“I BELIEVE I MUST NOMINATE YOU”

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.}

CLASH OF THE TITANS II

A review of James F. Simon’s Lincoln and Chief Justice Taney: Slavery, Secession, and the President’s War Powers (2006)

(Rating:5 of 5)

In my pervious review, I described Simon’s other work, What King of Nation, as the struggle between two American icons: Thomas Jefferson and John Marshall. This book is slightly different, although it also features the struggles of a famous president with the chief justice of the Supreme Court; this book features an American Icon vs. an American villain. It is unusual for me to name any historical figure a villain, even when they hold views I find deplorable, because to me that would be strong presentism*. However, when I find the presence of such a historical figure to be so negative that it makes almost erases any good points they might have had, I feel obligated to call them out for what they are and that is a villain. I realize that mine is not a perfect system and one could go on and on over the details of various figures, but with this acknowledged I still say: that Roger Taney was an outright villain in American history whose presence we could have done without. Yes, I realize that he was useful to President Jackson during the Bank War, but I think President Jackson would found someone else to fill the role that he needed played, and his evil role in issuing the Dred Scot decision far overrides any good that he performed in his career. While Lincoln is the icon, who saved the Union and ended legalized slavery in the United States.

Simon gives Taney a fairer treatment than I would give him, detailing a good deal of his career showing that he was at one point a half-way decent chief justice. Someone who entered the national stage and had participated in big events, back when Lincoln was still a young man trying to find his place in the world. This makes his sudden turn during the Dred Scot case even more shocking. A man who at one point had earned praise of even those who had been Andrew Jackson’s opponents suddenly turns away from law and reason. Simon describes how Taney’s decision completely upends almost three quarters of a century of precedent, in order just to satisfy his personnel feelings.

“Taney did not offer a single source of proof for his sweeping generalization. He lumped all of those who signed the Declaration and the Constitution together, the slaveholders of the South with the opponents of slavery in the North. He dismissed the idea that the Declaration of Independence’s proclamation that ‘all men are created equal’ should be taken literally. Blacks were permanently excluded, according to Taney, because they were a degraded class.” p.122

Taney attempt to protect slavery though the court backfired on him. Instead, it only intensified things, and cost the Supreme Court under his leadership the respect of a great deal of the nation. The case was brought up in the Lincoln/Douglas debates where Lincoln accuses Presidents Buchanan and Pierce, Senator Douglas, and Taney himself of being in a conspiracy to force slavery over the whole nation. Lincoln was of course exaggerating, but his star was rising. Lincoln would win the election of 1860 in a close four-way race in which he would receive less the forty percent of the vote. Before Lincoln ever took the oath of office states were already abandoning the Union to avoid living under a president who was going to be openly hostile to the cause of slavery.

Lincoln began to take steps to save the Union, having avoided a mob in Baltimore, things started to take an even more dangerous turn with riots and state officials even trying to persuade Lincoln not to have troops at all in Maryland, to which Lincoln chastises them for.

“Maryland remained dangerously volatile. Secessionists in northern Maryland destroyed railroad bridges between Washington and the North and cut telegraph lines. The state legislature, dominated by southern sympathizers, was scheduled to meet in Frederick on April 26. Anticipating a secessionist vote, General Scott recommended to the president that he be given the authority to arrest secessionist politicians in advance. If Maryland voted to secede, he told Scott, he would act decisively to put down the rebellion with ‘the bombardment of their cities—and of course the suspension of habeas corpus.’ Those drastic measures were not immediately necessary. The legislature did not vote to secede. Meanwhile, northern troops managed to filter into the capital in increasing numbers by a circuitous route, first ferrying down Chesapeake Bay to Annapolis, then boarding trains to Washington.” p.186

Even with the arrival of the Union army, Simon describes and environment in which the threat of sabotage was still ever present. With that, President Lincoln suspended habeas corpus and had military commanders arrest suspected secessionists and hold them without trial. This would give Taney, traveling circuit, an ability to undermine the Union cause from within. He ordered the military to hand John Merryman, the army commander, General Cadwalader, refused to hand him over citing orders from the president himself. In his famous decision, Ex. Parte Merryman, Taney strips to the president down to the bare minimum of constitutional authority. Taney’s new position is one that clashed with his own history and views on presidential power and government authority.

“To achieve his goal of proving that Congress alone could suspend the writ, Taney systematically reduced the president’s constitutional powers to Lilliputian proportions. Here Taney displayed the artistry of a partisan trial lawyer rather than the detachment of a judge. His interpretation was starkly at odds with Taney’s own reading of presidential power when he had been President Jackson’s Attorney General. In defending Jackson’s broad constitutional powers in the Bank War, Attorney General Taney discovered deep wells of presidential authority, totally independent of both Congress and the Supreme Court. And Chief Justice Taney, in an earlier judicial opinion that raised an issue much closer to Lincoln’s plight in 1861, declared that the governor of Rhode Island could use martial law to put down an armed insurrection. The power to do so, Taney wrote in works equally applicable to the president of the United States, ‘is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of the Union as to any other government.’” p.192-3

So low was the public opinion in the Roger Taney, that Lincoln just ignored the order and proceeded as he intended to do. Lincoln would win the war and would receive monuments built in his name for generations. Taney would die in 1864, and be replaced by Salmon P. Chase, formally Lincoln’s Secretary of the Treasury. I strongly recommended James Simon’s book to anyone who is interested in some of the legal aspects of America’s Civil War.

*Presentism is the comparing people of the past to the morals of today. Link


{Video taken from the 1989 classic Glory}

CLASH OF THE TITANS

A Review of James F. Simon’s What Kind of Nation: Thomas Jefferson, John Marshall And The Epic Struggle to Create a United States (2006)

(Rating:5 of 5)

Thomas Jefferson and John Marshall were two of the most important men in our nation’s history. They both served in the American Revolution, Jefferson more famously as the author of the Declaration of Independence and as diplomat, and Marshall as a junior officer in George Washington’s army. Their careers, however, would intersect when they both reached their pinnacle. Thomas Jefferson as President of the United States and John Marshall as the Chief Justice of the United States Supreme Court. The battles between the Jefferson Administration and the Marshall Court were critical in shaping the government that we know today. In his work, What Kind of Nation, Simon describes these battles and recreates the world from which they had been fought.

Since Jefferson in this stage of his life, his political career from the 1770s onward, is better known even amongst us plain general knowledge historians, I found some of his descriptions on Marshall’s career far more interesting. George Washington’s recruitment of him as a congressional candidate, during a visit to Mount Vernon, with the former president’s nephew Bushrod, is one such adventure.

“Over the next four days, Washington flattered, cajoled, and entreated both men to agree to become candidates for Congress. Bushrod could not, and did not, refuse his esteemed uncle. Bust Marshall balked, even when Washington arrange another festive banquet in his honor in nearby Alexandria. He must make good on his debt, Marshall told Washington, and a seat in Congress would not allow him to do so. Finally, on the fourth day, Marshall decided to leave before sunrise to avoid another confrontation with his mentor. But Washington, anticipating his guest’s early departure, greeted him on the piazza—in full military uniform—and made a last plea to Marshall.” p.68

Marshall would not serve in Congress long. President Adams makes him the country’s new Secretary of State, after getting rid of his previous Hamilton-dominated Cabinet officers. After Adams stunning defeat to his own vice president, Thomas Jefferson, in the election of 1800, Adams begins to stuff the court with Federalist judges, appointing his own Secretary of State, Mr. Marshall, to the top job.

This sets the stage for the great battles that take place between the two American icons. The most famous of these is without a doubt, Marbury vs. Madison. The circumstances for this are very odd, and Simon points out in his book there were many reasons that the Chief Justice could have abstained from the case. Marshall was the Secretary of State whose commissions his predecessor refused to deliver. However, he carefully danced around those issues and gave the most important decision ever. He did not rule against the Jefferson Administration, in fact, they received what they originally asked for. He also ruled a part of the law, the part that gave the Supreme Court more power no less, unconstitutional.

“But although Marshall had satisfied the Republicans’ short-term interests by rejecting Marbury’s claim, he had purchased an enormous piece of constitutional real estate for the Court. Marbury v. Madison established the Court’s authority to declare an act of Congress unconstitutional, a power that would prove to be of historic significance in securing the institution’s parity with Congress. Marshall’s opinion also served notice that the Court, not the president, would be the ultimate judge of claims or executive privilege, an authority of seismic proportions.” p.187

Political battles raged the removal of justices sought through the method of impeachment, once successfully with John Pickering, once unsuccessfully with Samuel Chase. Ironically, the presiding officer of the impeachment trials was outgoing Vice President Aaron Burr who Thomas Jefferson and the Democratic-Republican Party had dumped in favor of George Clinton. The vice president had just been just been acquitted in a murder trial over the death of Alexander Hamilton*. Simon describes a Vice President Burr who is eager to have on grandee final on the stage of American politics, and give Thomas Jefferson more fits**.

A few years after his tenure as vice president, Burr is on trial himself for alleged treason to the country, the judge in his trial was none other than Chief Justice John Marshall who was riding circuit as Supreme Court justices did in Marshall’s time***. Simon tells this story in stunning detail and great analysis.

“The Burr prosecution produced an ironic reversal of roles for Jefferson and Marshall. The president, author of the Declaration of Independence and a supporter of many of the individual rights contained in the Bill of Rights, pursued Burr and his associates with a vengeance that ignored basic civil liberties. The chief justice, whose major libertarian concern was the protection of private property, became the vigilant defender of criminal suspects’ constitutional rights.” p.258

In his battles with Alexander Hamilton, one can conclude that Thomas Jefferson won in life and fame but Alexander Hamilton ended up with the nation that he, not Jefferson, wanted. With John Marshall, Jefferson is still more famous nationally and internationally, but Marshall’s career as chief justice surpassed Jefferson’s presidency by twenty-six years and his life by nine; in addition, it was Marshall’s view on the Constitution that prevailed, not Jefferson’s. With a brilliant narrative, James Simon brings these epic legal battles from the past back to life.

*Burr had killed Hamilton in a now famous duel, but the jury ruled it was a ‘fair fight’ and he was not guilty of murder.

**As if almost stealing the election of 1800 was not enough.

***This process ended in the early twentieth century.


{Video taken from PBS documentary The Supreme Court}