Saturday, July 7, 2012


A review of Jean Edward Smith’s John Marshall: Definer of a Nation (1996)

(Rating 5 of 5)

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. 

Chief Justice John Marshall

            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)

George Washington, Marshall's idol

            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)

Thomas Jefferon, he and Marshall were cousins but not friends

           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)

Andrew Jackson, a president Marshall did not like

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.

{Video is a little movie about McCulloch v. Maryland.}

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