Chief Justice John Marshall (1755-1835) – Guest Essayist: William Morrisey
“The Great Chief Justice,” John Marshall (1755-1835)
The longest-serving Chief Justice in our history, author of every major Supreme Court ruling in the first third of the nineteenth century—including the one establishing the principle of judicial review—John Marshall earned undisputed honor as “the Great Chief Justice.” He deserves honor also as a great man.
Someone—it may have been his fellow Virginian, John Randolph—called Marshall “that great master of the human heart.” That is an unusual thing to say about a Supreme Court justice, but one of the best things that could be said about any judge. Properly to judge requires mastery of the human heart in two senses. The judge must understand the human being standing before him, the many kinds of human beings there are. He must know human nature in its rich variety. And, in order to do justice, the judge must master his own heart, rise above personal interest and passion in order to apply the law to the case. He must know himself, governing himself according to that knowledge. When, at the age of seventy-one, Marshall read Jane Austen’s novels, he saluted that other great master of the human heart, his contemporary: “Her flights are not lofty, she does not soar on eagle’s wings, but she is pleasing, interesting, equable, and yet amusing.” Equable: Miss Austen has received no more accurate assessment from anyone more worthy to bestow it—a tribute from one great Chief Justice to another.
As a young man and then as a historian in his mature years, Marshall always had before him an example of self-government who did soar on eagle’s wings, a man not only great but conspicuously great: George Washington. His friend and Supreme Court colleague Joseph Story called him a “federalist of the Washington School.” So he had been, before and after the short life of the Federalist Party, first as a young soldier in Washington’s army at Valley Forge and the Battle of Monmouth, then as a rising Virginia politician in the 1790s, as an ambassador to France during the Adams administration, and finally, while a Supreme Court justice at the height of his powers, years after Washington’s death, author of a history of the Revolutionary War seen through the prism of Washington’s life and character. By contrast, the traitor Benedict Arnold, far from the master of his own heart, was in Marshall’s words “the slave of his rage,” a man of character on the battlefield who lacked the self-knowledge to see that he had no ability to engage in successful financial speculation. This “false pride,” this lack of just self-assessment, led Arnold into the indebtedness which made him vulnerable to the blandishments of the enemy. Washington, “the example of virtuous moderation,” displayed an “unyielding firmness of mind,” a “perfect self-possession under the most desperate circumstances,” which “struggled against adverse fortune” and won independence for his country.
In Marshall’s estimation, these moral qualities made Washington a great ‘judge’ in his own way: “In his civil administration, as in his military career, ample and repeated proofs were exhibited of that practical good sense, that sound judgment, which is perhaps the most rare, and is certainly the most valuable quality of the human mind. Taught to distrust first impressions, he sought to acquire all the information which was attainable, and to hear, without prejudice, all the reasons which could be urged for or against a particular measure. His own judgment was suspended until it became necessary to determine; and his decisions, thus maturely made, were seldom if ever beshaken.” This is not only a portrait of Washington, but a self-portrait: if in Washington we see self-government in America’s founding executive—military commander and president—in Marshall we see it in America’s found judge—guardian of the rule of the Supreme Law of the Land. Both men acted in defense of self-government in the form of the American constitutional union.
Marshall called Washington “a real republican,” devoted to the United States Constitution “and to that system of equal political rights upon which it is founded.” “But between a balanced republic and a democracy, the difference is like that between order and chaos.” Democracy breeds demagogues, men who overturn the laws and disperse governmental energy in factional wrangling. Republicanism breeds patriots, men who “preserv[e] the authority of the laws and maintain the energy of the government.” The language echoes The Federalist #10, in which Publius contrasts democracy—“a society consisting of a small number of citizens, who assemble and administer the government in person”—with a republican or representative government—whereby more citizens and territory may be accommodated, rendering factional passions less powerful and thus giving rational, disinterested government the chance to take effect.
Marshall scarcely fit the standard image of the wealthy American federalist. As his biographer Albert J. Beveridge explains, Virginians from the rich, tidewater section were ruled by landed oligarchs. The upland counties—poorer, more rural, the citizens quite unfashionable in dress and deportment—sought but often did not receive funding for “roads, bridges, and other indispensable requisites of social and industrial life.” The Marshalls came from that region, and Marshall’s lifelong carelessness of attire and awkwardness of carriage fit the type. In his personal style, Marshall resembled a democrat even as the rather more democratic Thomas Jefferson more resembled an aristocrat. But federalist republican he was, citing the state governments framed after the Declaration of Independence as “exhibiting the novel spectacle of matured and enlightened societies, uninfluenced by external or internal force, devising, according to their own judgments, political systems for their own government.” Only Connecticut and Rhode Island, “whose systems had ever been in a high degree democratic,” failed to adopt written constitutions that “prescribe[ed] bounds not to be transcended by the legislature itself.” Legislative dominance comported with democratic leanings in America before 1787; popular government that was republican set limits on passionate majorities by separating and balancing governmental powers. Such limits spared Americans the horrors seen in France, only a few years after the Constitution of Washington and Madison was ratified.
As a Virginia state legislator in the 1780s, working under the Articles of Confederation system, Marshall saw firsthand the causes of American disunity, which had been nearly fatal during the war. Not only jealousy and state pride but reluctance to pay war debts and partisan administration of justice embittered Virginians.
“[T]he general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government.”
This was especially true in organizing the defense of the young country. National defense “requires a superintending power, in order to call forth the resources of all to protect all. If this be not done, each State will fall a sacrifice.” The first duty of self-government is self-defense. It is also the prerequisite of continued self-government. And constitutional union is indispensable for American self-defense.
Throughout his career Marshall unwavering sought to strengthen Americans’ consent for constitutional union. Like James Madison, he had listened with alarm as the great anti-federalist orator Patrick Henry decried the first phrase of the Constitution: “We the People.” “The question turns,” Henry said, on that poor little thing—the expression, ‘We the people, instead of the states.” That phrase constituted “a revolution as radical as that which separated us from Great Britain,” because it transferred sovereignty from the states to the American people as a whole, thus giving the federal government authority over state governments in certain enumerate matters. But only under the state governments, Henry insisted, could Americans secure such “human rights and privileges” as the rights of conscience, trial by jury, and liberty of the press.
The young Marshall was ready with his counter-argument. He denied any parallel between the relationship of the colonial American governments to the British imperial government and that of the state governments to the federal governments under the new constitution. The colonists’ arguments had turned on the slogan of self-government, “No taxation without representation.” Marshall observed, “We were not represented in Parliament. Here we are represented” in the federal government. What is more, the federal government must really govern, which means it will need to have revenue sources independent of the states, as legislated by representatives elected by the people or (in the case of senators under the original Constitution) by the state legislatures. Representation guarantees the ‘self’ in self-government. Necessity, including national defense, helps to define the means of government, the kinds of taxes imposed. It helps to define the ‘government’ side of self-government. Here Marshall anticipated his argument in the McCulloch v. Maryland opinion, some thirty years later, in which he held that in both ratifying the constitutions of the states and the Constitution of the United States, the people and not the governments were sovereign, under the Laws of Nature and of Nature’s God.
In this debate, and throughout his public life, Marshall exhibited the courage of self-command he had seen in his great mentor.
“I had reason to know that a politician even in times of violent party spirit maintains his respectability by showing his strength; and is most safe when he encounters prejudice most fearlessly.”
In private life, he commanded himself no less. After what must have been an excruciating surgery in old age, Marshall was sitting up in bed writing to his wife the next day. His physician recalled:
“I consider it but an act of justice, due to the memory of that great and good man, to state that in my opinion, his recovery was in great degree owing to his extraordinary self-possession and to the calm and philosophical views which he took of his case, and the various circumstances attending it.”
On his deathbed, in the words of another physician, Marshall “met his fate with the fortitude of a Philosopher, and the resignation of a Christian.”
In his last years, Marshall feared for the American union, and its constitution. How long can the union be “prolonged,” he wondered, by such “miracles” as those effected by Henry Clay in the Compromise of 1820 and by Andrew Jackson in facing down the nullification crisis of the 1830s? But he saw reason for some hope in the character of those still devoted to republican self-government, not only in America but in the world at large. In 1824 Marshall attended a dinner honoring his old companion in arms under General Washington, the Marquis de Lafayette, now in his mid-sixties. Marshall offered a toast: “To rational liberty—the cause of mankind. Its friends cannot despair when they behold its champions.”
Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.