A single illustration of his avoidance of all theory and his adherence to the words of the Constitution will suffice. In the case of the _United States_ v. _Fisher_ the constitutional question involved was the power of Congress to give to the United States a preference over all other creditors in the distribution of the assets of a bankrupt. Such an act can be upheld on the ground that all governments have necessarily the right to give themselves priority. Not so Marshall. To him the act must be supported, if supported at all, not on any theory of the innate nature of the government, national or otherwise, but as a reasonable means of carrying out one of the express powers conferred by the Constitution on the Federal government. Thus, he upholds the act in question because of the power expressly conferred on the Federal government to pay the debts of the union, and as a necessary consequence of this power the right to make remittances by bills or otherwise and to take precautions which will render the transactions safe.
It is important to emphasize the fact that Marshall adhered in his opinions to the Constitution as written, not only because it is a fact which must be recognized if we are to understand the correct value of his work in the field of constitutional law, but also because there exists to-day a popular impression that by implication he stretched to the utmost the powers of the Federal government. This impression is due primarily to the ignorance of many of those who have undertaken to praise him. During his life he was charged by followers of the States Rights School of political thought with upholding Federal power in cases not warranted by the constitution. Later, however, those who admired a strong national government, without taking the trouble to ascertain whether the old criticism by members of the States Rights Party was just, regarded the assumption on which it was founded as Marshall's best claim to his country's gratitude.
As a constitutional lawyer, Marshall stands without a rival. His work on international law and admiralty is of first rank. But though a good, he was not a great, common law or equity lawyer. In these fields he did not make new law nor clarify what was obscure, and his constitutional opinions which to-day are found least satisfactory are those in which the question to be solved necessarily involves the discussion of some common-law conception, especially those cases in which he was required to construe the restriction imposed by the Constitution on any state impairing the obligation of contracts. His decision in the celebrated case of _Dartmouth College_ v. _Woodward_, in which he held that a state could not repeal a charter of a private corporation, because a charter is a contract which a subsequent act of the state repealing the charter impairs, though of great economic importance, does not touch any fundamental question of constitutional law. The argument which he advances lacks the clearness and finality for which most of his opinions are celebrated. It is not certain with whom he thought the contract was made: with the corporation created by the charter, with the trustees of the corporation, or with those who had contributed money to its objects.