WASHINGTON -- A nation's identity consists of braided memories, which 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' 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?''
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