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In McCulloch v. Maryland, Marshall explains what a state can and cannot do in relation to the federal government. The McCulloch and Cohens opinions declare a state law unconstitutional because the laws infringed upon the enumerated powers of the national government. The national government is supreme in areas given to it by the constitution and thus Marshall’s mind in these matters would lean towards nationalistic interpretations of the constitution.

This nationalism is centered on one hub, this hub being the federal supremacy issue. This issue is the second component in Marshall’s nationalistic philosophy. In the mind of Marshall, the states gave up certain powers to the central government as a safeguard for the people. The states then could not do certain things because the constitution explicitly states what the powers that the general government possess. In the opinions, the court says on sovereignty, first in McCulloch, a state cannot regulate the federal government.

The government of the Union, is, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. The government is a representative agent, acting for all of the people who have given their consent to be governed. The constitution and the laws made in pursuance thereof, is the supreme law of the land. The states and the people in those governments are sworn to uphold and protect the constitution of the United States by supporting it. (McCulloch v. Maryland)

In another case, Marshall explains the limitations of states. This case was Barron v. Baltimore. He said that the limitations upon the states are in accord with the general government it has no ruling upon state legislation. In other words, the states cannot impose upon the federal governments territory (area of jurisdiction) but it can act upon those areas not yet in the jurisdiction of the federal government or where only the state’s action is needed.

The governments "territory" is explained in the constitution and these are exclusive powers. Such as treaties, coining money etc.. Marshall says that the people of their respective states can change the constitutions of the states to further safeguard their protections, similar to the safeguard that the federal constitution offers.

The federal constitution has safeguards built in and if it needs to change, then amendments could be added to further the protection of the people from over encroachment of the general government. This is the same on the state level. The amendments were meant to guard from abuse of power of the federal government. The Amendments in the federal constitution contain no expression indicating an intention to apply them to the state governments. "This court cannot apply them."(Barron v. Baltimore)

In the McCulloch case, Marshall explains how and why the government operates the way, it should. The government should be provided with ample powers to execute its laws and duties that the happiness and the prosperity of the nation vitally depend. The powers given to the government are executed in the interest of the nation. Its execution by withholding the most appropriate means. Marshall also explains his view towards the question of sovereignty.

The original power of making laws in a sovereign power and if the government is restrained from creating a corporation to carry out its functions, on the single reason that this type of legislation is an act of sovereignty, there would be some difficulty in sustaining congressional authority to pass other laws to accomplish this duty. Sovereign powers are divided between the Union and the States.

Each is sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. Congress can only make laws which may have relation to the powers it has and only those laws may be passed that are ‘necessary and proper’ for carrying them out. Marshall then explains the word necessary as controlling the whole sentence of the clause.

Thus the word in the sentence, limits the right to pass laws for the execution of powers, which if they were not allowed to, the power given would be meaningless. Marshall then explains two types of power, One power is to create and preserve, and the second is a power to destroy. The power to destroy is in the hands hostile to the power to create. The power that is supreme must control, not yield to that over which it is supreme.

The explanation here is that, the states may well have the power to create and to preserve in matters of its own jurisdiction, but it does not have the power to destroy in matters of national or international concern. The American people did not design the federal government to be dependent upon the states.(McCulloch v. Maryland)

"When allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of generality, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the state appear, underwent change."(Gibbons v. Ogden)

So, Marshall explains in Gibbons v. Ogden. He was talking about the changeover from a government of confederation, under the articles, to a federal government of the constitution. Throughout most of Marshall’s opinions, there is a sense of the third component of his nationa1lism, broad constructionism. In the Gibbons case, Marshall explains the two types of construction.

These are broad and narrow. Our government has enumerated powers expressly given by the people but it also has implied powers of which are discovered through broad construction of the constitution. Marshall explains narrow construction as a determent to the people. Because, "narrow construction would cripple the government and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which construction is to be expounded.

The words used in the constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning; and a power to regulate navigation, is as expressly granted, as if that term has been added to the word ‘commerce’. It is a rule of construction, acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to expect from a granted power, that which was not granted that which the words of the grant could not comprehend."(Gibbons v. Ogden)

There is a place for narrow construction. This tool is brought to bear upon the government when it encroaches upon personal freedom of the people. An example of this is the Aaron Burr trial. Marshall said that there could be no constructive treason of the accused because the constitution explicitly states that treason is and how it is to be tried in the court of law. It was also used in the Marbury case. This time it was self-imposed upon the court. The situation was that the court had no original jurisdiction in the matter, save in a law passed by congress.

This law was the judiciary act of 1796. A section of this act gave the court original jurisdiction in this matter. In another case, the question was wether the fifth amendment applied to the states also. This was Barron v. Baltimore. In the opinion of the court it was held, that the fifth amendment only applied to the general government and not to the states because the states had their own constitutions. Those constitutions provided such limitations and restrictions on the powers of government.

The powers of the national government and its limitations were to be exercised on it. The fifth amendment only applies to the general government not to the state governments.(Barron v. Baltimore) Marshall’s intent for broad construction of the constitution is expressed this way. "If the legislative power of the Union can reach them (states), it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given." (Gibbons v. Ogden)

In Cohens v. Virginia, Marshall states the limitations of the government. "The general government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the constitution; and if there be any who deny its necessity, non can deny it authority."(Cohens v. Virginia)

Marshall goes on to explain that the government is a government of enumerated and implied powers. The states are limited to powers that are necessary on the local level. They are barred the powers that have national or international implications. In addition, state sovereignty is surrendered in many instances where this surrender benefits the people and where no other power is given to congress than a conservative power to maintain the principles of the constitution.

The maintenance of these principles in their purity, is certainly among the great duties of the government. One instrument is the judicial department. "[The Judicial department] is authorized to decide all cases of every description, arising under the constitution or laws of the United States. From this general grant of jurisdiction, no exception is made of those cases in which a state may be a party. We think a case arising under the constitution or laws of the United States, is cognizable in the courts of the Union, whoever may be the parties to that case."(Cohens v. Virginia)

The judicial department was established to decide disputes between states and individuals, and between states. Marshall’s view of the constitution was that it was framed for ages to come. It was designed to be flexible and no government should be so defective in organization, as not to contain within itself to make laws against other dangers than those that occur every day.

The people made the constitution a creature of their will, and lives only by their will and if the people so deem it, they can unmake it. Nevertheless, this supreme power to make or unmake, resides only in the whole body of the people, not in any sub division of them. (Cohens v. Virginia) This subdivision is the individual states. When states make laws, they must keep in mind that they are a functional component in the contract of nationalism.

More on Marshall's Judicial Mind

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