498
Interpreting and Preserving the Constitution
It would be erroneous to conclude, however, that the nationalism of
the Marshall Court reached into every nook and cranny of the Constitution, eclipsing the reserved powers of the States wherever it went. By today’s practices, it was very limited. The principal gains of the national
government were related to the commercial life of the young Republic,
and the States continued to function as powerful, independent entities in
public affairs. In the broad area of civil rights, for example, the Federal
government had no major role to play—and would not for another century. In keeping with the original purpose and meaning of the Bill of
Rights, a unanimous court, speaking through Chief Justice Marshall,
held in Barron v. Baltimore (1833) that the Bill of Rights was designed to
limit only the Federal government and did not apply to the States. Not until
the adoption of the Thirteenth, Fourteenth, and Fifteenth amendments,
otherwise known as the Civil War or Reconstruction Amendments, did the
Federal government acquire much jurisdiction over civil rights disputes in
the States. Even then, the main thrust of its involvement was the protection of the newly emancipated slaves in the post–Civil War era of Reconstruction and not such matters as freedom of speech and religion.
The States’ Rightists, resisting the Marshall court, viewed judicial nationalism with great apprehension, fearing that the practice of loose construction would set dangerous precedents and weaken the States. Although States’ Rights would later become a convenient peg upon which
to defend the institution of slavery, the doctrine was rooted in the Federal
Convention. And in the early days of the Republic, before slavery became a burning issue, States’ Rights was a constitutional theory that cut
across sectional lines between the North and South. One of the leading
States’ Rightists in the Federal Convention, we are reminded, was Elbridge
Gerry of Massachusetts. The States’ Rightist from Virginia, George Mason,
spoke against slavery and vigorously opposed it. States’ Rightists did
not share the Federalists’ vision of a great empire reaching from the Atlantic to the Pacific. They had strong attachments and loyalties to their
States, and generally distrusted centralized political power. The constitutional theories they advanced in support of strict interpretation were
almost fully developed by the time Thomas Jefferson was elected President.
These differing constitutional theories of interpretation between the