The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1935-01-03
The Constitution: Growth
BY TALCoTT POWELL

This is the fourth of a series on the
Constitution.
THE Constitution was not a particularly
l. lusty infant at birth. 1t needed careful
nursing. AS the majority began to realize that
it had been written and adopted by a self
interested minority the New Plan" of govern
ment was subjected to all sorts of attacks
from State Legislatures and municipalities.
Localism refused to relinquish sovereignty
without a fight.
John Marshall. Chief Justice of the United
States Supreme Court from 1901 to 1885, be-
came the champion of nationalism. The Con-
stitution itself laid down a few broad princi-
Piles. 1t was Chief Justice Marshall who inter-
preted these, made them work.
The Supreme Court today confronting as
important a set of problems as it has ever
faced in its history will rely nearly as much
upon Marshalls Interpretation of the Consti-
tuition as they will upon the actual wording
of the great document itself.
Marshall came of pioneering stock. He had
gone through the awful winter at Valley
Forge. He had been one of the doughtiest
fighters for the Constitution at the Virginia
ratification convention. He was careless about
his personal appearance but his mind operated
with the u~nerring precision of a slide rule.
John Marshall's two great contributions to
the growth of the Constitution were the estab-
lishment of the right Of Federal courts to pass
upon the constitutionality of acts of Congress.
State Legislatures and municipalities and the
firm cementing into our basic law the prin-
ciples of the sanctity of contracts.
He believed that the end justified the
means. Little niceties Of professional ethics did
not greatly trouble him. In the celebrated cases
Of Marbury VS.. Madison and Cohens VS.. Vir-
ginia, there is reason for suSpecting that he
fomented the Observation-Disclosures chasing"
on a refined scale. On another OCCASION he
was believed to have written his decision be-
fore hearing the arguments of counsel.
r n n
A MODERN judge would have hesitated to
IA sit in the Marbury case under the same
circumstances that Marshall heard it. It was
the Chief Justices own negligence in failing
to deliver a warrant of Office to Marbury
that was the indirect cause of law suit. Mar
shall was thus an interested party and his
ethics are still open to question.
Jefferson snarled that Marshall'S opinion
in this case represented "the despotism of
an oligarchy," but the judgment has stood
to this day.
It must be remembered that the Chief
Justice was again and again confronted with
rebellion against the Constitution. He had a
nice sense of publicity and fought the battle
with well timed deciSionS-certainly far better
than bullets.
During the years between the adoption of
the Constitution and the close of the Civil
War there was a steady drive by conservatives
to favor corporate enterprise. This reached a
climax in 1868 with the ratification of the
Fourteenth Amendment, which amounted to
revolution in our legal structure.
Immediately after Appomattox there had to
be a new definition of the rights of Negroes. A
joint Congressional Committee met for the
purpose Of drafting a constitutional amend
ment, which would forever rivet into our I'M
DERIVING law the principle of freedom for the
emancipated blacks. That was the sole pur-
pose of the committees deliberations.
Two members of the committee had quite
a different purpose, however, though they
dared not unmask it nor did they ever admit
1t until years later. John A. Bingham was
Ohio's outstanding railroad attorney. Roscoe
Conkling was New Yorx's most distinguished
corporation lawyer.
1t was these two skillful gentleman who
wrote into the amendment the famous phrase
nor shall any state deprive any person of life,
liberty or property without due process of law"