated army, with Burr, Hamilton, and John Marshall in its ranks, dragged itself into winter quarters on a windswept ridge between a little creek valley where an ironworks had been, Valley Forge, and the bluffs overlooking the Schuylkill. In the 1800 presidential election, Burr did not negotiate arrangements with the Federalists and lost; Jefferson did, and became president.

Thomas Jefferson's charges against the character of Aaron Burr were to be placed before judge and jury in a courtroom in Richmond, Virginia, in March and April 1807. Three of Jefferson's Virginian kinsmen were to take key roles in settling it. The judge was John Marshall, Chief Justice of the United States. The foreman of the grand jury was Representative John Randolph of Roanoke. A cousin, Edmond Randolph, formerly Attorney General of the United States, was one of Burr's attorneys. The then current Attorney General, Caesar Augustus Rodney, had achieved that eminence on January 20, 1807. When Burr was finally brought to trial on May 22 of that year, Rodney's appearance against him was remarkably brief and tepid. James Wilkinson was there as star witness against Burr. It was important to recall to everyone in the courtroom who Justice William Paterson was and enough of the circumstances of the Whiskey Rebellion to permit a comparison of those before Paterson to those before Marshall. Jefferson's case fell apart; for the third time Burr was acquitted of treason.

This chapter offers a reassessment of the Supreme Court’s work in McCulloch v. Maryland (1819) in light of the previous chapter’s claim that Republicans revived the national bank on the strength of the Coinage Clause. After observing that Congress’s power (or lack thereof) to charter a national bank was not originally part of the dispute between the institution’s Baltimore branch and the state of Maryland – it was added to the Court’s agenda at the last minute – the chapter finds that Republicans’ Coinage Clause argument from 1816 was mentioned in neither McCulloch’s oral arguments nor Chief Justice John Marshall’s decision for the Court. Insofar as Marshall’s decision rested (at least in part) upon claims about the meaning of the Necessary and Proper Clause, what emerged in 1819 was a gap between political and judicial understandings of the national bank’s constitutionality. The chapter then unpacks the implications of this fact, concluding that while the Court’s holding was “majoritarian” (i.e., it aligned with the preferences of the Republican majority), its reasoning was surely not (i.e., Marshall’s commentary on the meaning of the Necessary and Proper Clause could only serve to exacerbate divisions over the scope of federal power within that majority).

This chapter explores the role that fiction played in the early republican project of building American nationhood. Many eighteenth- and nineteenth-century American statesmen and jurists—including such prominent thinkers as John Adams, Thomas Jefferson, John Marshall, and Joseph Story—were avid readers of fiction. The vast majority of the novels they read were written by English authors; moreover, many of those authors were women. For founding-era thinkers such as Adams and Jefferson, novel reading provided a way for Americans to participate in transatlantic culture and to hone a republican moral sensibility. For the early-nineteenth-century jurists Marshall and Story, fiction offered an opportunity to engage with emotions such as sympathy and to participate in a public sphere that brought men and women together, as both authors and readers, in a conversation that connected politics, law, and literary culture. These producers of legal theory were also consumers of fiction, gentlemen of letters who immersed themselves in female novelists' work not as a means of escape but because those novels offered insights into what they regarded as crucial political questions of individual sentiment and national character.

Alexander K. Marshall was the younger brother of US Supreme Court chief justice John Marshall. A gentleman farmer, he practiced law more as a passion than a profession. Despite a workman-like career as an appellate lawyer, he left a slender legal legacy. However, his fertile fields in Mason County, Kentucky, are still tilled, and the mailbox outside the home still bears the Marshall name.

This chapter addresses the doubts that surround the very notion of the gentleman-statesman. This chapter is thus a biographical-historical account of George Washington and the gentleman-statesman, a reminder that this is still a familiar type—although more difficult to gleam and appreciate due to the shadows cast by theories surrounding these ambitious figures. The chapter weighs in on the modern interpretation of Washington by American historian Douglass Adair, author of the influential essay, “Fame and the Founders.” This essay argued that the greatest deeds of the seminal American founders were due to their love of fame. In this confrontation of Adair's characterization of Washington, the chapter relies on John Marshall's Life of Washington, which is argued to better capture the statesman's motives.