John Marshall as Constitutional Statesman*
John Marshall was appointed Chief Justice of the Supreme Court of the United States by John Adams in February 1801 in one of his last acts as President. Marshall not only embodied a form of statesmanship in his jurisprudence but also in his career prior to serving on the Court. Marshall served as an officer and sharpshooter in the Virginia Line during the War for Independence. He later served as a highly esteemed diplomat in the famous XYZ Affair during the administration of John Adams. “His dispatches defending American honor and dignity against the insulting behavior of the French catapulted him to the status of national hero.”[1] Upon his return from France, Philadelphians crowded the streets to honor him during a Federalist-planned parade.
After years of private sacrifice as a soldier, Virginia House of Delegates member, diplomat, and delegate to the Virginia ratifying convention, Marshall wanted to focus on building his lucrative law practice and his reputation as one of Virginia’s leading attorneys. Upon George Washington’s persistent pleas, however, which he could not resist, Marshall left his law practice to run for Congress. He was a Federalist running for election in a district dominated by Jeffersonian Republicans, but with Patrick Henry’s endorsement, Marshall was elected to Congress from Richmond, Virginia. In Congress he ended up casting the deciding vote in 1800 to repeal the Sedition Act, much to the chagrin of his Federalist colleagues. He later served briefly as secretary of state under John Adams and backed the Convention of 1800 that ended the undeclared Quasi-War with France. He was then appointed Chief Justice.
Despite what would develop into growing antipathy between Thomas Jefferson and Marshall, Jefferson asked Marshall if he would serve as acting Secretary of State until James Madison’s delayed arrival in Washington, D.C. Jefferson also requested that Marshall administer the oath of office to him, as Chief Justice, thus beginning a tradition that has continued for 224 years.
Today, over two centuries after the landmark case of Marbury v. Madison in 1803, the legacy of John Marshall remains strikingly relevant. The longest-serving Chief Justice in American history at thirty-four years (1801–1835), John Marshall had more impact in shaping the Supreme Court and in interpreting the Constitution than any justice in American history. In Marbury v. Madison, he definitively established the role of the Court as the final arbiter of authority in interpreting the Constitution. In McCulloch v. Maryland, he firmly established the doctrine of implied powers. These ideas were not novel. James Madison had discussed implied powers extensively in Federalist 44. Indeed, Marshall seems to directly paraphrase Madison’s language regarding the necessary and proper clause in discussing the justification for Congress to create a national bank. Likewise, Marshall’s assertion of judicial review in Marbury echoed Alexander Hamilton’s theoretical argument in support of the concept in Federalist 78. Marshall was working largely on a blank slate, but as Robert Faulkner observes, “It is not open to question that The Federalist helped to fix Marshall’s constitutional constructions.”[2] Faulkner adds that Marshall later described The Federalist from the bench as “a complete commentary on our constitution” always “considered as of great authority,” whose “intrinsic merit entitles it to this high rank.”[3]
The fact that Marshall was the first Chief Justice to face questions of great import concerning the scope and authority of the new national government, and of the relationship between the states and the federal government, certainly had a role in defining Marshall’s importance as a major figure in American history. As Oliver Wendell Holmes once stated, much of Marshall’s “greatness consists of his being there.”[4] But there was more to Marshall’s greatness than simply being in the right place at the right time. As Justice Benjamin Cardozo wrote, “A hush falls upon us even now as we listen to his words.”[5] Indeed, Marshall is widely acknowledged to have been the greatest justice to ever serve on the Supreme Court. A survey of sixty-five law school deans, law professors, historians, and political scientists, completed in 1970, confirmed Marshall’s lofty status at the top of the list of all justices who had served on the Supreme Court between 1789 and 1969.[6] Interestingly, Marshall’s esteemed colleague, Justice Joseph Story, was ranked second among the ninety-six justices who had served on the court from 1789 to 1969.
Marshall’s Youth and Education
The oldest of fifteen children, Marshall shared responsibility with his parents for raising his brothers and sisters. Like Lincoln, Marshall was largely self-educated. But unlike Lincoln, whose father was illiterate and did not share his son’s love of books, Marshall’s father, Thomas, though self-taught, was remarkably learned. He had a nicely stocked library, some of his books were borrowed from Lord Thomas Fairfax. Lord Fairfax was Oxford educated and owned 5 million acres of land, roughly one quarter of Virginia. Fairfax’s vast library, and his Greenway Court estate, became a cultural hub for Thomas Marshall, George Washington, and others. Marshall encouraged his son to read Livy on Roman history, the English writers (Alexander Pope, John Milton, and William Shakespeare), and the classics on law, especially William Blackstone’s Commentaries on the Laws of England.[7]
Marshall’s formal education was limited, but it included one year of study, at the age of fourteen, with the Reverend Archibald Campbell at an academy in Westmoreland County, Virginia, where James Monroe was a classmate. Thomas Marshall also provided room and board for a year to the Reverend James Thomson of Scotland, who taught the Marshall children Latin well enough for John to translate the works of Livy and Horace. Marshall’s education also included several weeks of intensive legal study with the well-known scholar, George Wythe, at the College of William and Mary. Wythe had mentored Thomas Jefferson, and later Henry Clay, among others, and his teaching had great impact on Marshall. In addition to Blackstone, Marshall became immersed in the works of Montesquieu and David Hume. So impressed was Wythe that he invited Marshall to join Phi Beta Kappa after just one term of study at William and Mary.[8]
There was no experience more formative in Marshall’s young life than his service in the Revolutionary War. Marshall was among the first to enlist in the Virginia Line of the Continental Army in 1775, shortly after news of the violent skirmishes with the British at Lexington and Concord reached Virginia. Marshall was eighteen years old at the time that he was commissioned as a second lieutenant. Later he would be promoted to lieutenant and then to captain. Marshall’s father, Thomas, was appointed as the battalion’s major. Soon after being commissioned as an officer, John Marshall experienced his first combat with British regulars at the battle of the Great Bridge outside of Norfolk, Virginia. The British soldiers suffered heavy losses in a frontal assault over the Great Bridge. John Marshall was among the riflemen repelling the attack.
Marshall’s company was later assigned to Colonel Daniel Morgan’s elite rifle regiment, the 11th Virginia, which was composed primarily of sharpshooters.[9] As Jean Edward Smith notes in his brilliant biography, Marshall and his compatriots “were delighted at the opportunity to serve with Morgan. They knew that his riflemen were always in the vanguard of the army—the first to be deployed as skirmishers and the last to be called off.”[10] Marshall fought with George Washington at Brandywine and Germantown, and was with Washington during the brutal winter at Valley Forge. In his biography, Life of Washington, Marshall wrote: “At no period of the war had the situation of the American army been more perilous than at Valley Forge. Even when the troops were not entirely destitute of food, their stock of provisions was so scanty that a quantity sufficient for one week was scarcely in store.”[11] Marshall noted that 3,989 men in camp were “unfit for duty for want of clothes.” There “is no question,” writes Smith, “that the war, and especially the duty at Valley Forge, helped to form Marshall’s character.” Smith elaborates: “As commander of a small unit, he became familiar with the nature of military leadership and the importance of setting an example for his troops. . . . Marshall developed an easy, unaffected style in which command seemed to come naturally. In later years, soldiers who had served with him at Valley Forge described the future Chief Justice as the most cheerful and optimistic man they knew.”[12] According to one account, he was “idolized by the soldiers and his brother officers.”[13]
There is no question but that Marshall’s wartime experience was critical in shaping his efforts to enhance national sovereignty and authority during his tenure as Chief Justice. “As a young man on General Washington’s staff,” Archibald Cox observed, Marshall “saw first-hand at Valley Forge the costs of self-interests, selfish pride, and constant rivalry among thirteen sovereign States—costs measured by unfilled quotas, departing militiamen, and half an army in the snow without blankets or shoes.”[14] Smith notes that much later in life, Marshall told Joseph Story that the war confirmed his habit of considering America as his country and Congress as his government. “I had imbibed these sentiments so thoroughly,” Marshall said, “that they constituted a part of my being.”[15]
Marshall’s nationalism, and his steadfast commitment to union, was articulated very clearly in his opinion for the court in two cases: McCulloch v. Maryland (1819) and Cohens v. Virginia (1821). In McCulloch, he wrote: “The government of the Union . . . is, emphatically and truly, a government of the people. In form and substance it emanates from them, and for their benefit.”[16] In Cohens v. Virginia, Chief Justice Marshall “expansively read the judiciary article as conferring on the Supreme Court broad jurisdiction to decide cases involving the conflicting powers of the federal and state governments.”[17]
Marshall’s Personality and Leadership: How He Shaped the Court
Just as George Washington labored carefully to establish precedents that would define and shape the institution of the presidency as an office of great prestige and authority, John Marshall had a profound impact in shaping the Supreme Court as an indisputably coequal institution with the executive and legislative branches of government. He did so by carefully cultivating relationships with his colleagues on the Court and by introducing procedures and customs that would last far beyond his tenure as Chief Justice.
Leadership came naturally to Marshall as it had when he served as an officer in the Revolutionary War. Marshall had an innate dignity of the type he had written about in his eulogy to the nation upon the death of his hero, George Washington. But unlike Washington, who had a fierce temper, a stern demeanor, and could be quite direct, Marshall was as even keeled, collegial, and unassuming as any leader in American history. Among twentieth-century leaders, his demeanor and personality are probably similar, in some ways, to Senate Leader Mike Mansfield, House Speaker Nicholas Longworth, and the late Chief Justice, William Rehnquist.
On the court, Marshall would lead by example with a kindly and compassionate approach based on open consultation and good humor. He would rely on his wealth of experience and keen intellect to guide him. For a man of such talent and accomplishment, Marshall remained humble and deferential. Charles Hobson, the editor of The Papers of John Marshall, notes that Marshall’s “abundant charm, sociability, kindness, and unaffected modesty” served him well as leader of the court.[18]
At Marshall’s behest, the justices lodged together in a local boardinghouse during the term of the court. “In this informal boardinghouse setting,” Hobson notes, the court “seamlessly mixed official business with the pleasures of social life,” thus allowing the Chief Justice to enjoy “the full play of his captivating personality.”[19] Hobson adds: “From the outset, he sought to make the Court both a collegial and an efficient institution by bringing the Justices together under the same roof. Instead of going their separate ways after the Court adjourned each day, the Justices reconvened at their boardinghouse to consult about cases. The boardinghouse conference was Marshall’s best opportunity to exercise leadership, notably in persuading his brethren to sign on to a single opinion of the Court.”[20]
Marshall’s “mastery of public and constitutional law gained him the immediate respect and deference of his fellow Justices. Already a statesman of great renown, Marshall raised the Court’s prestige from the moment he donned the robe.”[21] Hobson adds that Marshall “was imbued with a sense of mission to make judicial power an effective instrument of governance in the federal system established by the Constitution. This animating higher purpose no doubt served him well in motivating his associates and instilling an institutional esprit de corps.”[22]
Early descriptions of Marshall as Chief Justice convey his austere and unpretentious nature. In 1803, William Wirt, a fellow member of the Richmond bar, offered a glimpse of Marshall that is practically interchangeable with descriptions of Abraham Lincoln a half century later. Wirt described Marshall as “tall, meager, emaciated—muscles relaxed, and his joints so loosely connected,” as to prevent any graceful action. “Without advantages of person, voice, attitude, gesture or any other ornaments of an orator—one of the most eloquent men of the world.”[23]
Joseph Story, as a twenty-eight-year-old attorney practicing before the Supreme Court, wrote in a letter to his friend that “the first impression of a stranger,” upon introduction to Marshall, “was generally that of disappointment. It seemed hardly credible that such simplicity should be the accompaniment of such acknowledged greatness. . . . You would never suspect . . . that he was a great man; far less that he was the Chief Justice of the United States.”[24]
But Story went on to say that beneath the surface appearances there were indeed impressive qualities in Marshall. “His manners are plain yet dignified; and an unaffected modesty diffuses itself through all his actions. . . . His thoughts are always clear and ingenious, sometimes striking. . . . He possesses great subtlety of mind.”[25]
Story concluded his letter by noting that Marshall’s “genius is, in my opinion, vigorous and powerful.” He “examines the intricacies of a subject with calm and persevering circumspection, and unravels the mysteries with irresistible acuteness.”[26] Three years after writing this letter, Story was appointed to the Supreme Court by the Republican President James Madison. In 1828, many years after his appointment to the Court, and long after knowing Marshall as a close colleague, Story would describe Marshall’s constitutional opinions as “those exquisite judgments, the fruits of his own unassisted meditations, from which the Court has derived so much honor.”[27]
Beneath the easygoing and often disheveled exterior, Marshall was a human dynamo. He usually began his day before sunrise with a vigorous walk of several miles. John Quincy Adams, during his tenure as President of the United States, frequently accompanied Marshall on these power walks. By noon, Marshall had frequently put in a full day’s work.[28] Law professor G. Edward White adds that during Marshall’s thirty-four years as Chief Justice, he authored fully 519 of the court’s 1,006 cases that had full written opinions.[29] White adds that while there is abundant evidence that Marshall “sought out and enjoyed leisure . . . the impression he creates is that of a man with a peculiarly quick, penetrating, and facile mind, able to take a variety of intellectual short cuts.”[30]
In addition to having the capacity for managing a large workload, Marshall also was an institutional innovator, not just in his ability to set legal precedents, like judicial review, but also in his introduction of procedural precedents. In one of his first acts as Chief Justice, Marshall discouraged the practice of seriatim opinions and began the practice of the Court speaking with one voice. Talbot v. Seeman became the first case in American history in which the court labeled their decision the “Opinion of the Court.”[31] As Jean Edward Smith notes, “Marshall, amiable, unassuming, and considerate as always, not only brought his boardinghouse colleagues into a unanimous agreement concerning the law but also convinced them that the Court should speak in one voice.”[32]
Charles Hobson observes that as precedent for the single opinion practice, Marshall “could point to Lord Mansfield, Chief Judge of England’s Court of Kings Bench in the late eighteenth century, and to Judge Edmund Pendleton of the Virginia Court of Appeals, before whom the future Chief Justice had argued cases in the 1780s and 1790s.” By having the Court speak with one voice, Hobson writes, “Marshall recognized the advantages of a single statement in imparting weight and authority to the Court’s pronouncements, thereby promoting certainty and stability in the law. The public would come to perceive the Court as a unified and independent institution whose judgments were formed by solemn collective deliberation.”[33] In speaking with one voice, “the Court would enhance its authority and prestige while the Chief Justice as its spokesman would become the personal embodiment of its stature and dignity.”[34]
During most of Marshall’s term as Chief Justice, the Supreme Court conducted oral arguments in the chamber below the old Senate, near the rotunda of the Capitol. Drawing on contemporary accounts of that era, Professor Hobson states that Marshall presided over the Supreme Court’s proceedings “with wisdom, dignity, and impartiality—virtues of the ideal judge—which were accompanied by a self-effacing modesty, benign temper, and kindly manner.”[35] Hobson adds that Marshall was noted for being “exceedingly kind and courteous to the Bar,” listening to their arguments “with the greatest attention.”[36]
Conclusion: The Legacy of John Marshall
Professor Hobson notes that the Marshall Court reached its zenith of influence in the period from 1811 to 1824. “In a series of unanimous or near-unanimous decisions,” Hobson writes:
the Supreme Court affirmed Congress’s implied powers, broadly interpreted Congress’s power to regulate commerce, struck down state laws that conflicted with the principle of federal supremacy or that violated the Constitution’s prohibition against laws impairing the obligation of contract, asserted broad jurisdiction to decide cases arising under the Constitution and laws of the United States, and sustained its appellate power over the state judiciaries. Most of these cases originated in the state courts and came to the Supreme Court by writ of error, as provided by section 25 of the Judiciary Act of 1789.[37]
Throughout his tenure as Chief Justice, Marshall steered the court relentlessly but cautiously toward greater independence and authority. But Marshall’s interests went beyond the immediate concern for the judiciary. Above all, he wanted to enhance national power and national sovereignty. The doctrines of judicial review and implied powers set forth in Marbury and McCulloch went far in achieving these goals. Marshall’s opinions in these cases showed what Robert McCloskey has described as a deft balance between boldness and restraint.
John Marshall died in 1835, but his impact in shaping the American judiciary was already firmly established. As McCloskey notes: “The old jurisprudence had not been broken down . . . or even very greatly altered. . . . The nation was not constitutionally fragmented, judicial power was not surrendered. In fact, the position of the Supreme Court as the final arbiter of constitutional questions had become . . . more secure than ever before. The concept of judicial sovereignty, which Marshall had . . . defended against so many challenges, was by 1840 an almost unquestioned premise of American government.”[38]
President Andrew Jackson, who had strongly disagreed with some of the Marshall Court’s rulings and showed outright defiance of at least two court holdings (McCulloch v. Maryland with his bank veto in 1832, and Worcester v. Georgia), was nonetheless highly laudatory in his remarks to the nation upon Marshall’s death in 1835. Jackson’s words were, like those of many of Marshall’s staunchest adversaries, full of reverence for the man who had helped shape the nation through his jurisprudence:
Having set a high value upon the learning, talents, and patriotism of Judge Marshall, and upon the good he has done his country, in one of the most exalted and responsible offices, I have been gratified at seeing that sentiments equally favorable have been cherished by his fellow citizens, and that there has been no disposition, even with those who dissent from some of his expositions of our constitutional law (of whom it is perhaps proper that I should say I am one), to withhold from his memory the highest tribute of respect. In the revolutionary struggles for our national independence and particularly in the subsequent discussions which established the forms and settled the practice of our system of Government, the opinions of John Marshall were expressed with the energy and clearness which were peculiar to his strong mind, and gave him a rank amongst the greatest men of his age which he fully sustained on the bench of the Supreme Court.[39]
In the current era of intense partisan division and seemingly intractable legal and policy differences, the example of John Marshall is more pertinent than ever before. For it is clear that early partisan conflict between the Federalist and Jeffersonian Republican party was [40]as deep as the present polarization of partisan politics. Marshall somehow rose above it all to set the Supreme Court on a trajectory toward ever-growing prestige and acceptance. More than any other person, Charles Hobson observes, John Marshall “was responsible for implanting the perception of the Supreme Court as an impartial umpire standing above the partisan fray, a repository of wisdom and virtue, where reason, reflection, and disinterested judgment hold sway. This perception, the product of an eighteenth-century sensibility, has essentially survived into the twenty-first century and remains Marshall’s greatest legacy.”[41]
*This essay is excerpted in part from Phillip Henderson’s chapter, “John Marshall as Judicial Statesman,” in Joseph Fornieri, et al, editors, The Renewal of American Statesmanship, University of Notre Dame Press, 2021.
[1] Charles F. Hobson, “Defining the Office: John Marshall as Chief Justice,” University of Pennsylvania Law Review 154 (2005–2006), 1423.
[2] Robert K. Faulkner, The Jurisprudence of John Marshall (Princeton, NJ: Princeton University Press, 1968), 5.
[3] Faulkner, Jurisprudence of John Marshall, 5.
[4] Quoted in Jonathan Turley, “The Nine Greatest Supreme Court Justices,” HistoryNet.com., July 2009, http://www.historynet.com/the-9-greatest-supreme-court-justices.htm.
[5] Quoted in Turley, “Nine Greatest Supreme Court Justices.”
[6] Albert P. Blaustein and Roy M. Mersky, “Rating Supreme Court Justices,” American Bar Association Journal 58 (November 1972), 1183–89.
[7] Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt, 1996), 33.
[8] Smith, John Marshall, 76-80.
[9] Smith, John Marshall, 52.
[10] Smith, John Marshall, 52.
[11] Smith, John Marshall, 63.
[12] Smith, John Marshall, 64.
[13] Smith, John Marshall, 64.
[14] Archibald Cox, The Court and the Constitution (Boston: Houghton Mifflin, 1987), 48.
[15] Quoted in Smith, John Marshall, 69.
[16] McCulloch v. Maryland 4 Wheaton (17 U.S.) 316 (1819).
[17] Hobson, “Defining the Office,” 1434.
[18] Hobson, “Defining the Office,” 1424.
[19] Hobson, “Defining the Office,” 1424.
[20] Hobson, “Defining the Office,” 1424.
[21] Hobson, “Defining the Office,” 1423.
[22] Hobson, “Defining the Office,” 1426.
[23] Quoted in Herbert A. Johnson, The Chief Justiceship of John Marshall, 1801–1835 (Columbia, SC: University of South Carolina Press, 1997), 16–17.
[24] Story, quoted in Smith, John Marshall, 4.
[25] Quoted in Smith, John Marshall, 291.
[26] Quoted in Smith, John Marshall, 291.
[27] Story, as quoted in Faulkner, Jurisprudence of John Marshall, xviii.
[28] Smith, John Marshall, 329.
[29] G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges (New York: Oxford University Press, 1978), 12.
[30] White, American Judicial Tradition, 13.
[31] Smith, John Marshall, 292–93.
[32] Smith, John Marshall, 293.
[33] Hobson, “Defining the Office,” 1443.
[34] Hobson, “Defining the Office,” 1443.
[35] Hobson, “Defining the Office,” 1440–41.
[36] Hobson, “Defining the Office,” 1440–41.
[37] Hobson, “Defining the Office,” 1433.
[38] Robert McCloskey, The American Supreme Court, 2nd ed. (Chicago: University of Chicago Press, 1994), 109.
[39] Quoted in Smith, John Marshall, 524.
[41] Hobson, “Defining the Office,” 1460–61.
Associate Professor in the Department of Politics at the Catholic University of America.
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