The Great Chief Justice

PrintPrintEmailEmailBy every sensible standard, John Marshall deserves superbly his sobriquet of “the great Chief Justice.” He deserves it, that is, by every standard save only the mincing and squeamish view of a “proper” judicial attitude that prevails in these milk-toast times. For, almost all that the man believed and lived and brought to life would be sheer anathema to those who honor his name in happy ignorance as they damn any current Justice who dares to do his current job with the same contempt for legalism, the same concern for the end product, the same conception of the Court as a stark political instrument, that marked the work of Marshall. Marshall was great because he saw the law as a servant, not as a master, of the functions and goals of government—and because he used the Court as a means to achieve the goals he was after, however he had to bend or twist the law to achieve them. Scorning past legal precedents to fabricate his own, turning tiny technical points into ringing and far-reaching political principles, making a mockery of the nice-Nelly notion of “judicial self-restraint” that contemporary scholars hold in such high esteem, he ran his Court with a realistic gusto as refreshing in retrospect as it would be deemed improper, even indecent, today. If ever a figure in U.S. history embodied in his career clear proof that ours is a government of men, not of laws, that figure is John Marshall, the great Chief Justice.

To say that a man was great is not to say that he was always wise, for greatness does not per force imply wisdom. There are many who still question the wisdom of much that Franklin Roosevelt did; there are few who would deny him a place among the great Presidents. The point is that Roosevelt used the powers of his high office to the full and, in doing so, greatly affected—for good or ill—the course of the nation. So did John Marshall. Looking at Marshall’s greatness from another angle, there are many who would rate Holmes above him as the wisest Justice who ever sat on the Court. But Holmes was wise almost exclusively in dissent, where present ineffectiveness coupled with indignation often makes comparatively easy the eloquent expression of wisdom; by contrast, Marshall spoke almost exclusively with the authority of the Court behind him, so that his words were not merely something he said but official statements of what he and his Court—whether wisely or unwisely—effectively did.

What Marshall did, and well-nigh singlehanded—for the force and warmth of his personality swung even his political adversaries on the Court to his side—was to mold the government of a new nation to his own ideas of how that nation ought to be run. More than any other man, more than Washington or Jefferson or Lincoln, he put flesh on the skeletal structure, the bare bones of the Founding Fathers’ Constitution—and put it there to stay. Most of what he did to steer for his own times and chart for the future the main course of the country’s development, economically, socially, politically, is with us yet, 150 years later, courtesy of the precedents he set and the respect in which they are still held, and in this fact lies the real mark and monument of Marshall’s greatness.

Marshall thought the nation ought to be run by a strong central government to which the states played strictly second fiddle. So the bulk of his most momentous decisions either enlarged the powers of the federal government—over finance, commerce, business affairs—by what is commonly called a “broad construction” of those words of the Constitution that list what the federal government may do, or else restricted and cut down, by a narrow interpretation of other constitutional language, the similar and sometimes conflicting powers of the states.

Marshall not only thought the nation should be run by a strong central government; he also thought the nation and its government should be run by and for his kind, his political and economic class—meaning, of course, the creditor-capitalists, the Federalists, the financial conservatives. And so, although most of his significant decisions can be read—and usually are—as sparked primarily by a disinterested preference for federal, as against state, control of national affairs, not one of those significant decisions fails to fit the pattern of protecting and fostering the long-range or short-run security of private property. From the wholesale endowing of corporations with the property rights of individuals to the repeated upholding of land claims or money claims clearly based, originally, on bribery or flagrant fraud, Marshall served not only honest investors but less scrupulous speculators well.