MARSHALL, JOHN (1755–1835)

John Marshall, the third chief justice of the Supreme Court (1801–1835), is still popularly known as the "GreatChief Justice" and the "Expounder of the Constitution." He was raised in the simple circumstances of backwoods Virginia, but his mother was pious and well educated and his father was a leader of his county and a friend of george washington. Even though Marshall had little formal education, his extraordinary powers of mind, coupled with equity and good humor, made him a natural leader as a young soldier of the Revolution, as a member of the Richmond bar (then outstanding in the country), and as a general of the Virginia militia. He became nationally prominent as a diplomat, having outwitted the wily Charles Talleyrand while negotiating with France's Directory (1797–1798), and as a legislator, having supported Washington's federalism first in the Virginia Assembly (1782–1791, 1795–1797) and then in the house of representatives (1799–1800). In June 1800 President john adams named Marshall to replace the Hamiltonian John Pickering as secretary of state, and in January 1801, after the strife-ridden Federalists' epochal defeat, appointed him Chief Justice when john jay, the first Chief Justice, declined to preside again over "a system so defective."

From its inception Marshall had defended the Constitution. His experience in Washington's ragtag army had made him a national patriot while rousing his disgust with the palsied Confederation. At the crucial Virginia ratifying convention (June 1788) he replied in three important speeches to the fears of patrick henry and other Anti-Federalists. The proposed Constitution, he argued, was not undemocratic, but a plan for a "well-regulated democracy." It set forth in particular the great powers of taxing and warring needed by any sound government. The state governments would retain all powers not given up expressly or implicitly; they were independently derived from the people. A mix of dependence upon the people and independence and virtue in the judges would prevent federal overreaching. If a law were not "warranted by any of the powers enumerated," Marshall remarked prophetically, the judges would declare it "void" as infringing "the Constitution they are to guard." Two other nonjudicial interpretations of the Constitution are notable. In 1799 Marshall wrote a report of the Virginia Federalists defending the constitutionality of the ill-famed Sedition Act of 1798 (a law he nevertheless had opposed as divisive in the explosive political atmosphere surrounding the French Revolution). If the necessary and proper clause authorizes punishment of actual resistance to law, he argued, it also authorizes punishment of "calumnious" speech, which is criminal under the common law and prepares resistance. A speech to Congress in 1800, once famous in collections of American rhetoric, defended the President's power required by jay ' streaty to extradite a British subject charged with murder on a British ship. Because the criminal and the location were foreign, Marshall argued, the question was not a case in law or equity for United States courts; although a treaty is a law, it is a "political law," the execution of which lies with the President, not the courts. The judiciary has no political power whatever; the President is "the sole organ of the nation in its external relations."

As Chief Justice, Marshall raised the office and the Supreme Court to stature and power previously lacking. After having two Chief Justices in eleven years, the Court had Marshall for thirty-four, the longest tenure of any Chief Justice before or since. Individual opinions seriatim largely ceased, and dissents were discouraged. The Court came to speak with one voice. Usually the voice was Marshall's. He delivered the opinion of the court in every case in which he participated during the decisive first five years, three-quarters of the opinions during the next seven years, and almost all the great constitutional opinions throughout his tenure. Marshall's captivating and equable temper helped unite a diverse group of justices, many appointed by Republican Presidents bent on reversing the Court's declarations of federal power and restrictions of state power. In the face of triumphant Jeffersonian Republicans, suspicious of an unelected judiciary stocked with Federalists, Marshall was wary and astute. His Court never erred as the jay court did in chisholm v. georgia (1793), which had provoked the eleventh amendment as a corrective. Nor did he cast antidemocratic contentions in the teeth of the Jeffersonians or their Jacksonian successors, thus to provoke (as had Justice Samuel Chase) impeachment proceedings. Marshall's judicial opinions encouraged grave respect for law, treated the Constitution as sacred and its Founding Fathers as sainted men, and fashioned a protective and compelling shield of purpose, principle, and reasoning.

His crucial judicial accomplishment was marbury v. madison (1803), which laid down the essentials of the American rule of law. Judges are to oversee executive and legislature alike, keeping the political departments faithful to applicable statutes, to the written Constitution, and to "general principles" of law protecting individual rights and delimiting the functions of each department. A series of important decisions secured individual rights, especially the right to acquire property by contract, against state and general governments. United States v. Burr (1807) expounded a narrow constitutional definition of treason and made prosecution difficult. sturges v. crown-inshield (1819) set strict standards for voiding debts by bankruptcy. fletcher v. peck (1810) and dartmouth college v. woodward (1819) enforced as judicially protected contracts a state's sale of land and a state's grant of a corporate charter. Finally, several of Marshall's most famous opinions elaborated great powers for the national government and protected them from state encroachment. mcculloch v. maryland (1819) sustained Congress's authority to charter a bank and in general to employ broad discretion as to necessary and proper means for carrying out national functions. gibbons v. ogden (1824), the steamboat case, interpreted congressional power under the commerce clause to protect a national market, a right of exchange free from state-supported monopoly. cohens v. virginia (1821) eloquently defended Supreme Court review of state court decisions involving federal questions.

The presupposition of Marshall's constitutionalism was that the Constitution is fundamental law, not merely a fundamental plan, written to impose limits, not just to raise powers, and designed to be permanent, not to evolve or to be fundamentally revised. Interpretation is to follow the words and purposes of the various provisions; amendment is for subordinate changes that will allow "immortality" to the Framers' primary work. Marshall called a written constitution America's "greatest improvement on political institutions." It renders permanent the institutions raised by popular consent, which is the only basis of rightful government. Besides, the American nation was fortunate in its founding: it benefited from a remarkable plan, from a fortunate ratification in the face of jealousy and suspicion in states and people, and from the extraordinary firmness of the first President. Washington had settled the new federal institutions and conciliated public opinion, despite the "infinite difficulty" of ratification and a crescendo of attacks upon his administration as monarchic, aristocratic, and anglophile. So Marshall argued in the penetrating (if somewhat wooden) Life of George Washington, a biography he condensed into a schoolbook to impress on his countrymen the character and political principles of "the greatest man in the world."

Marshall understood the Constitution to establish a government, not a league such as that created by the articles of confederation. The new government possessed sovereign powers of two sorts, legal (the judicial power) and political (legislative and executive). The special function of judges is to apply the law to individuals. It is a power extensive although not, Marshall consistently said, political or policy-oriented. Judicial jurisdiction extends as far as does the law: common law, statute law, Constitution, treaties, and the law of nations (which Marshall influenced by several luminous opinions). In applying the law to individuals, courts are to care for individual rights, the very object of government in general. By "nature" or by "definition," courts are "those tribunals which are established for the security of property and to decide on human rights." Such rights are contained either in explicit constitutional provisions and amendments, or in "unwritten or common law," which the Constitution presupposes as the substratum of our law (and which Marshall thought was spelled out in traditional law books, such as Sir william blackstone'sCommentaries on the Laws of England). In short, courts are to construe all law in the light of the rights of person and property that are the object of law—as well as in the light of the constitutional authority of the other branches.

Marshall was fond of contrasting the Americans' "rational liberty," which afforded "solid safety and real security," with revolutionary France's "visionary" civic liberty, which had led to a despotism "borrowing the garb and usurping the name of freedom." While trying aaron burr, Marshall repeatedly noted the "tenderness" of American law for the rights of the accused. His Life of Washington mixes praise of freedom of speech and of conscience with attacks on religious persecution. Yet Marshall also said that morals and free institutions need to be "cherished" by public opinion; he would not suppose that a free marketplace of ideas insures progress in public enlightenment. He did suppose that a rather free economic marketplace would lead to progress in national wealth. Marshall defended property rights in the sense of rights of contract or vested rights, rights that vest under contract and originate in a right to the fruits of one's labor and enterprise. By protecting industrious acquisitions the judiciary fosters the dynamic economy of free enterprise. Rational liberty is prudent liberty, which breeds power as well as wealth: the "legitimate greatness" of a "widespreading, rising empire," extending from "the Ste. Croix to the Gulph of Mexico, from the Atlantic to the Pacific." By directly securing the rights of property, courts indirectly secure the "vast republic."

While courts are "the mere instruments of the law, and can will nothing," or at most possess a legal discretion governed by unwritten principles of individual rights, the executive and legislature enjoy broad political discretion for the safety and interrelation of all. President and Congress are indeed subordinate to the Constitution of enumerated powers and explicit restrictions. Marshall did not follow alexander hamilton, and would not have followed some later Supreme Courts, in inferring a plenary legislative power. His arguments, however, take aim at enemies on the other flank, at Jeffersonian strict constructionists who allowed only powers explicit in the Constitution or necessarily deduced from explicit powers. A constitution of government is not a "legal code," Marshall replied, and its enumerated powers are vested fully and encompass the full panoply of appropriate means. In McCulloch, Marshall set forth the core of the American doctrine of sovereignty : the need for great governmental powers to confront inevitable crises. Maryland had placed a prohibitive tax on a branch of the national bank, and its counsel denied federal authority to charter a bank (a power not explicit in the Constitution). Ours is a constitution, Marshall replied, "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." Armies must be marched and taxes raised throughout the land. "Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive?" In a similar spirit Marshall defended an executive vigorous in war and foreign affairs and able to overawe faction and rebellion at home. He struck down, as violating Congress's power to regulate commerce among the states, state acts imposing import taxes or reserving monopolistic privileges. The arguments are typical. Great powers are granted for great objects. A narrow interpretation would defeat the object: the words must be otherwise construed. Thus a nation is raised. Individual enterprise, a national flow of trade, and the bonds of mutual interest breach barriers of state, section, and custom. The machinery of government is geared for great efforts of direction and coercion. The national sovereign, limited in its tasks, supreme in all means needed for their accomplishment, rises over the once independent state sovereignties. Marshall acknowledged the states' independent powers as well as the complexities of federalism: America was "for many purposes an entire nation, and for others several distinct and independent sovereignties." He tried above all to protect the federal government's superior powers from what the Framers had most feared, the encroachments of the states, more strongly entrenched in the people's affections.

Like virtually all of the Framers, Marshall was devoted to popular government. Yet shays ' rebellion of western Massachusetts farmers (1786–1787) had made him wonder whether "man is incapable of governing himself." He thought the new Constitution a republican remedy for the flaws of republican government, and for some time he thought constitutional restraints might suffice to rein the people to sound government. Marshall's republicanism encompassed both representative government and balanced government. The people are to grant their sovereignty to institutions for exercise by their representatives. A more substantial, virtuous, and enlightened Senate and President would balance the more popular House of Representatives, the dangerous house in a popular republic. Marshall came to be troubled by a decline in the quality of American leaders, from the great statesmen of the Revolution and founding, notably Washington, to the "superficial showy acquirements" of "party politicians." He came to be deeply disheartened by the tumultuous growth of democratic control, inspired by thomas jefferson and consummated by andrew jackson. A "torrent of public opinion," inflamed by the French Revolution, aroused the old debtor and states ' rights party during Washington's administration. It led to democratic societies, set up to watch the government, and then to a legislature that conveyed popular demands without much filtering. Marshall had anticipated that Jefferson would ally himself with the House of Representatives, and become leader of the party dominating the whole legislature, thus increasing his own power while weakening the office of President and the fundamentals of balanced government. During Jackson's terms (1828–1836), with the presidency transformed from a check on the majority to the tribune of the majority, Marshall favored reduction of its power, a tenure limited to one term, and even selection of the President by lot from among the senators. He called his early republicanism "wild and enthusiastic democracy," and came to doubt that the constitutional Union could endure in the face of resurgent sectionalism and populism.

The eventual dissolution of political balances made crucial Marshall's decisive accomplishment as he and Jefferson began their terms of office: the confirmation of the judiciary as interpreter and enforcer of the fundamental law. Although Marshall's opinion in Marbury denied that courts can exercise political power, it gave courts power to circumscribe the forbidden sphere, to determine the powers of legislatures and executives. Marshall's argument for this unprecedented judicial authority recalled "certain principles … long and well established." In deciding cases judges must declare what the law is. The Constitution is the supreme law. Judges must apply the Constitution in preference to statute when the two conflict—else the Constitution is not permanent but "alterable when the legislature shall please to alter it." The argument established the Supreme Court as enforcer of the constitutional government central to America's constitutional democracy. Marshall pointed to the horrors of "legislative omnipotence," only inconspicuously bestowing on courts a ruling potency as the voice of the Constitution. Marshall's opinion, the object of intense scrutiny ever since, was faithful to the constitutional convention's supposition that there will be some judicial review of statutes and to its suspicion of democratic legislatures. It did not confront certain difficulties, notably those of a Supreme Court (like the taney court in dred scott v. sandford, 1857) whose decisions violate the principles of the Constitution. Marshall's judicial reasonings were his attempt to keep judges, and his country, from violating the Constitution that preserves those principles.

Robert K. Faulkner
(1986)

Bibliography

Beveridge, Albert J. 1916–1919 The Life of John Marshall. 4 Vols. Boston: Houghton Mifflin.

Corwin, Edward S. 1919 John Marshall and the Constitution. New Haven, Conn.: Yale University Press.

Faulkner, Robert K. 1968 The Jurisprudence of John Marshall. Princeton, N.J.: Princeton University Press.

Holmes, Oliver Wendell 1952 John Marshall. Pages 266–271 in Collected Legal Papers. New York: Peter Smith.

White, G. Edward 1976 The American Judicial Tradition. Pages 7–34. New York: Oxford University Press.

Ziegler, Benjamin Munn 1939 The International Law of John Marshall. Chapel Hill: University of North Carolina Press.