John Marshall, perhaps the greatest Chief Justice of the Supreme Court of the United States, died on July 6, 1835. As his life was coming to a close, he wrote Joseph Story, “I yield slowly and reluctantly to the conviction that our constitution cannot last.” Daniel Walker Howe, What Hath God Wrought: Transformation of America, 1815-1848, 439 quoting John Marshall to Joseph Story, Sept. 22, 1832, quoted in Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge, 2001), 386.
The Nullification Crisis had an impact on the jurisprudence of American law, changing the interaction of the federal government with the states.
In the face of the removal of Native Americans, the Cherokees turned to the federal courts for help.
John Marshall would serve as Chief Justice of the United States Supreme Court from 1801 to 1835 and had a lasting impact on the institution. More broadly, he shaped the development of policy in America.
While during the American Revolution, the judiciary was mostly forgotten, in the interest of controlling gubernatorial power by empower legislatures, that began to change during the 1780s.
The Supreme Court of the United States, led by Chief Justice John Marshall made a crucial decision in Dartmouth College v. Woodward in 1819. This decision resulted “in placing all private corporations under the protection of the United States Constitution.” Gordon Wood, Empire of Liberty, 466. The vast majority of corporations thus were “no longer exclusive monopolies,” but rather “[t]hey became private property belonging to individuals, not the state.” Id.
This development was a small key to open the big door of American commerce and capitalism. While countries in Europe were still monarchical and had antiquated systems that did not allow for privately held corporations, the United States Supreme Court ensured that America moved into the 19th Century with a system ready for innovation and entrepreneurship.
Over the course of the 19th Century, the Civil War notwithstanding, the ability of individuals to form their own corporations provided an incentive for success that would lead to widespread prosperity. While in other countries, the state had a piece of ownership in corporations, Americans had the privilege of private ownership at a time when that was uncommon.
Many of the developments in the early Republic have had reverberations over the past two centuries. Those developments sometimes began with small, humble steps, such as this holding by the Supreme Court. Those small steps have unquestionably aggregated to create a more prosperous society for America.
The Constitution, in combination with the Judiciary Act of 1789, created the three-tiered court system that is familiar to modern Americans. However, one of the defining features of the judiciary is the concept of judicial review. Judicial review is the doctrine that permits a court, such as the Supreme Court in Marbury v. Madison, to declare an act of Congress unconstitutional. See Gordon Wood, Empire of Liberty, 442. In 1803, Chief Justice John Marshall was the first to exercise this power of the Supreme Court, setting the precedent for future courts, particularly in the 20th Century, to declare acts of Congress unconstitutional. Id.
Thomas Jefferson declared the following year, in 1804, that granting the courts the power of judicial review “would make the judiciary a despotic branch.” Malone, Jefferson the President: First Term, 155. James Madison explained that judicial review “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.” Madison’s Observations on Jefferson’s Draft of a Constitution for Virginia, 1788, Papers of Jefferson, 6: 315.
Even lesser known Americans who believed the legislatures in the 1780s created unjust laws did “not agree that judges ought to have the authority to declare such legislation void.” Gordon Wood, Empire of Liberty, 444. One such American, Richard Dobbs Spaight, delegate to the Constitutional Convention from North Carolina stated that judicial review “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.” Richard Spaight to James Iredell, August 12, 1787, in Griffith J. McRee, Life and Correspondence of James Iredell (New York, 1857-1858), 2; 169-70.
Some believed that “the power of the judges alone to declare unconstitutional laws void was too extreme, too exceptional, and too fearful an act to be used against all those ordinary unjust, unwise, and dangerous laws that were nevertheless not ‘so unconstitutional as to justify the Judges in refusing to give them effect.'” Gordon Wood, Empire of Liberty, 446 quoting Farrand, ed., Records of the Federal Convention, 1: 97, 73. Thus, some congressmen in 1792 considering establishing a procedure for federal judges to notify Congress when they would declare a law unconstitutional. Gordon Wood, Empire of Liberty, 446.
It is notable that so many Americans were comfortable with this increasingly powerful judiciary, with the newly created tool of judicial review. Although judicial review was used in Marbury v. Madison, it would not be used again until the Dred Scott decision in 1857. Nonetheless, Americans began to associate the judiciary with being additional representatives of Americans’ collective interests. The fact that the judiciary began to assert itself in more drastic ways into the tripartite government system, combined with most Americans’ desire to have additional representation, permitted the judiciary to become a permanent part of American life.
Further, the importance of the creation of the doctrine of judicial review could hardly be understated. While some were uncomfortable with the idea of the future of democracy occasionally being in the hands of a few judges, it provided a more neutral, reasonable filter for legislation and acts of Congress. Undoubtedly, mistakes have been made and continue to be made by the judiciary, but most Americans would take comfort that as the decades and centuries have progressed, one bad court has been counterbalanced by a good court, leaving America to go down a conscientious path of moderation.