Introduction to American Government
Midterm Examination Review
An Overview of John Marshall's Supreme Court Opinions
McCULLOCH v. MARYLAND, 17 U.S. 316 (1819)
Note Chief Justice John Marshall's use of textual interpretation of the necessary and proper clause to uphold congressional authority to create a national bank. The framers discussed a national bank at the Constitutional Convention and on balance opposed it. Marshall argued that Congress could pass reasonable legislation to achieve the great purposes of the Constitution, provided the Constitution did not textually forbid it. Marshall deferred to Congress and did not substitute his substantive views of which constitutes appropriate legislation for those of Congress.
GIBBONS v. OGDEN, 22 U.S. 1 (1824)
GIBBONS v. OGDEN, 22 U.S. 1 (1824), copy 2
Chief Justice Marshall upheld the supremacy of national law over conflicting state action. He held that the Commerce Clause supported the federal navigation law under which Gibbons had obtained a license to operate his ferry service between New Jersey and New York on the Hudson River.
Marshall adopted a broad construction of the Commerce Clause supported by his use of textual judicial review. As he had done in McCulloch v. Maryland he used what he would call a strict construction of the Constitution, repeatedly referring to constitutional text, to uphold open-ended congressional authority under its Article I enumerated powers.Marshall recognized that congressional authority under the Commerce Clause did not extend to activities solely with state boundaries:"As Congress has no power to regulate the internal commerce of any State, none of its regulations can affect so much of the exclusive grant, as [22 U.S. 1, 89] restrains vessels which are only used within the States; nor can it give to any man a permission to carry on any steam boat navigation, which, in its beginning, and ending, and course, is entirely confined within the waters of the State: for instance, between New-York and Albany; on Cayuga lake; on lake Ontario, and the St. Lawrence, from Niagara to Ogdensburg. "
Marshall interpreted the word "among" in the Commerce Clause according to the 18th century dictionary definition, namely that "among" means "within" not "between" He concluded:" The power of regulating commerce extends to the regulation of navigation. The power to regulate commerce extends to every species of commercial intercourse between the United States and foreiga nations, and among the several States. It dees not stop at the external boundary of a State. But it does not extend to a commerce which is completely internal. The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself. The power to regulate commerce, so far as it extends, is exclusively vested in Congress, and no part of it can be exercised by a State"Alexander Hamilton, in Federalist 33, discussed the necessary and proper clause. He suggested a political, not a judicial, solution should Congress abuse it constitutional authority:
"But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify."
February 4-14, Civil Liberties and Civil Rights