The following is an opinion contribution and reflects the author’s views alone.
It is a common grievance of the modern political era that too much of American law is too deeply entangled with politics. We routinely accuse judges of harboring ulterior political motives, chastise legal interest groups for attempting to circumvent the political process, and appear to be in a state of perennial worry about the composition of the Supreme Court. Underlying this modern obsession with rescuing the law from the perilous clutches of politics is the conviction that this entanglement is a modern phenomenon — a perversion of the legal stoicism of less political yore. Nothing could be further from the truth.
The story of the American Constitution is a story of politics and partisanship. In fact, some of the first national factions were formed by people in relation to their positions on the then-proposed constitution. The Federalists, a group of citizens who largely believed in the irredeemability of the Articles of Confederation, held that the adoption of a new constitution with a more robust national government was critical. The Anti-Federalists, citizens who were generally satisfied with the status quo, believed that the Articles should be left alone, perhaps with some minor adjustments at the margins. The cleavage between these factions grew deeper as the work of the Constitutional Convention progressed. With the completion of the Constitution and its transmission to the states for ratification, the factions partook in an epic intellectual face-off over the future of the Republic, taking their battle stations along the contours of one question — whether the proposed constitution ought to become the supreme law of the land.
The eventual ratification of the Constitution did not quell partisanship but provided new grounds for its proliferation. Yes, the new constitution had been adopted; however, many interpretive questions lay open and unresolved in the nascent Republic, and open questions breed partisanship. The Federalists, in general membership still the supporters of the new constitution, constructed the document with relative breadth and believed it appropriate for the federal government to wield and exercise important powers. On the other hand, the Jeffersonian Republicans, with some notable exceptions, were largely composed of Anti-Federalists and others who took issue with the new constitution. Having failed in their original, absolutist opposition to it, they now took to construing it in a manner that would considerably weaken its provisions and ensure the frailty of the national government relative to its state counterparts.
The story of the early American republic is largely a story of this constitutional partisanship. And at the center of both stands the towering figure of John Marshall.
For his part, Marshall did not shrink from partisanship. The increasing factionalism of the polity seems to have bothered him on some level. However, given partisanship as the way of his political world, he engaged in it with great skill. Marshall’s own position in the constitutional politics of his time appears to have been primarily influenced by his service in the Continental Army. This experience exposed him firsthand to the deep and serious ills that plagued the old national government. The impotent Continental Congress, unable to raise revenue, pay soldiers, honor contracts, or muster reliable reinforcements, stunted the war effort to such a degree that the eventual victory was won in spite of its incompetence, not because of its efforts. Scarred by the horrors of the institutional ineptitude to which he, his men, and his hero, George Washington, were subjected, Marshall would spend much of his life’s work in defense of a relatively robust understanding of federal power. It is no secret that Marshall’s experiences under an ineffective national government helped form and solidify his jurisprudence and constitutional philosophy. What I argue in this essay is that those experiences had a distinct effect, not only on the substance of his jurisprudence, but, perhaps more importantly, on the manner in which Marshall approached and framed the constitutional questions of his time.
To Marshall, the proposed constitution was not simply an intellectual exercise in political theory. It was a desperately-needed solution to a ruinous and irredeemable status quo. This meant constitutional debates could not revolve around objections based solely in theory or principle. Rather, the two sides would have to engage over the powers of the federal government relative to its proper duties, obligations, and responsibilities. Marshall believed that it was proper for the federal government and its branches to have a robust set of well-defined powers in the realms in which it was necessary for the federal government to act.
The Genêt affair exposed the urgent necessity of having the president, and the president alone, represent the American people in foreign relations. Marshall’s response to the extradition of Thomas Nash dwelt in large part on the necessity of enabling the federal government, and the president in particular, to honor treaties and compacts into which the United States had entered with foreign nations. In his opinion for the Court in Marbury v. Madison, Marshall was concerned with three necessities, one per question posed: (1) the necessity of ensuring the validity of a commission signed by the president and sealed; (2) the necessity of the existence of legal recourse for one whose right had been violated; and (3) the necessity of judicial review to determine whether a statute contrary to the Constitution could be considered legitimate law. To Marshall, “Necessary and Proper” was not just a constitutional clause; it was the essence of his jurisprudence.
But, necessary on what grounds? The Constitution established a federal government of delegated and enumerated powers that could not legislate in every space under the sun. While the Jeffersonians wanted to construe those provisions as narrowly as possible, Marshall believed in the premise of the Constitution — that only those powers necessary for the federal government to possess in the course of properly managing national affairs had been made available to it. As such, depriving the government of constitutional authority by construing provisions as narrowly as the Jeffersonians would be to deprive the government of necessary and essential power. This was not to say that the federal government could claim every power as necessary and expect sanction from Marshall. He considered constitutional most federal actions pursued toward legitimate ends within the scope of the federal government’s realm of constitutional duty, provided the actions or ends were not themselves prohibited by the Constitution. Marshall’s understanding of constitutionality was so formed in part due to his belief that the powers granted the federal government were not only important and necessary for its fulfillment of legitimate functions and duties, but that going the Jeffersonian route would be to simply bring the new system, erected with painstaking care, closer to the failures of the Articles of Confederation.
Marshall recognized, somewhat exasperatedly, that every power, authority, and office could be abused and descend into some magnitude of tyranny. But, if the people were to be constantly skeptical of every aspect of government and cynical about every one of its actions, he argued, the country could hardly have a functioning government. The Constitution’s internal designs would keep this problem sufficiently at bay, but there was simply no avoiding the fact that there would have to be trust placed in the government with respect to those powers necessary to properly govern on a national scale. Proposals to the contrary would lead down the dark road of stateless anarchy.
Indeed, Marshall would have justifiably viewed the constitutional philosophy advocated by the Jeffersonian Republicans partly as evidence of bad faith. Here was a faction that had intensely opposed the entirety of the proposed constitution, sparing no effort in attempting to derail its ratification and adoption. It was now the same group that was advocating for an interpretive philosophy that would cripple its core elements. If Jefferson and his party truly believed the Constitution did as they claimed it did, why did they oppose it with such vehemence? They had lost the big battle over the Constitution and were now trying to hijack its provisions to get their way anyway.
Marshall’s understanding of the Constitution as a charter of necessities, and the constitutional philosophy he drew from that view, bear great weight and are important lenses through which to analyze the constitutional politics of his time. It is today an uncontested recognition that the system of government erected by the Articles of Confederation was a failure, principally for want of a national government with sufficient powers and operational breadth to manage the pressing affairs of a new nation. In the wake of this failed experiment with radical decentralization of power, the Federalists rightly came to view the new constitution as a course correction that balanced concerns of tyranny and impotence by delegating to the federal government only such powers as necessary to run a nation properly, while also dividing those powers among the three branches. These twin principles, federalism and the separation of powers, would guard against national encroachments of state and individual liberty. The powers granted the federal government were grounded in substance. The Congress had the authority to legislate on certain subjects and only those. Together with the Supremacy Clause of Article VI, the new constitution had a simple bottom line: where the federal government ruled, it would rule supreme; where it ruled not, it would rule not at all. This elegant line, however, raised more questions than it put to rest.
If there were substantive areas in which the federal government’s authority would be supreme, it would become all the more important to determine what those were and what kinds of questions and issues could be subsumed under them. The Constitution itself provided limited guidance on what the specific applications of its delegations to Congress would look like. The text contained a general list of congressional powers, and an authorization for Congress to adopt such means of effectuating its powers as would be “Necessary and Proper,” but there was very little that addressed how those powers could or could not be used in the pursuit of specific policy goals. Consequently, the constitutional politics of Marshall’s time largely revolved around two questions: (1) what specific powers the federal government had; and (2) which branch of the federal government, if any, wielded those powers. To answer these questions as Marshall would is to consider the necessity, broadly construed, of those powers for the functioning of the federal government and the branch to which they would make the most sense to belong. Each of the three departments of the federal government is entrusted by the Constitution with certain duties, responsibilities, and obligations. When a department is engaged in lawful pursuit of constitutional obligations, it would be sensible to defer to it on some questions of constitutionality relevant to its actions. Indeed, since each branch is, in effect, an office of trust under the Constitution, each branch has its own relationship with, and obligation to, the Constitution. It is this understanding of the federal government as a composite of three co-equal departments with independent constitutional responsibilities that must guide our inquiry into which specific powers belong in which branches when the Constitution is silent on the matter.
The paradigm of necessity through which Marshall understood the Constitution is a powerful tool with which to evaluate our constitutional politics, both in Marshall’s time and now. While Marshall’s intellectual rivals in his time believed in curtailing necessary powers, their modern counterparts have swung to the other extreme, with little regard for the principle of limited federal government. This has led to the rise of a massive centralized bureaucracy, unchecked legislative authority, and a breakdown of federalism and the separation of powers that have thus far preserved important individual rights from national encroachment. It appears that Marshall’s paradigm is as, if not more, relevant and important today as it was over 200 years ago. To judge the actions and claims of the federal government and its departments through the lens of necessity is to remain true to the first principles of American constitutionalism and preserve that sacred balance between tyranny on one extreme and impotent government on the other.
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