Parent Category: 18th Century History Articles
Category: Law and Order
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Marshall's nationalistic philosophy has several components. These components are the powers the government must possess if it is to be a government of law. 

These components are: 
· federal supremacy 
· loose construction 
· the power of contracts 
· independent federal courts, especially the supreme court.

We shall examine these components one by one using the major opinions of the Marshall court. Note that each component is interwoven with each other in the opinions and in the fabric that produced the nationalistic philosophy of John Marshall.

The first component that will be examined is the independence of the courts. The focus here will be on the Supreme Court. When Marshall came to the court in January of 1801, the court was held in contempt. John Jay, the first chief justice, resigned because the court system was notoriously inadequate and weak.

In 1801, the congress passed a judiciary act to correct some of the problems. Marshall was appointed as the new chief justice and he intended to make the court independent of the other branches of government as well as public emotionalism. The duty of the court according to Marshall in most of his major opinions was to uphold the constitution and the laws thereof.

In some of those opinions he stated what the duty of judges were, what jurisdiction the court had and what powers were enumerated or given to it by the Constitution Of The United States Of America, 1787. As stated before, the constitution is the supreme law of the land, and it is the judicial departments duty to tell what is the law.

Marshall in Marbury v. Madison, has this to say about the duty of the court. "The province of the court is solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." In other words, what Marshall is saying, is that the courts are only to protect the constitution and the people and to stay out of politics.

The courts main duty then is to uphold the law. In this case, however Marshall expressed his political philosophy when he, in so many words, put the presidential and congressional branches of government in their proper place. The court explained the duties of the other branches of government in accordance with the constitution in this opinion as well.

The duty of the judges, says Marshall in Fletcher v. Peck is that, the question, whether a law is in consensus or repugnant to the constitution, is always, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.

An Act of the national government could be declared null by the court, there would remain much difficulty in saying to what extent those means must be applied to produce effect. "The principle asserted is, that one legislature is competent to repeal any act which a former legislator was competent to pass; and that one legislature cannot bridge the powers of a succeeding legislature. The correctness of this principle, so far as respects general legislation, can never be controverted. But, if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by most absolute power." (Fletcher v. Peck)

This is judicial review in action. This is an important tool for the court to use for gaining the independence necessary to maintain the national government set forth in the constitution. In Marbury, it was established that the court could declare unconstitutional a federal law, passed by congress.

In the case of state laws, the precedent was set in Cohens v. Virginia. Marshall first establishes jurisdiction of the supreme court in matters concerning this type of case. Jurisdiction of the courts of the Union comes in two classes of cases. In the First, their jurisdiction depends on the character of the cause, whoever may be the parties.

This class comprehends all cases in the law and equity arising under this constitution, the laws of the United States, and treaties made or which shall be made under their authority. This clause, according to Marshall, extends the jurisdiction of the court to all the cases described, without exception in its terms and without any regard to the condition of the parties involved.

If there be any exception, it is to be implied against the express words of the article. The second class, the jurisdiction depends entirely on the character of the parties. It comprehends "two or more states and between a state and another states citizen or subjects."(Cohens v. Virginia) The American states and the American people, have believed close and firm union to be essential to their liberty and to their happiness.

It was by experience, that the people have learned that this union cannot exist without a government for the whole; and through the same experience they have learned that this government would "be a mere shadow, that must disappoint all their hopes, unless, invested with large portions of that sovereignty which of this opinion, and thus instructed by experience the American people, in the conventions of their respective states, adopted the present Constitution." (Cohens v. Virginia)

If there is any doubt if it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration, that ‘this constitution, and the laws of the United States, shall be bound thereby; anything in the constitution or the laws of any state to the contrary not with standing.’ This is the authoritative language of the American people, and with the American States. (Cohens v. Virginia)

More on Marshall's Judicial Mind

  1. The Judicial Mind of John Marshall: Nationalism
  2. Marshall's Nationalist Philosophy
  3. John Marshall's Judicial Mind: Federal Supremacy
  4. John Marshall's Judicial Mind: The Contract between the People and Their Government