Canter, Marshall took occasion to bring out deductions remotely
germane to the pending case, but tending to broaden the scope of the
Federal power. In this instance, he declared that the constitutional
power to make a treaty carried the implied power to acquire territory.
This really gave authority to unauthorised acts of the Republicans in
purchasing Louisiana; but their remedy was an amendment and not a
decision which made the legislative and executive powers still more
dependent upon the judiciary.
Jefferson complained of these "obiter dissertations," which suggested
consolidating actions to other parts of the Federal Government. In the
trial of Aaron Burr for treason, Justice Marshall held that, according
to the Constitution, some overt act was necessary to constitute treason.
This practical release of his former political opponent was to Jefferson
as sore a grievance as Marshall's action in sending to him for certain
papers connected with the case. He declared the latter act a
presumptuous infringement upon the dignity of the Chief Executive.
The case of McCulloch _vs_. Maryland, in 1819, denying the right of
a State to tax a branch of the United States bank, afforded the court
an opportunity of dwelling upon the implied powers in the Constitution
and of giving judicial sanction to the various legislative acts already
done under them.
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