John Marshall Part I
Many Americans know the names of Washington and Jefferson and could probably tell you a thing or two about that person but display little to no familiarity with a figure who rightfully claims a place alongside them as an important figure of the so-called founding generation: John Marshall. Cousin to Jefferson, revolutionary war hero, and “The Great Chief Justice” of the Supreme Court, Marshall permanently stamped the features of our Constitutional system and, in many ways, determined its future shape more than any other actor of his time. Marshall, through his decisions, established the authority of the Supreme Court and its power of judicial review (Marbury v Madison) but also expanded the power of the central government over the states.
Marshall is well known as a defender of the high federalist principles of commercializing the economy, expanding the scope of centralized authority, and holding inviolable the sanctity of contracts. At the same time Marshall, a remarkably practical man, would set aside principles if he thought a conflict of competing goods was involved. He consistently used the power of the Court to buttress his vision of an extended commercial republic and to thwart Jefferson’s idea of an Agrarian republic. The Marshall Court reached its apogee during the period after the War of 1812, where the National System (including the building of roads and canals), increased taxation, the formation of a national bank, and a military build-up all fit well into Marshall’s belief that the primary functions of government were security and the development of commerce.
Marshall believed deeply in American strength, and such strength could only be accomplished through acts of collectivization, so long as these acts didn’t undo the fundamental principles of liberty. His initial enthusiasm for the French Revolution, whose success he believed would determine the course of liberty, was soon enough undone by the unbridled and violent popular enthusiasms that soon followed. Marshall’s changing reaction mirrored his belief about popular government in general – that is, that the people are unruly and undisciplined – which he thought particularly apparent in state legislatures. He defended nationalizing power in part because he believed it would curb the excesses of populism at the state and local levels.
Marshall was the opposite of his cousin Jefferson, who reciprocated Marshall’s loathing of him: whereas Jefferson celebrated the virtues of the people but had difficulty relating to the average person, Marshall was more patrician in his politics but had a remarkable ability to relate to and befriend everyone. The stories of his common touch only slightly offset the concerns for his political anti-populism. This conflict became more pronounced when Marshall used the authority of the Court to protect the gains of the 1820’s from the encroaching mobocracy of Jacksonian democracy, that which Marshall spent the last years of his life fighting, and the last days of his life convinced was a losing battle. Marshall died nearly in despair that the carefully calculated system of government, mechanistic in its balance and complexity, would be overwhelmed by the raw energy of Jacksonian populism.
The depth of the conflict between Marshall’s faith in government and popular unrest shaped the journalist William Leggett’s obituary of Marshall. Leggett was an important New York editor whose newspaper editorials defended Jacksonianism to the extreme. Upon Marshall’s death, Leggett wrote graciously about Marshall’s remarkable lack of pretense, his refusal to put on airs, his “unaffected simplicity and kindness” and the familiarity of his general bearing. Having displayed his regard for Marshall the person, Leggett felt equal measures of revulsion at Marshall’s politics. Indeed, Leggett believed the death of Marshall provided the proper occasion to express satisfaction that “the enormous powers of the supreme tribunal of this country will no longer be exercised by one whose cardinal maxim in politics inculcated distrust of popular intelligence and virtue, and whose constant object, in the decision of all constitutional questions, was to strengthen government at the expense of people’s rights.” In perhaps the finest single example of obituary writing, combining congeniality and scorn in one swoop, Leggett wrote: “Of Judge Marshall’s spotless purity of life, of his many estimable qualities of heart, and the powers of his mind, we record our hearty tribute of admiration. But sincerely believing that the principles of democracy are identical with the principles of human liberty, we cannot but experience joy that the chief place in the supreme tribunal of the Union will no longer be filled by a man whose political doctrines led him always to pronounce such decisions of Constitutional questions as was calculated to strengthen government at the expense of the people. We lament the death of a good and exemplary man, but we cannot grieve that the cause of aristocracy has lost one of its chief supports.”
Was Marshall an aristocrat; or more accurately, did his thinking carry with it the tinge of aristocracy? Was Marshall not committed to the cause of human liberty? Everything we know from Marshall’s war experiences through his private writings indicates he believed liberty to be a great good. How fair is Leggett’s judgment? Certainly, Marshall used the power of the Court to keep state legislatures, hot with Jacksonian passion, from ripping apart the nationalist agenda. In Dartmouth College he blocked state legislatures from interfering with contracts, claiming that the original charter for the school was a contract that could not be altered. In Sturgis v. Crowninshield he undid state debtor laws which would have left creditors without recourse. In Gibbons v. Ogden Marshall used his expansive reading of the commerce clause to prevent states from stifling market competition, insisting that states had to surrender their sovereignty over shared waters.
The answer to how aristocratic a thinker he was can in part be found in Marshall’s thinking about the originating event of American politics. For Jefferson, each election signified a new originating event. No generation of persons, he believed, had a right to bind future ones by means of an enduring Constitution. Indeed, the conflict between Jefferson and Marshall may have peaked at the election of 1800, where Marshall consistently argued that the Constitution had to stabilize and direct political passions in such a way that the public voice had to be set aside in favor of more orderly succession. Jefferson argued in contrast that the election of 1800 was a “popular revolution” that merged with the Bill of Rights into a living doctrine of “higher law.” He saw Marshall’s court as a threat to the claims of a victorious president and his People. Marshall was not yet on the Court during the election; indeed, he was Adams’s Secretary of State and the person responsible for issuing the commission that would have resulted in Marbury’s judicial appointment but failed to deliver the commission prior to the termination of Adams’s administration. Marbury sued, and by the time the case made its way to the High Court, Marshall sat on the bench as Chief Justice.
We are left, then, with an apparent paradox. On the one hand, Marshall is dedicated to the causes of liberty and the rule of law. On the other hand, he genuinely feared unrestrained democracy. It is a commentary on our current sensibilities, really, that we might view such a position as a paradox. The cause of liberty, Marshall believed, could only be advanced with a picture of political order that contained restraints as an essential part of its nature. For Marshall, it was not popular will but rather the Constitution that determined the nature of the democracy. Put another way: elections revealed the temporary (and fleeting) will of the people, but the Constitution revealed their permanent will. If we think of Madison’s two-fold problem of human nature – how do we control the governed? How do we control those who govern them? – we might say that Marshall was more concerned about the former proposition than the latter. Still, his robust view of the federal judiciary indicates the latter was a concern as well. Nonetheless, there is something curious in Marshall’s view, and I believe this can be further enucleated by looking at his view of the origins of the Constitution.
In Federalist #39 Madison engaged in a sustained reflection on whether the Constitution was a federal act, a national act, or a confederal one. In short: who created the Constitution? Madison argued in the process of ratification the Constitution could not be thought of as a national act, that is, as derived from the common consent of the American people as an undifferentiated mass. Such a view, he claimed, would necessarily result in the tyranny of the majority. In terms of the organization of the government itself, the Constitution was a mixture of national (creating a consolidated government) and federal principles (the main depository of sovereignty remaining in the states). In terms of the operations of its defined powers, he argued, the Constitution was a national document; that is, the powers explicitly given to Congress applied equally to all the states. The actual extent of power, however, was limited by the sharing of authority with state governments (federalism). Madison’s argument looked at the details of the process, as well as the document, to argue that the Constitution was part national and part federal, but his overall argument made it clear that the national government was a creation of the states and not of “The American People,” which didn’t really exist.
Next week, we will examine Marshall’s reinterpretation of Madison’s argument and what it portended for the principles of federalism.
Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation
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