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That Constitution is the most remarkable document that ever came from the minds of men. There had been republics and democracies before, and federations of various kinds; but in no other country, so far as I know, had there been a definite, written constitution by which they were governed. Even the Constitution of England, about which we have heard so much, is chiefly remarkable from the fact that it exists only in theory, and really has no binding force on the law-making power. But the problem which presented itself to the men of 1787 was not merely to frame a method of governing and administering one republic: that would have been comparatively easy; but here were thirteen distinct States or political organizations, each of which was as separate from the other, so far as influence or power over each other was concerned, as England is from France; differing in manners and customs, in views and opinions, more or less jealous of each other, and unwilling to lose their individual rights and authority.
These thirteen distinct sovereignties were to be so combined as to form one nation which was to be sovereign for certain purposes, and yet leave the States sovereign for all other purposes, and it was necessary for the convention to decide what powers should be reserved by the States, and what delegated by them to the new nation. This would have been difficult enough if the members of the convention had been broad-minded, intelligent, un prejudiced men, met together with no prepossessions, to determine on principle what would be best to do; for there were absolutely no precedents in history or experience to guide them; but this was by no means the case. The people in every State were divided into two parties, the principal difference between them being this very question of what should be the relative powers of these respective governments. The Federalists, headed by Hamilton, desired to have a single nation of great power, almost like England; and to reduce the powers of the States as much as possible. The opposition, afterward called the Republican party, headed by Jefferson, and including many other men of great ability and strong and honest beliefs, desired to limit the power of the new government as much as possible, and to keep as much power in the States as they possibly could. Both these parties were largely represented in the convention by their best men.
The difficulty was, therefore, to frame a constitution which would satisfy all reasonable men of both parties, and be accepted by all the States, and yet would give to the new government such powers as were needed to make it of real benefit. It hardly seems possible that this could ever have been done, but it was done, and so well done, that although made for only thirteen States and a few millions of people, it has been found adequate and sufficient for forty-five States and over seventy millions of people; and it is even greater proof of the wisdom and foresight of these men, that with the exception of the ten amendments passed in 1791, and which have always been regarded as practically part of the Constitution itself, only two amendments, each of minor importance, were made until after the convulsions of the Civil War.
Neither of the two great parties was able to carry out its wishes in full; in some instances compromises were made; and the result was to bring about in many cases the use of broad general expressions which might be construed in different ways, rather than minute detailed provisions. All the people, however, had learned from bitter experience during the Revolution, that a mere federation of the States without some power above them all would be insufficient; and the Constitution and ten amendments were finally adopted.
This, however, did not change the views and desires of the two great parties: the contest was only removed to a new field. It still became necessary to determine what the words used in the Constitution meant, and how it was to be interpreted. Those who had fought the battle for State sovereignty in the convention were still as ready and anxious to urge that the new government should have no powers that had not bzen clearly and expressly given to it, and that the expressions used should be so construed as to be restrained within the narrowest limits. The controversy was only removed from the Convention to another forum.
It was obvious that a mere written constitution, without some absolute authority to interpret it and decide what its meaning really was in relation to many intricate and embarrassing questions and to enforce its decisions, would be useless, and therefore some such authority must be provided. The most unique and remarkable feature in this instrument is the provision that the Supreme Court should be a tribunal which should decide all questions judicially arising under it, finally and absolutely, so as to bind both the States themselves and the United States; and having its decisions enforced, if necessary, by the whole power of the government. It was, I believe, the first instance of such a tribunal in all the history of civilized institutions. It is clear, too, that this makes the judiciary by far the greatest and most powerful of the three departments into which the powers of government
were divided. It has the power in all judicial controversies and cases to determine the validity of legislation, both of Congress and of the States, and to determine the powers and duties of the Executive; for it has the power to say what the words used in the Constitution and laws actually mean. The power of saying what words mean is greater than the power of selecting and phrasing the words; for it is the ideas which the words convey, and not the words themselves, which are important. To paraphrase a well known saying, “Let who will make the laws if I can construe them.” This power is still greater in the case of a Constitution like ours, where of necessity, as well as for reasons already suggested, the expressions are broad and general, instead of detailed and definite.
It is the greatest possible tribute to the wisdom and respect for law of the people of the United States, that although the court has often exercised its great power, and has held many laws passed by Congress as well as by the States to be void, laws often of great importance, involving great interests, and affecting the feelings and views of large sections of the Union, its decisions have invariably been submitted to; not indeed without objection and disapproval, for that would be too much to expect of human nature, but without defiance and resistance.
This power in the court made the views of its members of the highest importance. They could so construe the words of the Constitution as to limit and restrain it within the narrowest bounds, or so as to expand and enlarge it, almost at will. To those of us who believe in a superintending Providence, it may be considered providential that John Marshall, at this crisis, was placed at the head of the court.
Nor was this a mere theoretical division of opinion between the two great parties; it was a vital and practical one. In the words of Marshall himself, in his Life of Washington, the country “was divided into two great political parties, the one of which contemplated America as a Nation, and labored incessantly to invest the Federal head with powers competent to the preservation of the Union. The other attached itself to the State gov
. ment, viewed all the powers of Congress with jealousy, and assented reluctantly to measures which would enable the head to act in any respect independently of the members.” This feeling was shown very strongly in the convention which framed the Constitution. Charles Pinckney, of South Carolina, introduced a draft of a Constitution commencing, “We, the people of the States of New Hampshire, Massachusetts,” etc., enumerating all the thirteen States. If a Chief Justice, imbued with the latter opinions, had been in Marsball's place, the history of the United States would have been very different. Fortunately for us, John Marshall's views on this great question were so clear and strong as to fill his whole nature. As a soldier he had gone through that winter of starvation and frost at Valley Forge, where the disputes between the States composing the Confederation were such that the strongest appeals of Washington could not induce them to agree as to raising even money enough to warm, clothe, and feed the soldiers who were giving their lives for their protection. He had seen and felt the incompetency of that body, and when elected a member of the Virginia Convention, called to consider the adoption of the new Constitution, he urged its adoption with such power of argument and strength of reasoning, that, though opposed by many of the ablest men in the State, among