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American Government AP
Chapter 10 – Judiciary
John Marshall
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John Marshall's Judicial Mind: The Contract between the People and Their Government
The powers of contract are the last component of Marshall’s nationalistic philosophy. The power of
contracts gives the government the ability to govern. The people are bound by the laws of the
government and the constitution. The government is bound by the principles of the constitution.
The constitution is the supreme law and this is the guiding force of the workings of nationalism.
John Marshall was an avid believer in nationalism. He believed in a strong central government of
laws. The constitution being the "supreme law of the land", where the states were subordinate to the
central government and the central government subordinate to the constitution.
The constitution being the contract between the people and the government. The people consented to
be governed by the constitutional government. The consent given was a unanimous consent, for the
constitution begins "We the people in order to form a more perfect Union… do ordain and establish
this constitution of the United States of America."
Thus, the government becomes a government of the law. As Marshall states in Marbury that "if a
persons duty is backed by law and not by political in nature, then he becomes subject of the law and
is examinable by the court."(Marbury v. Madison)
The people in the government are subject to the law of the constitution just as much as his
constituents are. In other words the government is not above the law, for if it were above the law,
then it cannot be a government of laws, it would be a law unto itself. This is the thinking of Marshall
when he determines that Marbury has a right to seek compensation for his lost commission.
"Specific duty is assigned by law and individual rights depend upon the performance of that duty, it
seems equally clear, that the individual who considers himself injured, has the right to resort to the
laws of his country for a remedy. The question whether a right has vested or not, in its nature,
judicial and must be tried by the judicial authority."(Marbury v. Madison)
Words that affirm one object very often negate the other object. It is a regulation or limitation on the
powers of government. In the case of Marbury v. Madison, a negative or exclusive sense "must be
given to them or they are not operational at all." The people have the right to establish their
government as they see fit and this includes giving the government the necessary powers to carry out
its part of the contract, which shall conduce to their happiness.
This is the basis on which the complete American fabric was erected. "Judicial review is in essence,
taking both the contested law with the supreme law (i.e. the constitution) and deciding which is
governing. All law that is statutes must conform to the constitution for if it doesn’t then that law is
void."(Marbury v. Madison) "Thus, the particular phraseology of the constitution of the United
States confirms and strengthens the principle, supposed to be essential to all written constitutions,
that a law repugnant to the constitution is void; and that courts, as well as other departments, are
bound by that instrument."(Marbury v. Madison)
In another opinion Marshall sets forth the view that the government, whether federal or state, must
honor contracts of previous governments that are no longer in power. This case was the Dartmouth
College case in 1819.
In this case he also gave a corporation an artificial being status. "A corporation is an artificial being,
invisible, intangible, and existing only in contemplation of law. The objects of corporations are
deemed beneficial to the country. By revolution, the duties, as well as the powers of government
changed hands."(Dartmouth v. Woodward)
The government is, then similar to a corporation. The government has vested interest in protecting
the rights of the people it serves. Corporations are in the business to be of public service.
Corporations rely upon its charter to protect not only itself but also the people it serves. The same
situation exists for the congress. Marshall continues to explain further that a legislative law is a
contract and thus as a contract it cannot be broken.
"When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a
repeal of the law cannot divest those rights; and the act of annulling them if legitimate, is rendered
so by a power applicable to the case of every individual in the community." Marshall then defines a
contract as a compact between two or more parties, and is either executory or executed.
An executory contract is one in which a party binds himself to do, or not to do, a particular thing;…
A contract executed is one in which the object of contract is performed; and this, says Blackstone,
differs in nothing from a grant." Both contracts Marshall says, "contains obligations binding on the
parties," and a grant implies "a contract not to reassert that right."(Fletcher v. Peck)
This right is the extinguishment of the rights of the granter that he is granting. The constitution is
both an executory and executed contract. It is a contract for every citizen of the United States. Like
contracts, the constitution cannot be broken. In another case, we see further restraints upon not only
the states but also upon the federal government. This case was Ogden v. Saunders.
The case in question dealt with the power of congress to establish bankruptcy laws of the United
States. The congressional power does not exclude the rights of the states to pass their own laws
except where the congress has already addressed the subject.(Ogden v. Saunders) In this Marshall
wrote a separate opinion, he assented. The question at bar was whether a state law was consistent or
repugnant to the constitution of the United States.
The power to preserve the constitution from legislative infraction must reside anywhere, it cannot be
wrong, it must be right, that those whom the delicate and important duty is conferred should perform
it according to their best judgment. On construction of this matter, Marshall says that "the intent of
the instrument must prevail. The intent is divided from the words, the words say plainly the intent.
Its provisions are neither to be restricted into insignificance, nor extended to objects not
comprehended in them, nor contemplated by the framers." (Ogden v. Saunders)
Marshall then states from the constitution that no state shall pass any law impairing the obligations
of contracts. A restriction on the power to pass laws may affect one class of law and not affect the
other class. The nature of the Union was to make the citizens of the states into one people and as to
commercial objects, the state boundaries are obliterated. In regard to the delicate nature of contracts,
once they are formed the interference of state legislation should be greatly abridged or entirely
forbidden.(Ogden v. Saunders)
"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 deny its
authority."(Cohens v. Virginia) The maintenance of these principles is the duty of the justice
department. Thus, the constitution is a document of principles. It is another thing also, equally
important. The constitution is a contract among the people of the nation. Marshall said in his
opinions, that it is a "constitution that we are expounding."
Bibliography
Barron v. Baltimore 7 Peters 243(1833).
Cohens v. Virginia 6 Wheaton 316 (1819).
Dartmouth v. Woodward 4 Wheaton 1 (1819).
Fletcher v. Peck 6 Cranch 87 (1810).
Gibbons v. Ogden 8 Wheaton 1 (1824)
Marbury v. Madison 1 Cranch 163 (1803).
McCulloch v. Maryland 4 Wheaton 316 (1819).
Ogden v. Saunders 12 Wheaton 213 (1827).
Marbury v Madison p. 349-51
1. Is judicial review a good idea? Should nine unelected judges be able to tell our elected
representatives what they can and cannot do?
2. Are courts more likely to block an enlightened consensus with their adherence to outdated
principles or to protect the politically weak from oppressive majorities?
3. Are judges, protected with lifetime tenure and drawn generally from the educated class, more
likely to be reflective and above the passing enthusiasms that drive legislative action?
4. Does Marbury mean that legislators or members of the executive branch have no responsibility to
judge the constitutionality of their own actions?
5. Could we have a workable system of government without judicial review?