John Marshall by Jean Edward Smith
If Franklin Roosevelt is the undisputed champion of federal power in the last century, his 19th-century counterpart is surely John Marshall. It is fitting then, that a decade before Jean Edward Smith wrote his magisterial FDR (reviewed here), he devoted his scholarly attention to Marshall, the fourth, and greatest, Chief Justice of the United States.
Law students spend a disproportionate amount of their time reading the Supreme Court opinions of Marshall, which set not only the framework of commercial and constitutional law, but also determined the power and purview of the federal judiciary as well as the hotly-contested relationship between the federal and state governments. His decisions read like a laundry list of legal landmarks: Marbury v. Madison, Fletcher v. Peck, McCullouch v. Maryland, Dartmouth College v. Woodward, and Gibbons v. Ogden, just to name a few.
It was of some surprise then, to find that more than half of the 524 pages in Smith's John Marshall are dedicated to his life before taking the bench. Despite his youth relative to other Founding Fathers, Marshall managed to have a hand in most important events in our country's early life. The eldest of Thomas Marshall's fifteen children, his childhood was largely comfortable, though not luxurious. His father worked as a surveyor for Lord Fairfax (as did George Washington) and sought success in the west, eventually settling in the Kentucky frontier, then part of Virginia. Thomas had experience in the state militia, and when the Virginia convention authorized minutemen battalions in 1775, he was appointed as the Culpeper battalion's major. His son followed, and was commissioned a first lieutenant. When war came, both men saw their share of action, starting with an early skirmish in December 1775 at Norfolk:
"The alarm was immediately given," Marshall reported, "and, as is the practice with raw troops, the bravest [of the Americans] rushed to the works, where, regardless of order, they kept up a heavy fire on the front of the British column." At the same time, Colonel Stevens led the Culpeper riflemen onto some high ground to the left of the causeway, from which they sent a withering cross fire into the grenadiers' flank. Marshall's father, Major Thomas Marshall, assumed overall command of the troops at the breastworks; Lieutenant John Marshall was with the riflemen on the flank. Colonel Woodford subsequently reported to the Virginia convention that "perhaps a hotter fire never happened, or a greater carnage, for the number of troops" engaged.
The Marshalls also saw action at Brandywine and Germantown, and spent that famous winter at Valley Forge. John Marshall's experiences in the war, and the resulting attachments he felt to the nation, convinced him of the need for a strong federal government. After the war, Marshall studied law at the College of William and Mary, built a nascent legal practice in Richmond, and was elected to the Virginia House of Delegates. As the newly independent country struggled under the limitations of the Articles of Confederation, Marshall supported the Constitutional Convention's effort to strengthen the union:
His pragmatic nature resisted the adoption of a large number of a priori principles, but on four issues his views were firm. He believed in a strong central government, the supremacy of the constitution, the necessity for an independent judiciary, and the unalienable right to possess, enjoy, and augment private property. Marshall's views were consistent with the major currents of eighteenth century American thought. Locke, Blackstone, Hume, and Montesquieu--the writers most often cited in postcolonial America--stressed that the purpose of government was to protect private rights, especially the right to property, and that the tyranny of the majority was as much to be feared as the tyranny of the crown.
As the states began to consider the newly proposed Constitution, it became clear that Virginia would play the deciding role. By the time the question came to Virginia, eight states had ratified. One more was needed, and all eyes looked to the Old Dominion. Marshall maneuvered to ensure a convention was called, and that the enabling motion did not explicitly authorize amendments (as favored by anti-federalists like Patrick Henry, knowing it would scuttle the whole project if each state offered its own changes). An all-star cast was called to Richmond: Marshall, Henry, James Madison, James Monroe, George Mason, George Wythe, Edmund Pendleton, and more. From the start, the outcome was uncertain:
Opposite Henry, James Madison anchored the nationalist end of the spectrum. His tough-minded, interest-based view of politics defined the central thrust of the Constitution. "Let ambition counter ambition," he wrote in Federalist 51, and his advocacy of ratification without amendments was uncompromising. "The question on which the proposed Constitution must turn," he wrote to Edmund Pendleton, "is the simple one whether the Union shall or shall not be continued. There is in my opinion no middle ground to be taken." Marshall, who admired both Henry and Madison, captured the essence of their historic confrontation. Patrick Henry was much more than an orator, said Marshall. He was "a learned lawyer, a most accurate thinker, and a profound reasoner. If I were called uopn to say who of all the men I have known had the greatest power to convince, I should say Mr. Madison, while Mr. Henry had without doubt the greatest power to persuade."
Even in the crowd of luminaries, Marshall's incisive legal reasoning proved noteworthy; it may be that the nationalist views he would espouse from the bench got finely-honed during arguments with this company of giants. The federalists won, if only just (ratification passed 89-79), at which point Marshall was appointed to a committee charged with preparing proposed amendments. These "became the bases for the First, Third, Fourth, Fifth, and Eighth Amendments to the Constitution." Despite the heat and vigor with which the debate was joined, Marshall managed to remain on good terms with his political opponents, a skill he retained and put to good use throughout his career. In fact, he would even join forces with Henry as co-counsel on several high profile cases in the years ahead.
Marshall returned to the Richmond bar and quickly rose to prominence as one of the commonwealth's finest solicitors. The 1790s were a tumultuous time, and the legal arena was no different. A new country faces new issues and requires new precedents. The Virginia bar was beset with disputes, with cases especially numerous regarding land titles, debt repayments, and admiralty seizures. He remained politically active, and was amongst the most notable supporters of John Adams' policy of moderate neutrality (attacked by both Jefferson's Republicans and Hamilton's High Federalists). As a result of the high esteem in which Marshall was held, he was designated as one of the three peace emissaries sent to France to attempt to prevent open war, the mission that resulted in the infamous XYZ Affair. Marshall would subsequently serve in Congress and as Secretary of State before being nominated to the Supreme Court by the lame-duck Adams after John Jay declined to re-take the office:
Adam's decision came as a surprise, especially to Marshall. In retrospect, however, the choice appears inevitable. Apart from his devotion to the president, Marshall was one of the few Federalists to command the respect of both parties and one of the few who would bring to the Court both legislative and executive experience. He had represented the United States abroad with distinction, and, with the possible exception of Adams himself, no Federalist stood higher in public esteem. In addition, Marshall's legal skills were superb. His analytical mind and his pragmatic bent had made him one of Adams's most trusted colleagues, and his personal integrity was unchallenged.
Smith spends the latter half of the book examining in great detail the 34 years of Marshall's famed chief justiceship. He covers the shifting make-up of the court and the recurring struggle with radical Republicans to establish the independence of the judiciary. He also highlights the collegial atmosphere promoted by Marshall, resulting in a new practice of issuing an "Opinion of the Court" (usually unanimous and usually authored by Marshall) rather than individual, seriatim opinions. This practice continued through Marshall's tenure even as Republican executives filled the court with their own nominees (a great frustration to Jefferson, not dissimilar to that felt by Republican presidents in our own time). Smith also does a tremendous job discussing each term's important cases. He provides both the factual and procedural background to the key cases, examines the legal issues at stake, the arguments presented by counsel, and parses the court's opinions. Smith has a knack for discussing sophisticated legal issues in a layperson-friendly manner, a skill he also rightly credits Marshall with mastering.
One of the book's few real weaknesses is the dearth of information about Marshall's non-professional life, a stark contrast with Smith's thorough treatment of Roosevelt. Marshall appears to have been a devoted husband, particularly considering his wife's long years of invalidity, but there are few insights beyond that. This does not appear to be Smith's fault, however. Unlike many of his contemporaries who left prodigious records to be mined by historians, Marshall "saved none of his letters or memoranda and systematically destroyed his files at regular intervals."
If such records had survived, there is no doubt Smith would have cited them. As with FDR, Smith has demonstrated his scholarly chops with extensive endnotes (151 pages for 524 pages of text) and a 30-page bibliography. Smith put this research to good use, crafting a biography worthy of American's finest jurist. Marshall deserves a place in history for his non-judicial accomplishments; for his efforts on the bench he belongs on the shortlist of those most responsible for the nation's survival, growth, and prosperity.