McCulloch v. Maryland [Judicial Hallucination] – Redux


Supreme Court rulings under the tenure of Chief Justice John Marshall were historically noteworthy in many respects. Opinions rendered by these initial sessions of the court carried the burden of precedent upon which future rulings would be predicated. Additionally, these early courts help define the Constitutional role under which generations of Supreme magistrates would operate within. In Marbury v. Madison, the Supreme Court bestowed upon itself the power of Judicial Review which blazed the path some one hundred and seventy years later for cases such as Roe v. Wade.

The true nature of the court’s power was made quite clear after the court ruled in favor of Indian tribes which were removed from homelands to west of the Mississippi under the Jackson administrations “Indian Removal Acts”. President Jackson not agreeing with the Marshall Court’s ruling threw down the gauntlet by stating, “Justice Marshall has ruled, now let him enforce it.”

Perhaps the greatest influence the Marshall Court had as to the future of the country was not so much the affect a particular ruling or opinion had concerning Constitutional powers, but how it affected the mindset of the American psyche. In McCulloch v. Maryland, Marshall, a strong supporter of the Federalists position, put his stamp on the relationship between the Federal government and the state governments. In his opinion, Marshall opined that the people created the Federal government; therefore the people’s desires are superior to those of the states which make the states subservient to the Federal government. By stating such, Marshall brought forth the idea that the foundations of this country were built on democratic principles instead of republicanism. Some thirty-five years later, Abraham Lincoln would echo this sentiment in the Gettysburg Address by stating that “government of the people, by the people, and for the people….” It would be the death knell for the Republic. In a wave of the judicial hand, the Marshall Court had found within the text of the founding documents, including the writings of Madison in the “Federalist Papers” and the arguments of the Anti Federalists and the ratifying documents of several states, the undisputable evidence and reason that the states held virtually no power to check the encroachments of the Federal government.

Furthermore, Marshall also had ascertained that indeed the Federal government under the Constitution had implied powers as granted by the “Proper and Necessary Clause”. Just as in the court’s discovery of the “Privacy Clause” which formulated the opinions in Roe v. Wade, the Marshall opinions in McCulloch v. Maryland regarding state powers and Federal implied powers seem nothing short of a judicial hallucination. Marshall was correct in a sense to reason that the people had created the Federal government and that the true nature of power rested with the people. But Marshall overlooked an obvious step in the creation process: the people also had created the state; after all the states were not formed by some great geological shift or cosmic wind. No, the states were formed originally by separate groups of distinct individuals who bonded in common interests, such as some states which were organized along homogeneous religious viewpoints. So in essence both the states and the Federal government were creations of the people.

In Federalist No. 45, Madison gives attention to this Federal-state government relationship. In this particular essay, Madison leaves no doubt as to the nature of this partnership.
Madison writes:

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the
United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members.

In light of these views by an individual closely associated with the drafting process of the Constitution, Marshall’s logic is perplexing at best. If a state, empowered by those citizens who reside within it, is able to sustain its existence absent of a dominant Federal power; then how can it be concluded that the Federal power is supreme. As Madison noted, the make-up of the Federal power was almost entirely dependent upon the actions of the individual states. Furthermore, it must be remembered that prior to the ratification of the Fourteenth Amendment, individuals were considered citizens of states first and the national government second; a concept totally vacant from Marshall’s opinion.

The second part of the McCulloch ruling that completely ignores constitutional thought is the idea that the Federal government possesses implied powers. Again quoting Madison from Federalist No. 45, he states:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State

The legacy of John Marshall is not just that of Supreme Court Justice and the pioneer of judicial activism; he also appears to be the father of modern day political liberalism where facts and historic reference are conveniently forgotten in the pursuit of collective power.


One Response to “McCulloch v. Maryland [Judicial Hallucination] – Redux”

  1. Flash Says:

    Of the many unusual and, frankly, to be expected results of this federal power grab was the passage of the Fugitive Slave Act of 1850. The origin of this goes back principally to the acquisition of the Northwest Territories under the Ordinance of 1787 (which barred slavery, by the way). One of our premises here at T.P.O.S. is that the compromises that were made in creating the Constitution set us all on a collision course with liberty and freedom. Indeed, the arguments of Patrick Henry (before he acquiesed) ring loud and true to this day for it is the federalists who bear the historical responsibility for slavery AND the loss of over 600,000 lives in the war for Southern Independence.

    Article 4, Section 2, Clause 3 of the Constitution was the problem as it provided the basis for a federal role in the extradition of slaves. Clause 2 provided for the extradition of fugitives by requiring that fugitives from Justice be extradited upon request of the executive of that state having juridiction over the crime. Notwithstanding the fact that Clause 3 did not specifically mention slavery, it nontheless provided the essential language upon which the Fugitive Slave Laws of 1850 were crafted. No one can argue objectively in hind sight that the existence of these laws did anything but continue the “peculiar institution.” They were, in fact, created to perpetuate it.

    It was, if viewed from a states rights, Tenth Amendment, perspective simply unconstitutional for there was nothing in the constitution which specifically allowed for slavery from the Federal level, therefore it was a matter left up to the states. Since the Federal government did not constitutionally authorize involuntary servitude (in fact, it is the implicit antithesis of it and The Declaration), I find no support for the idea that it could then compel a state to hand over a slave who had escaped his master in a state that allowed it. “Collective” outrage should never be used as a reason to institute systematic tyranny.

    Had Jefferson’s argument, which I deeply believe to be accurate and reflective of the founding vision of America, prevailed the Fugitive Slave Act could not have passed constitutional muster and the mere institution of the Mason and Dixon line would have all but eliminated slavery; without a shot fired and without the loss of life experienced during the War For Southern Independence. Slavery, as an institution, was doomed in under a confederacy, it was, however, propped up by the federation.

    It is incredible on its face that Lincoln, the “Great Emancipator,” took his role as that of a devout federalist. Instead of working to eliminate the Fugitive Slave laws, and thus setting the stage for a rapid natural decline of slavery, he opted for a strategy that would forever (unless we have another revolution) eliminate the notion of succession, elevate the state above the individual, and declare slavery over in only a handful of states. The downside? Over a half a million men lost their lives. For Lincoln, apparently, it was better that 600,000 men die than to allow them to be free to secede – truly, he was all about emancipating a few slaves in a handful of states while simultaneously enslaving a whole nation. Thank’s Abe… You’re no friend of mine.

    The finishing nails on Federal sovereignty over the states came in a U.S. Supreme Court case challenging Wisconsin’s Supreme Court which declared the Fugitive Slave Act unconstitutional. The case involved a slave named Josh Glover who had escaped from Missouri and was hiding out in a cabin near Racine, WI. Sherman Booth, the editor for one of the two leading papers in Milwaukee, came to the defense of Glover after he was captured and imprisoned. Booth organized a mob outside the courthouse and the following day Glover was freed and subsequently escaped to Canada.

    “For the next six years Sherman M. Booth was the center of legal proceedings initiated by the federal authorities under the Fugitive Slave Act. He was arrested, and while in the custody of the United States marshal was released on a writ of habeas corpus issued by a judge of the Wisconsin Supreme Court. The whole court reviewed the case and on July 19, 1854 upheld the habeas corpus. Arrested again and tried by a federal court, Booth was sentenced to a month’s imprisonment and a fine of $1,000 (January, 1855). He was again set at liberty by a writ of habeas corpus issuing from, again, the Wisconsin Supreme Court. At this time the full court declared the Fugitive Slave Act unconstitutional and void. When the Supreme Court of the United States asked for a copy of the record in order to review the case, the Supreme Court of Wisconsin boldly took no notice of the request. In March, 1857, the United States Federal Government assumed jurisdiction, procured a copy of the record [by force], and on March 7, 1859, gave judgment reversing that of the Wisconsin Supreme Court. In March, 1860, Booth was again arrested by Federal authorities, but was quickly released by friends. Booth was rearrested, and the case was finally ended when President Buchanan pardoned him in March, 1861. (Raney, Wisconsin: A Story of Progress, Appleton: Perin Press, 1963, pp. 148-49)”

    In the case of Ableman v. Booth, (62 U.S. 506), writing for the court, Chief Justice Taney based the decision not on the merits of the fugitive law itself, but rather on the state’s limited powers and jurisdiction:

    “The judges of the Supreme Court of Wisconsin do not distinctly state from what source they suppose they have derived this judicial power. There can be no such thing as judicial authority unless it is conferred by a Government or sovereignty, and if the judges and courts of Wisconsin possess the jurisdiction they claim, they must derive it either from the United States or the State. It certainly has not been conferred on them by the United States, and it is equally clear it was not in the power of the State to confer it, even if it had attempted to do so, for no State can authorize one of its judges [62 U.S. 516] or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent Government. And although the State of Wisconsin is sovereign within its territorial limits to a certain extent, yet that sovereignty is limited and restricted by the Constitution of the United States. And the powers of the General Government, and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereigns, acting separately and independently of each other within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State judge or a State court, as if the line of division was traced by landmarks and monuments visible to the eye. And the State of Wisconsin had no more power to authorize these proceedings of its judges and courts than it would have had if the prisoner had been confined in Michigan, or in any other State of the Union, for an offence against the laws of the State in which he was imprisoned. ”

    Clearly, by any analysis, the institution of slavery was propagated by the power of federal government in its institution and defense of the Fugitive Slave Act, and the resultant Fugitive Slave Laws. That Act and those Laws were indeed a direct result of McCulloch v. Maryland and were clearly in opposition to the founding vision of this country as more perfect confederation, not a federation.

    The number of lives that have been lost in support of this idiotic notion of federal power over the states, heck, federal power in general is mind-boggling. More so the irrational and seemingly unconscious support among the population for it.

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