A History of the American People

America's vast resources and making it the richest country on earth. It was capitalism, not the
state, which would conquer, tame, and plant the Mississippi Valley and still further west. All it
required was a just, sensible, and consistent legal framework so that entrepreneurs could invest
their capital and skills with confidence. Marshall had none of Taylor's reluctance to acknowledge
artificial' property. It was the market, not sentiment, which defined wealth, provided it were honestly acquired. It was the duty of the court so to interpret the Constitution that the rights of property of all kinds were properly acknowledged, and capitalism thus enabled to do its job of developing the vast territories which Almighty God, in his wisdom, had given the American people just as he had once given the Promised Land to the Israelites. In this work, Marshall saw it as his primary function to provide property with the security which (in his view) was increasingly threatened by the legislatures of the states with their one- man, one-vote democracy and their consequent exposure to the demagoguery of irresponsible and propertyless men. That meant making the muscle of the Supreme Court felt in every state capital-and indeed in Congress itself. He set the parameters for his work as early as 1803, when in Marbury v. Madison he asserted the constitutional power of the Court to engage in judicial review of both state and federal legislation and, if needs be, to rule it unconstitutional. Viewing, as he did, the Constitution as an instrument of national unity and safety, he claimed that it not only set forth specific powers but created its own sanctions by implied powers. These sanctions were particularly necessary when, with the spread of the suffrage, politicians made populist assaults on lawful property to curry favor with the mob. To Marshall it made little difference whether an actual rabble stormed the Bastille by force or a legislative rabble tried to take it by unconstitutional statute. His first great blow for property came in 1810 in Fletcher v. Peck, when he overturned the popular verdict by ruling that a contact was valid whatever ordinary men might think of its ethics. Fourteen years later, in the key case of Gibbons v. Ogden, he struck a lasting blow for entrepreneurial freedom by ruling that a state legislature had no constitutional right to create a steamboat monopoly. This interpretation of the Commerce Clause (Article I, Section 8) of the Constitution insisted that the US Congress was supreme in all aspects of interstate commerce and could not be limited by state law in that area. He wrote:The subject is as
completely taken from the state legislatures as if they had been expressly forbidden to act on it.
In 1819 alone there were three cardinal Marshall rulings in favour of property. Early in
February his Court ruled, in Sturges v. Crowninshield, that a populist New York State
bankruptcy law in favor of debtors violated the Constitution on contracts. The same month, in
Dartmouth College v. Woodward, the Court laid down that a corporation charter was a private
contract which was protected from interference by a state legislature. The most important case
came in March, in a battle between the state of Maryland and the federal bank, or rather its
Maryland branch. In McCulloch v. Maryland the Court had to rule not only on the right of a state
to tax a federal institution but on the right of Congress to set up a federal bank in the first place.
The judgment came down with tremendous majesty on the side of the central power, and the
lawful status of the federal bank, which thus survived and flourished, until the great populist
Andrew Jackson-the rabble incarnate and enthroned, in Marshall's view-destroyed it.
In the light of subsequent history, it is easy for us to applaud Marshall's work as saving the
United States from the demagogic legislative and governmental follies which made property
insecure in Latin America, and so kept it poor and backward. Marshall's rulings made the
accumulation of capital possible on a scale hitherto unimaginable and he can justly be described
as one of the architects of the modern world. But it did not seem so at the time to Jefferson and
his friends. To Jefferson's delight, John Taylor himself lambasted the Court's ruling in