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Chapter VIII: Sovereignty and Union
tered institutions. The implications of such state activity, in an economy
in which financial transactions were increasingly crossing state lines,
would be considerable. The fact that the House of Representatives debated
whether Congress should repeal the Bank's charter at the same time
McCulloch was being argued demonstrates how pressing and unsettled
the issue of banking policy then was.204
Marshall began his discussion of both issues in McCulloch with
general statements of sovereignty theory. In considering whether Con-
gress could constitutionally establish a national bank he noted that Jones
and Martin, for Maryland, had argued that "the constitution was formed
and adopted, not by the people of the United States at large, but by the
people of the respective states," and was therefore "a compact between
the states" in which the states "reserved ... all the powers [they had]
not expressly relinquished."205 Marshall was not two pages into his opin-
ion for the Court in McCulloch before he attacked that argument. "Coun-
sel for the State of Maryland," he said,
have deemed it of some importance, in the construction of the consti-
tution, to consider that instrument not as emanating from the people,
but as the act of sovereign and independent states. The powers of the
general government, it has been said, are delegated by the states, who
alone are truly sovereign; and must be exercised in subordination to
the states, who alone possess supreme dominion.206
Marshall devoted the next twenty pages of his opinion to refuting that
proposition. The refutation involved four steps, themselves characteristic
of Marshallian logic.207 Step one was Marshall's claim that the process
by which the Constitution had been ratified, and the language in its Pream-
ble, revealed the nature of the federal government. In the process of
ratification sovereignty had not been transferred from the states to the
Union, but to the people, and then to the Union. "It was deemed nec-
essary," Marshall claimed, "to change this alliance into an effective
government" that both "possessed] great and sovereign powers, and
act[ed] directly on the people," and "deriv[ed] its powers directly from
[the people]."208 Thus the "government of the Union" was "emphati-
cally, and truly, a government of the people." It was also a government
of "enumerated powers": it could "exercise only the powers granted to
it" by the people. But though limited in its powers, the government of
204 For the debates see Register of
Debates, I5th Cong., ad Sess., Feb.
18, 22, 23, 24, 1819.
205 4 Wheat, at 363. 372.
206 Ibid., 402.
207 See the discussion of Marshall's
rhetoric in G. White, The American Ju-
dicial Tradition (1976), 25-32.
208 4 Wheat, at 404.
545
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