Marbury v. Madison(1803) andMcCulloch v. Maryland(1819)of the most important Chief Justice of the Supreme Court of the United StatesJohn Marshall.Marshall served as Chief Justice for a little over 34 years, making him the longest-tenured Chief Justice ever.Marshall was appointed by John Adams in 1801 and was an ardent Federalist, meaning that he was a strong supporter of the powerful federal government views that we have seen from Hamilton and Adams.It is important to note here that Marshall is a perfect example of a phenomenon that we have seen time and time again in American political history.The lifetime nature of the federal bench often allows a president or a political party to have a significant effect on political outcomes long after the president in question has left office or the party in question has lost power.The Federalist Party never won another presidential election after Adams' win in 1796, was reduced largely to a New England only party by the first decade of the 1800s, and was completely defunct by the 1810s.Yet Marshall stayed on the bench as Chief Justice until he died in 1835.One could argue that Marshall did more than anyone else with the possible exceptions of Hamilton, Lincoln, and FDR to advance the cause of a powerful federal government in the American system, and it would not be at all crazy to insist that he in fact did more than any of them.

The subject of interest for us today in these two decisions is a familiar onethe powers of the federal government in relation to those of the state governments.The specific matters at hand in these decisions are old friends as welljudicial review, the supremacy clause, and the necessary and proper clause.Marshall's language might be a bit difficult to get through, but the payoff is worth the effort.The potential dominance of the federal government contained in the Constitution that so worried the Anti-Federalists is in many ways made flesh in these two decisions.InMarburyandMcCullochMarshall cast the die for the federal arrangement that we have today.

II.Marbury v. Madison

Marshall was in a very difficult spot in when this case came before the Court.The 1800 presidential election set in motion the events that led up toMarbury.Jefferson of course defeated Adams in this election, but at that time the new president did not take office until March of the following year, meaning that Adams and the Federalists were in change as lame ducks for almost five months.Adams was determined to use this period to his advantage, and to do everything possible to blunt the power of his primary rival, Jefferson (It is interesting to note here that these two one-time blood rivals became very close friends after their respective retirements from public life.Their letters back and forth during this period are fascinating to read.They each died on July 4, 1826, the 50^thanniversary of the Declaration of Independence).One of the primary things that Adams and the Federalists did here was establish a number of new federal courts.Good Federalist that he was, Adams nominated only Federalists to these positions, and the Federalist Senate approved the nominations.But some of the judicial commissions were for some reason not delivered before Jefferson took office, and as soon as he was sworn in Jefferson ordered the remaining commissions not to be delivered, thus making them void in his opinion.One of the undelivered commissions belonged to William Marbury, a prominent Federalist financier.Marbury wanted his spot on the bench, and he sued Madison as Secretary of State in the attempt to force Madison to deliver his commission.This is where the Court found itself in trouble.To Marshall, it was clear that Marbury's commission was done by the book and according to the law (the Judiciary Acts of 1789 and 1801) and also that Madison should deliver Marbury's commission.But Marshall also knew that Jefferson would ignore any Court order to do, and that the Court would be powerless to anything about it.So this was situation Marshall facedrule against Marbury and make it look as if the Court was ignorant of the law or rule for Marbury and expose the Court as essentially a powerless branch of the federal government.

Marshall's way out of this mess was ingenious.In fact, many constitutional law scholars would tell youMarburyis the single most powerful opinion ever, at least in terms of constitutional significance.InMarbury, Marshall said of course Marbury had a right to his commission, and most certainly the laws in question demanded that the proper remedy was for the Supreme Court to issue a writ of mandamus (a court order instructing something).However, the laws that gave this power to the Supreme Court were unconstitutional, and thus invalid.They were unconstitutional, Marshall declared, because the Constitution did not give Congress the power to adjust the original jurisdiction of the Courtthat could only be done by amendment.In one fell swoop Marshall not only saved the Court from a debilitating show of weakness, but instead made the Court an almost equal player in the federal government with the establishment of judicial review.Not a bad day's work.

III.McCulloch v. Maryland

While perhaps not as impressive asMarbury, Marshall's decision inMcCullochwas no less significant.Here the specific issue in question involved the Bank of the United States.The Bank set up branches in each of the individual states, a practice that at least some of the states did not like.They viewed the power to charter banks as solely a state power.They also derived significant revenues from chartering these banks, and did not want to get squeezed out of this lucrative field by the federal government.With these thoughts in mind, Maryland instituted an extremely high tax on the Bank of the US branch inside its borders.The Bank challenged this in court, and the case eventually ended up before Marshall and the Supreme Court.Every time I read this decision I can envision those Anti-Federalists still alive stomping their feet and screaming "I told you so!" at the top of their lungs, and those who were dead spinning in their graves.In his decision inMcCullochMarshall did two of the things the Anti-Federalists feared mostestablished a broad (some would say limitless) interpretation of the Necessary and Proper Clause and a muscular (again, some would say invincible) interpretation of the Supremacy Clause.In a nutshell, Marshall argued that because the Constitution required Congress to do things such as coin and borrow money, levy taxes, regulate commerce, etc., the Constitution also allowed Congress to establish a bank under the Necessary and Proper Clause.In turn the Supremacy Clause clearly prohibited Maryland from taxing the Bank's branches within its borders because doing so had the power to destroy the Bank.Destroying the Bank was in direct contradiction to federal law, and thus unconstitutional.At the end of the day, it was federal government 2, states 0.

IV.Questions

• What do you think of Marshall's decisions here?Are they correct?Why or why not?
• How would things be different today if the Court had decided differently in either or both of these cases?