to swamp the Court which received the approval of
four-fifths of the House of Representatives cannot be lightly dismissed
as an aberration. Was it due to a fortuitous coalescence of local
grievances, or was there a general underlying cause? That Marshall's
principles of constitutional law did not entirely accord with the
political and economic life of the nation at this period must be
admitted. The Chief Justice was at once behind his times and ahead of
them. On the one hand, he was behind his times because he failed to
appreciate adequately the fact that freedom was necessary to frontier
communities in meeting their peculiar problems--a freedom which the
doctrine of State Rights promised them--and so he had roused Kentucky's
wrath by the pedantic and, as the Court itself was presently forced to
admit, unworkable decision in Green vs. Biddle. Then on the other hand,
the nationalism of this period was of that negative kind which was
better content to worship the Constitution than to make a really
serviceable application of the national powers. After the War of 1812
the great and growing task which confronted the rapidly expanding
nation was that of providing adequate transportation, and had the old
federalism from which Marshall derived his doctrines been at the
helm, this task would undoubtedly have been taken over by the National
Government. By Madison's veto of the Cumberland Road Bill, however, in
1816, this enterprise was handed over to the States; and they eagerly
seized upon it after the opening of the Erie Canal in 1825 and the
perception of the immense success of the venture. Later, to be sure, the
panic of 1837 transferred the work of railroad and canal building to the
hands of private capital but, after all, without altering greatly the
constitutional problem. For with corporations to be chartered, endowed
with the power of eminent domain, and adequately regulated, local policy
obviously called for widest latitude.

Reformers are likely to count it a grievance that the courts do not
trip over themselves in an endeavor to keep abreast with what is called
"progress." But the true function of courts is not to reform, but to
maintain a definite status quo. The Constitution defined a status quo
the fundamental principles of which Marshall considered sacred. At the
same time, even his obstinate loyalty to "the intentions of the framers"
was not impervious to facts nor unwilling to come to terms with them,
and a grow