John Marshall | Book Review

The life of John Marshall (1755–1835) spans the first and formative decades of the United States. Born in colonial Virginia, Marshall fought for American independence under George Washington, whom he revered as the beau ideal of a true republican and memorialized in a biography. “For the rest of his life,” Richard Brookhiser writes, “John Marshall saw Washington as his commander and himself as one of his troops.” And so, when Washington personally urged Marshall to run for Congress in 1798, he didsuccessfully, representing Virginia’s 13thDistrict from 1799–1800.

Like Washington, Marshall was a Federalist. John Adams tapped him to be U.S. Secretary of State in 1800. After the momentous 1800 election, in which Adams and the Federalists lost both the White House and Congress to Thomas Jefferson and the Democratic-Republicans, Adams appointed Marshall chief justice of the U.S. Supreme Court the month before Jefferson’s inauguration. Marshall and Jefferson were cousins, and though both were patriots, they were indefatigable political foes. Marshall swore Jefferson into office, then used Supreme Court legal opinions to continue the Federalist battle against the Democrats for the next 34 years. When he died, Andrew Jackson was president. Roger Taney—author of the Dred v. Scott infamy—succeeded him as chief justice.

Richard Brookhiser surveys Marshall’s “public career and its effects” in his engaging new study. This is not a comprehensive biography of the great man. In many ways, it is the story of the most significant cases he tried:Marbury v. Madison, United States vs. Burr(in which Jonathan Edwards’ grandson and Alexander Hamilton’s killer stood trial for treason), Fletcher v. Peck, Trustees of Dartmouth College v. Woodward,McCullough v. Maryland, Cohens v. Virginia, Gibbons v. Ogden, the Antelopecase (touching on slavery), Ogdenv. Saunders(a bankruptcy case, this Ogden being the nephew of the previous Ogden—evidence of a litigious family, no doubt; also, the only case in which Marshall wrote a dissenting opinion), The Cherokee Nation v. Georgiaand Worcester v. Georgia(both cases dealing with Georgia’s abominable treatment of Native Americans), and Barron v. Baltimore, among others.

Though not well known today, outside the legal profession at least, these cases were flashpoints of controversy between a broadly Federalist vision of the American republic and a Democratic one. Was the United States a “union” or a “confederacy”? Where was the boundary between federal supremacy and states’ rights? Could Congress establish a Bank of the United States without explicit wording in the Constitution? More broadly, was the law a “debt against the living,” in which generations were obligated by the laws of previous generations? Or did “the land belong in usufruct to the living,” in which each generation passed laws as it saw fit? The words were Madison’s and Jefferson’s, respectively, but the sentiments were Marshall’s and Jefferson’s exactly.

Brookhiser is a political journalist, not a lawyer, so his descriptions of both the facts of these cases and their relevance are easy to follow and enlightening. In a summary chapter on Marshall’s legacy, he notes that Marshall brought “dignity” to the Supreme Court. How it tried cases and how it rendered opinions strengthened the hand of what Hamilton called “the least dangerous branch” of the federal government. If the membership and opinions of the Supreme Court loom large in the minds of Americans today, Marshall should receive credit.

But more than the dignity of the Supreme Court, Marshall’s legacy, was “defending the Constitution as the people’s supreme act.” Brookhiser explains: “The people had made a new government, giving it new powers, and binding it with new prohibitions…. Marshall devoted his decades as chief justice to explicating and upholding the people’s government against the attacks of men he deemed demagogues in Congress, in the states (including his own Virginia), and in the White House (including his own cousin).” That defense relied on the Constitution’s “words” and—sometimes or—“the historical context of its creation.” Marshall knew both intimately. He had worked for the document’s ratification. He had witnessed the struggles and trials that had brought it into being.

In the last months of his life, as his health deteriorated, Marshall feared for the future of the Constitution he had spent his life laboring to explain and defend. Marshall’s opinions “were substantially the policies of Washington and his most trusted aide, Alexander Hamilton”—slavery being the great exception. But by 1835, Jackson was in power, states’ rights were on the rise, and Roger B. Taney was in the wings. From then until the Civil War, an anti-Marshall view of the nature of the U.S. government and the meaning of its Constitution prevailed. It was as if the arguments between the cousins—Marshall and Jefferson—had never gone away.

Today, we live in a vastly different era. Both union and emancipation are taken for granted, which they were not in Marshall’s era, not even by Marshall himself. But the court Marshall once led continues to fascinate and repel, depending on who wins and who loses before the bench. To that extent, as William Faulkner put it so well, “The past is never dead. It’s not even past.” We all live in John Marshall’s shadow.

Book Reviewed
Richard Brookhiser, John Marshall: The Man Who Made the Supreme Court(New York: Basic Books, 2018).

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