First Among Equals Read Online Free PDF Page B

devise additional categories of original jurisdiction. Obviously, the statute was inconsistent with what the Constitution provided. Both could not be law.
    The final step in John Marshall's analysis represented the inexorable conclusion: If a statute passed by Congress is inconsistent with the Constitution, then the statute must be set aside. Otherwise, ordinary legislation would render ineffectual the very law that sets up Congress and the rest of the government—the Constitution. And, Marshall added, it was the job of judges to say, finally, what was the law of the land.
    The Federalist midnight appointee John Marshall had ruled against his philosophical comrade. But in the process of disappointing Marbury, the great chief justice (as he came to be called) had established the fundamental role of the judiciary in a constitutional democracy—to interpret the Constitution finally and authoritatively, even when one of the other branches of government (or both) had come to a contrary view.
    To Jefferson, the
Marbury v. Madison
approach was profoundly wrong. Each branch, he thought, was coordinate and co-equal. It would not do to have a regime of judicial supremacy in which the unelected, third branch of government stood over the two elected branches. A new aristocracy would rule the two branches most responsive to the people.
    But President Jefferson's sense of foreboding was to no avail. Congress made no effort to overturn
Marbury
through constitutional amendment. Nor was a more modest measure seriously pursued, such as one requiring that the Court be unanimous before striking down as unconstitutional an act of Congress or an action of the executive branch.
    Marbury v. Madison
was the seminal decision of John Marshall's tenure. But it began a long series of Marshall's contributions. In case after case, spanning over three decades of service, Marshall guided the Court in a way that upheld national power over the country. That is, when the issue involved the power of the Congress as against the claims of the states, Marshall was a reliable supporter of the federal government. In particular, his interpretation of one pivotal provision in the Constitution — the Commerce Clause—paved the way for Congress to be free to regulate the economy in the myriad ways that have now become commonplace.
    Much of what Congress does falls under the category of regulating “commerce.” The Constitution's language in this respect is simple: Article I, section 8 provides that the national legislature is empowered “[t]o regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.” In an early landmark testing the extent of this power, Marshall, in a characteristically broad interpretation of congressional authority, dealt a serious blow to state authority (
Gibbons v. Ogden
[1824]). In that case, the Marshall Court struck down a New York law giving a monopoly to a steamboat company carrying passengers on the Hudson River. In overturning the law, Marshall gave the pivotal term
commerce
a sweepingly broad definition, thus maximizing federal power at the expense of the states.
    Marshall's pro-Federalist vision likewise triumphed in an early case involving Maryland's challenge to the controversial remnant of Hamilton's program from the prior century, the Bank of the United States. To the Anti-Federalist defenders of states’ rights, most prominently Jefferson, the Bank embodied the evils of national concentration of power. Nowhere in the Constitution was the Bank either generally or specifically mentioned. The legality of the Bank thus went to the heart of the Constitution's structural arrangements. The Constitution, after all, laid out in elaborate detail the various powers of Congress. To the Anti-Federalists, its silence about national financial institutions resolved the question of Congress's power: If the Constitution was silent, then the power did not exist.
    This narrow approach to interpreting the