John Marshall

INTRODUCTION

John Marshall and George Washington

JOHN MARSHALL IS THE GREATEST JUDGE IN AMERICAN history. As chief justice of the Supreme Court for thirty-four years—a record that still stands—he impressed, charmed, and defied colleagues, skeptics, and enemies, transforming an institution to which the Founding Fathers had given relatively little thought into a pillar of the nation. In 1801 when Marshall became chief justice, the job lacked “dignity,” as one contemporary put it, while the judiciary was, in the words of another, the “weakest” branch of the federal government. When Marshall died in 1835, he and the Court he led had rebuked two presidents, Congress, and a dozen states and laid down principles of law and politics that still apply. Now, when the Supreme Court makes the news every day it sits, and every time a new justice must be appointed, there is no question of its prominence—a prominence it owes, in the first instance, to Marshall, the man who made it.

But the most formative experiences of Marshall’s life came not in court but in battle. That was where he met George Washington, the man he called simply “the greatest Man on earth,” whose example would inspire and guide him for the rest of his life.

In September 1777, the Continental Army, led by commander in chief George Washington, met a British army led by Lord Howe at Brandywine Creek in Pennsylvania, thirty miles southwest of Philadelphia, the new nation’s capital. Washington lost the battle of Brandywine, and the British took the city. In October, he counterattacked at Germantown, a hamlet north of Philadelphia, but once again he was defeated.

Before the year ended, Washington faced a third fight. His troops were dug in behind a line of redoubts at White Marsh, northwest of the city; in early December, Howe and his men marched out of Philadelphia toward them.

Washington was threatened by more than the enemy. Congress, dismayed by the loss of the capital, demanded that he strike the enemy and recover it.

John Marshall was in Washington’s army that winter, a lieutenant in a Virginia regiment. He was tall, strong, and slovenly, with black hair and bright black eyes. He had recently turned twenty-two and was already a two-year veteran who had fought in four engagements. Decades later, in a biography of George Washington—the only book he ever wrote—he recalled his commander’s predicament at White Marsh.

Washington knew his troops were in no shape to launch another attack. They had fought two battles in two months and lacked shoes, uniforms, and weapons. Washington, wrote Marshall, had “too much discernment” and “too much firmness of temper” to be distracted by “the torrent of public opinion… the clamors of faction or the discontents of ignorance.” Yet if the enemy attacked, he must be ready to meet them. So “the American chief rode through every brigade of his army, delivering, in person, his orders respecting the manner of receiving the enemy, exhorting his troops to rely principally on the bayonet, and encouraging them by the steady firmness of his countenance, as well as by his words, to a vigorous performance of their duty.… The author states this on his own observation,” Marshall added (proudly: I was there; self-effacingly: he put it in a footnote). After two days of skirmishing, the British withdrew; Washington would not be lured from his prepared positions, and Howe decided it would be too risky to assault them. Marshall explained the enemy’s retreat thus: Howe’s return “to Philadelphia without bringing on an action, after marching out with the avowed intention of fighting, is the best testimony of the respect which he felt for the talents of his adversary, and the courage of the troops he was to encounter.”

Washington’s talents, soldiers’ courage: Marshall would never forget them. The revolutionary army drew patriotic young men from every state who risked privation, injury, and death for their common country. The man who commanded them struck where he could and stood firm when he had to; he was judicious, brave, and a leader of men.

For the rest of his life, John Marshall saw Washington as his commander and himself as one of his troops. In 1787, Washington left his postwar retirement to preside over the Constitutional Convention in Philadelphia. Marshall, still in his early thirties, was not yet eminent enough to be sent as a delegate to that meeting, but in 1788, he served in the Virginia Ratifying Convention in Richmond, defending the Constitution that Washington had signed. In 1798, Washington summoned his former junior officer to Mount Vernon and told him to run for Congress; Marshall obeyed. In 1799, after the great man died, it was Marshall who eulogized him, on the floor of the House, as “first in war, first in peace, and first in the hearts of his countrymen.”

But Washington was more than a hero to Marshall. He was a man with principles and an agenda, who had learned from the privations of his army the need for a capable national government, and who then worked as a Constitution-maker and president to design and lead one. How could Marshall support Washington while he lived and defend his handiwork after he was gone?

The most obvious way was politics, and Marshall had an abiding interest in it. In the first national two-party system that emerged in the 1790s, the party Marshall joined was the Federalists. Their policies were Washington’s: a strong federal government that could pay its debts, foster commerce, and sustain a unified nation in a turbulent world. Marshall was friendly with every prominent Federalist—Washington, John Adams, Alexander Hamilton, Timothy Pickering—even when, as their party began to sink at the turn of the century, they turned on each other. The only man Marshall ever hated was Federalism’s enemy and destroyer (and his own cousin)—Thomas Jefferson.

Federalism withered and died, new parties emerged; Marshall kept tabs on them all. He was touted as a presidential candidate himself in one election season, and in another he attended America’s first national political convention, organized by America’s first third party (the Marshall campaign went nowhere, as did the third party).

Yet although politics was a lifelong interest of Marshall’s, it was not his main one. He had a vocation, which was the law. His father, Thomas, had decided that his eldest child should be a lawyer; William Blackstone’s Commentaries on the Laws of England, then the most popular legal text in the English-speaking world, was part of John’s homeschooling. In 1780, while on a furlough from the army, he attended a course of lectures in the law at William and Mary—the only formal legal instruction he would ever receive, but since the course was given by George Wythe, one of the top legal minds in the country, it was first-rate. After the war, Marshall established a practice in Richmond, Virginia’s new capital, quickly joining the state’s legal elite. His practice was so engrossing that he refused several offers of national public office. In 1801, however, after serving in Congress and as secretary of state, he agreed to become the nation’s chief justice.

The Supreme Court that Marshall led was the federal government’s fledgling, almost its orphan. In twelve years, it had traveled, with the nation’s capital, through three cities—New York, Philadelphia, and the brand-new site on the Potomac; between terms, justices were required to ride circuit over hundreds of miles of woeful roads. Partly because of these hardships, three men had already cycled through the post of chief justice before Marshall took the job.

The law that the Court administered was in no better shape. Americans were already famously litigious, but the legal arena in which they struggled was poorly marked. Colonial precedents had been upset by the Revolution; many Americans, from pioneers on the margins of settlement to wealthy grandees, simply broke whatever laws there were, old or new. Americans went to court to scramble for land and to exploit new technology; to defend their religious and political beliefs and to attack the beliefs of their neighbors. Black men and red men went to court—mostly, though not always, unsuccessfully—for relief from injustices committed by white men; white men went to court to gouge each other.

At the helm of the Supreme Court, Marshall brought order to this chaos. He did it by expressing and implementing the principles he had imbibed from Washington and from other Federalists such as Alexander Hamilton. In a series of landmark decisions, he defended contracts and corporations from meddlesome state laws and struck down state-sponsored monopolies, unblocking what Hamilton called “the veins of commerce”; he affirmed the constitutionality of a national bank, one of the keystones of Washington’s economic policy; he compelled state courts to acknowledge the supremacy of the federal judiciary (Hamilton had likened unchecked state courts to “a hydra in government”); and he tried, in vain, to sustain Washington’s Indian policy, whereby native peoples who signed and honored treaties with the United States could keep their tribal lands. In 1801, Jefferson, who had been inaugurated president only five weeks after Marshall was confirmed as chief justice, complained that Federalism had “retired into the judiciary as a stronghold.” Marshall held his position as resolutely as Washington at White Marsh.

More important than the substance of Marshall’s rulings was what they said about the power of the Supreme Court and the nature of the Constitution. He disclaimed any intention to judge matters that were strictly political, but he insisted that in defense of the Constitution’s text or of constitutionally protected rights, the Supreme Court could overturn a law passed by Congress or compel a president to testify in a courtroom. In so ruling, he made the Supreme Court a definer of its own powers and a peer—sometimes, the superior—of Congress and the president.

Marshall was, at the deepest level of his thought, a populist; he believed that the people had expressed their incontrovertible will when they debated and ratified the Constitution. But until they willed something new, they and their representatives—citizens, legislators, and chief executives alike—were bound by their first foundational act. And the Supreme Court was a guardian—a protector and an expounder—of that act.

In his conduct as chief justice, Marshall imitated his former commander in chief as much as a judge can imitate a president or a general. Marshall’s description of Washington in action outside Philadelphia described what he himself wished to be. Some of the phrases he used—“firmness of temper,” “steady firmness”—applied equally to himself. If his courtroom exhortations were not always as stern as Washington’s battlefield appeals—Marshall listened and persuaded as often as he commanded—they were as persistent and as successful.

In one respect, Marshall exceeded his idol. Washington’s combined service as commander in chief during the Revolution (1775–83) and first president (1789–97) made him the nation’s chief executive for sixteen and a half years. But Marshall’s tenure as chief justice was more than twice as long.

When he died, he was eulogized as “a Federalist of the good old school of which Washington was the acknowledged head.”

THERE HAVE BEEN several excellent biographies of Marshall over the years, though not as many as record the lives of his great peers. Marshall’s career in the law keeps the number down: writers and readers fear that the subject is too technical. As someone who had even less legal training than Marshall had, I am forced in this biography to see and describe legalisms afresh. As a political journalist, I keep my eye, as Marshall always did, on the politics that surrounded him. As a storyteller, I try to show that the cases that generated his decisions were anything but technical. Blackstone wrote, early in his Commentaries, that society arose from “the wants and the fears of individuals.” The parties that came before Marshall’s Court wanted money, jobs, power; they feared chicanery, oppression, extinction, the noose. People do not go to court over nothing; every legal case is a short story.

Marshall’s career is a long story. Over four decades, he dealt with a shifting cast of judges and lawyers, many brilliant and willful, others odd, a few alcoholic or insane. He established his preeminence among them by the force of his mind, which one attorney general compared to “an Atlantic Ocean,” the minds of his peers being “mere ponds.” He established it also by his never-failing courtesy, good humor, and high spirits, lubricated by frequent applications of Madeira; during his tenure, the wine merchants of Washington, DC, called their best stuff “the Supreme Court,” in honor of his many purchases and his generous distribution of their wares.

There are gaps in the record of Marshall’s life. He left less to work with than other founders; he kept no diary or journal and was careless with his papers. (The modern collected edition of Marshall’s papers is twelve volumes long; the comparable edition of the papers of Hamilton, who lived thirty-two fewer years than Marshall, fills twenty-seven volumes.) Because I am interested in Marshall’s public career and its effects, I am less interested in some aspects of his life than others: less interested in his children than his colleagues, or in his wife than his enemies. Because they did affect his public career, however, I am interested in the games he played, the land deals he made, and what he learned from Alexander Pope.

There are also blots on Marshall’s record. In some of his greatest decisions, he contradicts himself, or nearly so; one of his characteristic techniques is to advance a sweeping principle, then draw back to hang his decision on a lesser point. He boldly defended Cherokee Indians; he did nothing for blacks. There were moments when even he lost heart; toward the end of his life, he feared that the great constitutional holding operation and defense of Federalism that was his career had failed.

Considering the Supreme Court’s role in American life today, we must also ask: Was John Marshall right? Is his vision of the Constitution as the supreme statement of popular will and the Supreme Court as its defender in fact workable? Do judicial guardians inevitably decay into unelected legislators? Are we too far away from the Constitution to think about it as intelligently, or care about it as passionately, as he did?

Marshall was a man of the founding who lived through the first third of the nineteenth century. His rulings touched on corporations and steam power, the Napoleonic Wars and the campaign against the slave trade. Washington’s devotee saw the age of Jackson. Although he did not foresee the precise cause of the Civil War, he feared his country would split apart, and he tried to prevent it. He was a backward-looking man who lived and ruled forward. The implications of his career reach even further forward, into our century.