The Great Chief Justice


Thus an entertaining poser arises as to what John Marshall’s political views and his legal leanings would have been had he lived and served on the Court in the middle of the Twentieth Century instead of at the beginning of the Nineteenth. For in Marshall’s day the states were still the chief citadels of a “liberal” or “leveling” political philosophy, controlled by and responsive to the mass of the people, whereas the central government, even under Jefferson and his followers, was more respectful of property rights. In recent times the situation has been the precise reverse, so that solid citizens are now states’-righters and liberals put greater faith in the federal government, even under conservative auspices. Where, then, would Marshall stand, faced with a New Deal, a Fair Deal, or even a New Look, and unable to champion simultaneously a strong central authority and the interests of the creditor class? Would he love national power more or leveling laws less? The probable answer must stem from the ineluctable fact that Marshall, like the Founding Fathers, was an eminently practical man, far more concerned with down-to-earth political realities than with the abstractions of government theory, more bent on achieving results than expounding principles. So, paradoxical as it may sound, there is little doubt that John Marshall, for all the tremendous part he played in giving the federal government strength and supremacy back in the early Nineteenth Century, would be a states’ rights advocate today. Except—and quite an exception—in one regard:

Just as Marshall, for practical reasons, wanted the federal government dominant over the states and worked successfully to make it so, he also wanted one branch of that government dominant over the other two branches—and for identical practical reasons. Nor would Marshall, if he were living now, have any cause to regret what is generally rated his greatest, and was surely his most complete and spectacular, political achievement. In establishing unshakably the supremacy of the judiciary over both the legislature and the executive—and this in the face of a series of Congresses and Presidents who were either explosively or seethingly hostile—Marshall built a bastion for the rights of property, no matter how careless of those rights the rest of the federal government might come to be, that has stood secure and firm through all the intervening years and that a contemporary Marshall would still approve, with pardonable pride. For it was under Marshall that the Supreme Court, officially and as a whole Court, first proclaimed and exercised the right of judicial review in its ultimate and most radical sense—by holding a part of an act of Congress unconstitutional. And from that most famous of all the famous Marshall decisions, in the case of Marbury v. Madison—a decision that drew the battle lines between the new Chief Justice and his bitter antagonist, President Jefferson—until, toward the close of his career, Marshall made the ruling that brought forth President Andrew Jackson’s perhaps apocryphal but essentially accurate snort: “Well, John Marshall has made his decision; now let him enforce it” (and the decision was reluctantly obeyed nonetheless), Marshall forced on his foes and flaunted to the nation the doctrine of judicial supremacy.

The likely key to Marshall’s unyielding economic conservatism, and perhaps to his dynamic drive as well, is the fact that, in the common phrase, he was a self-made man who came up the hard way. Like so many who fight their way to the top against original odds, he had scant sympathy for those less able or less fortunate or less determined whom he left behind and beneath; successful, respected, well-to-do by dint of his own efforts, he identified himself completely with the class to which he had climbed. His was a primitive, frontier childhood; his was the meagerest of formal educations, later supplemented by a couple of months of law lectures at William and Mary; his was the suffering through the awful winter at Valley Forge as a soldier in the Revolution. By persistence and native brilliance, he rose in both law and politics, hewing straighter and straighter, the farther he rose, to the Federalist line. As a young Virginia assemblyman and as a middle-aged U.S. congressman, he developed an impatient mistrust of legislatures, with their inefficiencies and their bending to the winds of popular will. As one of the trio of envoys to France who were offered French bribes, in the so-called XYZ Affair, he developed a contempt for revolutionary democracy, which had there run riot. Outstanding among the few whole-hog congressional supporters of President Adams’ save-the-Federalist-Party policies, he was named secretary of state (he had earlier turned down a Supreme Court associate justiceship) until Ellsworth’s timely resignation gave Adams the chance to choose as Chief Justice the man who was to prove the doughtiest Federalist of them all.