[Mb-civic] The Supreme Justice - George F. Will - Washington Post

[William Swiggard]

The Supreme Justice

By George F. Will
Sunday, September 25, 2005; Page B07

A nation's identity consists of braided memories that are nourished by 
diligence at civic commemorations. It is, therefore, disappointing that 
at this moment of keen interest in the Supreme Court and the office of 
chief justice, scant attention has been paid to the 250th anniversary of 
the birth of the nation's greatest jurist, Chief Justice John Marshall.

The oldest of the family's 15 children, he was born Sept. 24, 1755, into 
Virginia rusticity where women pinned their blouses with thorns. Yet he 
developed the most urbane and subtle mind of that era of remarkable 
statecraft. He was a member of Virginia's ratifying convention, and in 
nearly 35 years as chief justice he founded American constitutional law. 
That kind of legal reasoning by Supreme Court justices is a continuous 
exegesis of the Constitution and is sometimes not easily distinguished 
from a continuing writing of the document.

Marshall is the most important American never to have been president. 
Because of his shaping effect on the soft wax of the young republic, his 
historic importance is greater than that of all but two presidents -- 
Washington and Lincoln. Without Marshall's landmark opinions defining 
the national government's powers, the government Washington founded 
might not have acquired competencies -- and society might not have 
developed the economic sinews -- sufficient to enable Lincoln to 
preserve the Union.

Article I, Section 8, enumerates Congress's powers, and then empowers 
Congress "to make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers." Marshall's capacious 
construction of the "necessary and proper" clause shaped the law and the 
nation's consciousness of itself.

Did Congress have the power -- unenumerated but implied -- to charter a 
national bank? In 1819, 42 years before Lincoln grappled with 
unprecedented exigencies, Marshall ruled:

"Throughout this vast republic, from the St. Croix to the Gulph of 
Mexico, from the Atlantic to the Pacific, revenue is to be collected and 
expended, armies are to be marched and supported. The exigencies of the 
nation may require that the treasure raised in the north should be 
transported to the south. . . . Is that construction of the constitution 
to be preferred which would render these operations difficult, 
hazardous, and expensive?"

Two years later he held that "we are one people" in war, in making peace 
and -- third, but not of tertiary importance -- in "all commercial 
regulations." The Framers' fundamental task was to create a federal 
government with powers impervious to encroachments by the states. The 
Framers had been frightened by the states' excesses in using political 
power on behalf of debtors against creditors and to limit competition by 
mercantilistic practices such as granting monopolies. Marshall made 
constitutional law a bulwark of the sanctity of contracts, the bedrock 
of America's enterprise culture. And by protecting the private rights 
essential to aspirational individualism, Marshall's court legitimized an 
inequality -- not of opportunity but of outcomes -- compatible with a 
republic's values.
http://www.washingtonpost.com/wp-dyn/content/article/2005/09/24/AR2005092400524.html?nav=hcmodule
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