Today in 1801, John Marshall was appointed the Chief Justice of the United States by President John Adams. Nominated at a time of severe partisan discord, Adams hoped Marshall’s appointment would help to counteract the influence of the Jeffersonian Republicans and prolong the political influence of the Federalist Party beyond the confines of electoral consequences.

Under the Marshall Court, the Supreme Court determined that federal judges could ostracize the executive office for taking a different constitutional position regarding the exercise of his own duties than the judiciary (Marbury v. Madison), that politically corrupt land purchase agreements were mutually binding contracts (Fletcher v. Peck), that Congress’ role to regulate commerce between states extended to goods transported on navigable waters (Gibbons v. Ogden), that Indian nations that were previously treated as sovereign entities for the purposes of treaties had no standing in a suit against a state (Cherokee Nation v. Georgia), that the state governments had no authority to decide whether federal acts applied to internal state-level disputes (Martin v. Hunter’s Lessee), and that the Necessary and Proper Clause allowed for the implementation of a host of unspecified, unremunerated, implied powers (McCulloch v. Maryland).

In summary, his stewardship over the federal judiciary rendered the Constitution nugatory and radically expanded the powers of the general government.

In Compact of the Republic, I wrote that John Marshall was one of two figures that were most instrumental in eroding the originally ratified conception of the United States Constitution as a compact between states. Instead accepting the Constitution and general government as the creature of the states, he introduced the idea that the general government should coerce and control its creators. Although a cousin of Thomas Jefferson, their political philosophies could not have been more divergent.

It was in 1819, for the substantive time, that Marshall erroneously declared that the Constitution was ratified by “one American people” in the aggregate rather than the people of the several states. This mistaken deduction, which set in motion an influential justification for the consolidation of national power, flew against his own arguments at the Virginia ratification convention in Richmond. There, Marshall assisted in the effort to portray the document as a compact between states, wherein the general government would not possess any powers not expressly delegated to it.

Marshall’s predilection for national power, embrace of the implied powers doctrine, and inclination to elevate the authority of the federal judiciary did much to threaten the originally ratified Constitution. For their long-lasting negative ramifications, I consider both Fletcher v. Peck and McCulloch v. Maryland to be among the five worst Supreme Court opinions in American history.

Dave Benner

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