John Marshall: Definer of a Nation

When President John Adams utter the words "I believe I must nominate you" he committed--as Smith points out--the most important nomination since he had recommended that General Washington be made Commander-In-Chief of the American Army during the Revolutionary War. John Marshall is known as the `Great Chief Justice'. He was not the first but the fourth man to serve as Chief Justice of the United States; nevertheless it was he who would turn the Court into the institution it is today. John Marshall's accomplishment makes him probably the greatest public servant never to serve as president. I have read and reviewed Professor Smith's biographies of Presidents Grant and Franklin Roosevelt. One of the things that Professor Smith does extremely well is his ability to cut through the myth of any particular individual and get straight to the substance of who they really were. Here, in his first attempt, Smith succeeds in getting to the man behind the myth. Smith's Marshall is a Revolutionary solider whose nationalism is strengthened at Valley Forge along with men like George Washington and Alexander Hamilton. He becomes a successful lawyer who finds himself thrust into public service. Often he is pressured to enter the arena by the man who he admired the most: George Washington. Marshall greatly admired Washington and after the death of the first President of the United States, Marshall became his biographer. "In Marshall's opinion, the power of government derived from the express authority granted by the people. Unlike the British parliament, the American government was not sovereign, and when it acted in the economic sphere, it was bound by the same laws of contract as a private citizen. This view became law of the land in such leading decisions of the Marshall Court as Fletcher v. Peck and the Dartmouth College case. The holding in those cases reaffirmed the vested rights of property against governmental intrusion and helped set the stage for the growth of American capitalism." (p.108) As the Chief Justice of the United States, Marshall laid down what was to be the foundation of American constitutional law. Smith shows that Marshall was helping to do that even before he was on the bench, his action concerning the Robbins case during his stay in Congress is a good preview of what he would do on the court. This book was written in 1996, I wish some Supreme Court justices had read this prior to the disaster that was Bush v. Gore. "Marshall was drawing a distinction between legal issues and political questions. Not everything that arises under the Constitution involves a legal issue. Some matters are political. And the courts are empowered to render decisions on legal issues only. They have no authority to decide political questions. These are the province of the executive and the legislature. Three years later in the great case of Marbury v. Madison, Marshall employed that distinction to establish the authority of the Supreme Court to interpret the Constitution in matters of law. While explicitly recognizing that political questions might raise constitutional issues, Marshall stated that these questions were ultimately the responsibility of the president and Congress. The distinction that Marshall drew has become one of the cornerstones of American constitutional law. In the case of the Vietnam war for example, important constitutional questions were raised about war powers, but these were political questions not legal ones. Federal courts consistently declined to entertain suits testing the war's constitutionality, citing the distinction first articulated by Marshall in his speech on the Robbins case."(p.261)One of the myths that Smith shoots down is with the rivalry and hatred between him and President Jefferson. Smith does not say the rivalry did not exist but he shows that this developed as time went on; each side built up reasons not to like the other. A major part of myth that Smith breaks down is Jefferson's reasons for not liking the famous Marbury v. Madison decision, not because of the decision's ultimate result but rather minor technicalities with it. "It was judicial tour de force. Marshall had converted a no-win situation into a massive victory. The authority of the Supreme Court to declare an act of Congress unconstitutional was now the law of the land. Typically, Marshall's decision paid heed to the claims raised on both sides of the case. The High Federalists were awarded the nominal prize of hearing that Marbury was entitled to his commission, and the Republicans gained a victory with the dismissal of the rule to show cause. But the real winner was the Supreme Court an, some might say, the Constitution itself. The legal precedent for judicial review, that unique American doctrine that permits the Supreme Court to declare acts of Congress and the executive unconstitutional, traces the holding in Marbury v. Madison. Marshall did not say that the Supreme Court was the ultimate arbiter of the Constitution. He did not say that the authority to interpret the Constitution rested exclusively with the Court, and he certainly did not endorse grandiose schemes that envisaged the Supreme Court as a board of review sitting in judgment of each act of Congress to determine its constitutionality. He simply stated that the Constitution was law, and that as a judicial matter, it could be interpreted by the Court in cases that came before it." (p.323-4) Marshall would also lay down what would be the bane of the South's argument of the nature of the Union with important decisions that reinforced the position of the Federal Government over the states. "Marshall returned to Washington in early February for the 1810 term of the Court, a term that, with possible exception to 1803, would prove to be the most important during his tenure as chief justice. In 1803, in Marbury v. Madison the Court had established its authority to declare an act of Congress unconstitutional. In 1810, in another landmark case, Fletcher v. Peck, it would assert its authority to strike down state laws repugnant to the Constitution." (p.388) Probably the decision that most affected the nation as a whole, was the restatement of national supremacy that would become the bedrock of Constitutional law, John C. Calhoun be damned. "The Court's decision in McCulloch v. Maryland is a ringing restatement of national supremacy. Marshall's eloquent phrases have been invoked repeatedly by later generations of jurists and legislators to justify the expansion of national authority at the expense of the states. At the time, however, Marshall could not have envisioned the modern federal government with its greatly augmented powers to regulate the economy and promote social welfare. His decision was a defensive one. In 1819 the Court was concerned with preserving the Union against the powerful centrifugal forces that constantly threatened its dissolution. McCulloch did not so much expand federal sovereignty as restrict state sovereignty. As one scholar has written, the Court's intention was to enable the federal government to exercise its powers effectively and to prevent state encroachments upon its legitimate operations." (p.445)The final chapter deals with the Chief Justice's last years. He dies waiting for President Andrew Jackson to get done being president so that he can retire as the Chief Justice. Marshall does not make it; Jackson is elected to a second term defeating Marshall's favorite Henry Clay. Although President Jackson did not make any Supreme Court appointments that Marshall did not like, he clashed directly with Jackson on the rights of Native Americans. However popular support was not on the aboriginal people's side. The Court stood powerless to stop what would become the trail of tears. "The Supreme Court was on record. The Indian laws passed by the state of Georgia were unconstitutional. `The Court has done its duty,' Story wrote, `let the nation now do theirs.' But the nation was unwilling. Georgia again ignored the Court; Worcester and Butler remained in prison; and President Jackson is reported to have said, `Well, John Marshall has made his decision, now let him enforce it.' Jackson probably did not say that, and at that point the president had no responsibility for enforcing the judgment. The degree issued by the Supreme Court merely instructed Georgia to reverse its decision and release the missionaries. The Court adjourned shortly thereafter, which meant that the decree could not be enforced until the 1833 term and that the state would not be in defiance until then." (p.518)Like the other two books I read by Smith, John Marshall: Definer of a Nation is a great read. It is the book you want to read if you want to know about one of our most important figures in American jurisprudence, John Marshall.

John Marshall - Definer of a Nation by Jean Edward Smith is a biography of Marshall's life that thoroughly address both the events and chronology of Marshall's life and the substance and impact of his tenure as Chief Justice on the American constitutional system. I read this book, along with two others, to develop an appreciation of this second point. Of the three books, I believe that Dr. Smith's is the most appropriate for the general reader interested in Marshall's life and in both American and legal history. The other two books were also excellent, but approached their subject in different ways:* Those looking for a more concise treatment of Marshall's career might want to consider James Simon's What Kind of Nation which describes the conflicts (philosophical, political, legal, and personal) between Chief Justice Marshall and President Thomas Jefferson who both took office in 1801. Their struggle over the interpretation of the Constitution was nearly as fundamental to the evolution of our current constitutional framework as were the constitutional convention and state ratifying conventions.* The Great Chief Justice by Charles Hobson is a biography of John Marshall focused almost entirely on Marshall's judicial career and Supreme Court decisions. It also provides a thorough description of the evolution of the American legal system that influenced the development of Marshall judicial philosophy early in his career and then was shaped by the decisions of the Supreme Court under his leadership. Hobson has produced an excellent and scholarly work. However, it is not light reading - I found myself referring to Black's Law Dictionary every few pages.Now, I'll get back to Dr. Smith's book. His description of Marshall's military service during the Revolutionary War provides an especially useful insight into his future political and legal beliefs. Marshall served as a junior officer under Washington during some of the most difficult phases of the revolution, including the winter at Valley Forge. From this experience, Marshall developed a reverence for his commander and lifelong bonds with fellow officers from different states. Collectively, these officers saw themselves as Americans rather than as citizens of separate states. Marshall also developed a firsthand appreciation of the problems created by the weakness of the Continental Congress which repeatedly failed to provide the funding, arms, clothing, and food necessary to maintain the army. During this period, it was common for senior officers to pay for supplies out of their own pockets. Smith suggests that Marshall's experience with the drawbacks of a weak central government was a major factor in his future affiliation with the Federalist Party and support for a strong national government. I think this conclusion can be expanded to a much broader statement: Officers in the Revolutionary War tended to become Federalists while individuals who spent the war in civilian capacities (Jefferson and Madison) became Republicans. There were certainly exceptions in both cases, but the pattern appears to be pretty strong.When Marshall became chief justice in 1801, he was faced with two challenges: Restoring the tarnished reputation of the court and defining the extent of the court's authority.The entire federal court system, including the Supreme Court, had earned a reputation for political bias in the years preceding 1801. This was the period when the Alien and Sedition Acts were in effect. The Sedition Act made printed or verbal criticism of the president or congress a criminal offence, in clear violation of the First Amendment to the Constitution. The Adams Administration, together with the Federalist judiciary, used this act to attempt to silence the Republican press in the 1800 election. As a measure of political safety, the acts were written to expire at the end of Adams' term, just in case a Republican defeated him in 1800. In 1801, literally all federal judges had been appointed by Federalist presidents and, in many cases, had played active, partisan political roles from the bench. Most notorious of these politically active judges was Associate Justice Samuel Chase, the only Supreme Court justice ever impeached (but acquitted) by Congress. During the period when the Alien and Sedition Acts were in effect (1798-1801), Chase was known for his inflammatory charges to juries. As an example, he instructed one jury in a case under the Sedition Act that the defendant's attempt to demonstrate the truth of his statements was clear evidence that he was guilty of sedition. Marshall, although a Federalist himself, understood that one of his first responsibilities as Chief Justice was to restore the reputation of the federal courts as non-political and objective bodies in which a defendant could expect a fair trial. At the same time, he needed to protect the courts from retaliatory political attacks by the Republicans who now controlled the presidency and congress. He managed to curb the excesses of Chase and most other judges. Chase, although impeached, was acquitted by the Senate, in large part because the prosecution of the case was led by John Randolph of Roanoke, who was not an experience or effective prosecutor. To the best of my knowledge, only one judge, from a lower federal court in New Hampshire, was actually removed from the bench. In this case, the judge was literally unbalanced mentally, heard cases while drunk, and refused to perform his judicial duties when it didn't suit him.During his first years on the court, Marshall focused on damage control and rebuilding the court's reputation. In parallel, he worked privately with the other Supreme Court justices to form the court into an effective judicial team that spoke with one voice whenever possible. To do this, he sought to develop a consensus of opinion with his associates prior to deciding major cases. During these years, the justices met in Washington for only brief sessions of a month or two each. Each justice also was assigned to preside over federal circuit courts in specific states (Marshall covered Virginia and North Carolina). Consequently, the justices typically maintained their homes in their native states and arranged temporary lodging in Washington when the court was in session. Marshall used this situation to his advantage by arranging rooms and board for all justices in the same establishment for most of his term as Chief Justice. By lodging together and dining together in a private setting, the justices were able to engage in lengthy discussions of the court's business and develop the consensus that Marshall sought. An incredible number of the constitutionally important cases heard during Marshall's 34 years as Chief Justice were decided with unanimous opinions that left no doubt of the court's position.Marshall did not take on a major constitutional case or attempt to define the extent of the court's authority during his first two hears on the court. Whether by plan or fortuitous accident, this low profile period allowed him to prepare the court for the task of defining its role and the extent of its powers. When Marbury v Madison came before the court in 1803, Marshall and the court were ready for what became the most important case in US constitutional history. In the decision, Marshall established beyond any doubt the court's authority to exercise judicial review of laws passed by the congress and signed by the president. This authority made the court effectively co-equal with the other two branches of government. Lacking this authority, the court would have remained a weak appendage to the government. I'm not going to go into details on Marbury v Madison here. I've discussed the origins of judicial review in my review of Hobson's The Great Chief Justice and have described the political background of the case in my review of Simon's What Kind of Nation.

Excellentread