The Great Chief Justice


Marshall’s confidence soon led him into another patently political battle with Jefferson in the trial of Aaron Burr for treason, over which trial Marshall presided in person. Burr, though a nominal Republican who had come close to wrangling the Presidency away from Jefferson when they were elected together in 1800 (the confusion of equal votes for President and Vice-President, with no preference stated, was cleared up afterward by the Twelfth Amendment to the Constitution), had of late been flirting with the Federalists, who were quite willing to make the most of his personal pique against Jefferson. When Burr was caught with an armed force, apparently preparing to start a revolt against the U.S. government with help from abroad, the Jefferson-hating Federalists tended to wink at this abortive undertaking and to side with Burr. Marshall sided with him in such a partisan way at his trial—tossing out evidence that might have convicted him, practically demanding his acquittal—that so conservative a senator as John Quincy Adams more than hinted, in a later Senate report on the case, that Marshall ought to be impeached.

Throughout these years, and especially after the Burr trial, all sorts of schemes were proposed in Congress with Administration backing to curb the power of the Justices—schemes ranging from an easy machinery for the removal of Justices without impeaching them to a limitation of their terms of office. None of these came to anything. But more than a decade after he left the White House, Jefferson—still smarting over his defeat at Marshall’s hands, outraged that most of the Justices he had appointed had gone over to the enemy, battling away for his lifetime conviction that a last-word judicial autocracy was improper and evil—was still taking pot shots at the Court in general and John Marshall in particular. “An opinion,” he wrote to a friend in 1820, “is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind, by the turn of his own reasoning.”

Though important decisions dotted the whole of Marshall’s Chief Justiceship, spreading across the Administrations of five U.S. Presidents, the three cases usually deemed the most momentous, after Marbury v . Madison, were bunched within a five-year span from 1819 to 1824. Each of the three threw out as unconstitutional an act of a state legislature. Each, either directly or by the broad grounds on which it was based, was a boon to commercial and financial interests, a shot in the arm to expanding U.S. capitalism. Each was essentially political; each still stands as good law today; and each in its own way has had a major effect on the nation’s development. The three cases are known as the Dartmouth College case, McCulloch v . Maryland, and Gibbons v . Ogden or, as it is sometimes called, the steamboat case.

Many who have heard the almost tearfully emotional peroration of Daniel Webster’s plea to the Court in the Dartmouth College case (“It is … a small college—and yet there are those who love it”) have no notion what the crying was all about nor what the subsequent shouting was all about after Webster’s pathos, far more than his legal arguments, won the decision for his client. Yet historian Charles Beard called the Dartmouth College decision “a spectacular event more important in American educational history than the founding of any single institution of higher learning”—including, presumably, Harvard and Yale. And the legal ripples of Marshall’s ruling, which rested in part on making an imaginary individual out of a corporation, spread far beyond the educational world.

Dartmouth, under a charter granted by King George III in the mid-Eighteenth Century, was run—as were and are so many colleges and universities—by a self-perpetuating board of trustees. Being self-perpetuating, the board was still heavily overweighted with rather old-fogy Federalists long after the nation, and the state of New Hampshire, had gone Republican. Sparked by an insurgent Republican group within the college, the New Hampshire legislature passed a law to pack the board with new, politically appointed members, and so turn Dartmouth into a sort of state university. It was to stymie this purely political move that the equally political old trustees hired the spellbinding Webster to take their case to the Supreme Court.

In order to sustain his academic fellow Federalists, John Marshall had to rule that a charter was the same as a contract (this was brand-new legal doctrine); that the promises made by the British Crown in granting the charter were still binding, despite the Revolution, on the state of New Hampshire (this was also new); and that therefore the New Hampshire statute was unconstitutional because it “impaired the obligation of contracts.” By such tortuous and unprecedented legal argumentation, with an assist from Webster’s sentimentality, Marshall managed to hold the fort for Dartmouth’s Federalist trustees. In doing so, he also set the stage for the permanent and practically unregulated control of U.S. higher education, especially in the East, by private “corporations”—and thus gave a tremendous boost both to academic conservatism on one side (only the wealthy can afford to endow colleges) and to academic freedom-from-direct-political-pressures on the other.