Engraved on the back of the larger-than-life monument to Supreme Court Justice John Marshall, this group’s and the university’s namesake, located on campus is the seemingly honorary and almost majestic title of “Definer of the Constitution.”

While it is hard to claim this granted title is inaccurate, as Marshall’s tenure as Chief Justice saw him preside over some the most significant cases in the relatively young court’s (as well as the nation’s) history, there is definitely contention among the conflicting ideologies as to whether or not his contributions to understanding the Constitution left in his wake a positive or negative legacy.

It is no secret that Marshall was himself a Federalist.  He was undoubtedly an advocate of a strong, central government with supreme authority over the states.  And with these convictions came a belief in a liberal, or “loose,” interpretation of the Constitution.

We often hear pretentious and politically expedient “conservatives,” both in the Congress and on television, radio and in newspapers, complain and lambast the current federal leviathan for having strayed too far from the Founders’ vision, no longer consistent with the outline of the Constitution, and grown to such a size that would make them turn over in their graves.

Of course, all of this is right before they vote to give the Executive Branch more emergency power to essentially spy on their constituents and deny basic, bedrock due process rights to accused terrorists, who are being unlawfully and indefinitely held in prison, all in the name of “national security.”

But while this petty political posturing is not entirely off the mark, it is misleading in that takes the argument in the wrong direction, placing emphasis on the wrong group of people.

When considering the intended purpose, powers and function of the federal government as spelled out by the Constitution, rather than drawing on the Founders, the authors of the document, it is more consistent with its letter and spirit to focus on the document as interpreted by the ratifiers, the state conventions that made it binding.

The Founders, James Madison in particular, simply wrote the Constitution.  They put the concepts into words and laid them out on paper.  This act alone, according to Constitutional Law scholar Kevin Gutzman, did nothing.  The state ratification conventions gave the words their authority.  So it would be more important to consider the document as they envisioned it, because they otherwise would not have ratified it, had they feared it would simply be construed to mean something other than what they were being led to believe.

Enter John Marshall.  As an adherent to Hamiltonian monarchist-nationalism, Marshall’s vision of the federal government was at direct odds with that of the ratifiers, where the Republicans, the former Anti-Federalists, won the day (temporarily) in that the federal government was one of the states with expressly delegated and limited powers, the explicitly enumerated, with all else left to the states or the people, as underscored by the adoption of the Tenth Amendment.  As even further protection against the possibility of an about-face by the Federalists, who, led by George Washington, would ultimately be in charge at the start, several states included secession clauses in their ratification.

Marshall’s contrary views would take hold soon enough though, in a series of controversial and landmark cases that would transform the nation.

The first among them, Marbury v. Madison, is the one he is given the most accolades for, yet it is probably the least controversial and most sensical of all of them.  Sparing all the minute details, the decision formally established the concept of judicial review on the part of the Supreme Court, the ability to review federal law and decide whether or not it was consistent with the powers delegated by the Constitution.

This decision is trumpeted by many as Marshall’s defining moment, his genius exemplified in the manner in which he, in the words of a former and prominent political science professor here at the university, “created the Supreme Court’s power out of nothing.”

But the reality is that judicial review was not a new idea, nor the brainchild of Marshall alone.  During the ratification process, Federalist sympathizers had intended for federal courts to hold the power of review, and this was accepted and shared by Republican heavyweights, most notably Patrick Henry.

And, if one really thinks about it, the idea makes sense.  What is the point of having a government of specific, limited powers if there is no instrument in place to enforce that upon it.

Marshall’s next most famous decision as Chief Justice, and the one that would perhaps set the movement of big government into near perpetual motion is that of McCullough v. Maryland.

This case involved the constitutionality of chartering a bank by the federal government.  In short, the state of Maryland argued that it was not and the feds argued it was.

Marshall, writing for the majority, opined that the chartering was, in fact, constitutional.

He rejected the notion that the federal government had only expressly delegated powers, arguing that the Constitution was created by the “one” American people, and thus, it must be supreme in and of itself.  

He went on to contend that charting a bank was implied in the enumerated powers of Article 1, Section 8; which, among many other things, deals with monetary issues, and that chartering a bank was the proper means to achieve that end.  And because the Constitution was ratified by the “one” American people, state governments could not interfere.

Marshall’s reasoning is, quite frankly, seriously flawed, and it opened a serious Pandora’s box with regards to federally implied powers.

First off, the Constitution was not ratified by the American populace.  It was ratified by state conventions, each by and on behalf of itself.  And seeing as how only 9 of the original 13 were required to make it the law of the land, the idea that the entire population ratified it falls a little short.  If that were the case, then wouldn’t requiring all the states ratify it make more sense?

Further more, Marshall’s idea of implied federal powers is contrary to his own previous position, as well as other prominent Federalists, such as Edmund Randolph, William Cushing and Charles Pinckney, at their ratification conventions.  Randolph himself used the words “expressly delegated” when referring to the powers vested in the Congress.  And that takes us back to argument involving the intent of ratifiers against founders, and whose carries more weight.

Marshall’s argument also totally dismissed the Tenth Amendment, as if it didn’t even exist, which of course, was put in place to specifically detail that those powers not granted to the Congress are left to the states.

In short, Marshall’s opinion in the McCullough case was a dramatic revision of very recent history and a rather liberal interpretation of the Constitution.

Even James Madison, once a staunch Federalist, protested the decision, claiming if such a thing such as Marshall’s opinion had been foreseen, the Constitution would have never been ratified.

There are several other cases in which Marshall laid claim to dubious constitutional grounds, and to be fair, some that are not.  Not everyone is wrong all the time.  But the two that have been highlighted are among the most well known, being probably the farthest reaching, both in their implications and consequences.

Marshall is considered the first, of many to come, imperial judge that used broad interpretations of the Constitution in an effort to usurp power from the states, and grant it to the federal, or as he would have preferred it, national government.

Personally, I reject the view that the Constitution allows for broad federal power of any kind, as placing a limit on the scope and reach of the federal government was the very purpose of the document.  The colonists then recent run-ins with King George’s soldiers had a way of largely turning them off to strong, centralized forces.

Granted, the idea of revising the Articles of Confederation because of their supposed inefficiencies would justify creating a stronger federal government, but that does not mean it was given a blank check with which to do what it pleased.  That kind of arbitrary authority was what was escaped upon secession from the British Empire.

So while the argument can certainly be made for John Marshall as a definer of the Constitution, his definitions were often at odds with just what it was and was supposed to be.

He defined it, particularly in the McCullough case, and his precedents allowed for future justices to define it, in ways that were in spite of itself.