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John Marshall Saves the Republic

December 2020

Our greatest Chief Justice defined the Constitution and ensured that the rule of law prevailed at a time of Presidential overreach and bitter political factionalism.

John Marshall by Henry Inman, 1832
Henry Inman painted Chief Justice John Marshall in 1832.

Clouds of doom shrouded the nation in 1800. George Washington was dead. 

For the first time in their twenty-five-year struggle to govern themselves, Americans faced a future without the father of their country to lead them. And they lost their way. 

Absent their commander-in-chief, the men who had helped him lead the nation to independence went mad. Chaos engulfed the land as surviving Founding Fathers Adams, Burr, Hamilton, Jefferson, Monroe, and others turned on each other as they clawed at Washington’s fallen mantle. 

In a drama not unlike a classical Greek or Shakespearean tragedy, arrogance and lust for power gripped the souls of national heroes, perverting their patriotism, spurring them to spring on each other, fangs bared, spitting venom. Defying the Declaration of Independence and Constitution they had written and sworn to uphold, they ignored the commandments their religions demanded they obey. Madness swept them into its arms, with congressmen wrestling each other to the floor of the House, pummeling each other. Former battlefield comrades and close friends challenged each other to deadly duels, and high government officials plotted to disgrace, imprison, or murder those they perceived as political foes.

Presidents were not immune from the madness. John Adams and Thomas Jefferson, both signers of the Declaration of Independence, blatantly violated their oaths of office, stripping the Bill of Rights from the Constitution and, in Jefferson’s case, urging states to consider secession. The madness affected heroes as well. Virginia Senator James Monroe, a hero at the Battle of Trenton, plotted to disgrace Treasury Secretary Alexander Hamilton, who had helped save Monroe’s life at Trenton. Hamilton, in turn, plotted to disgrace Aaron Burr Jr., who had also fought at Trenton and rode with both Monroe and Hamilton at Monmouth Courthouse. In the postwar struggle for power, Hamilton’s scheming unseated President Adams in the 1800 presidential election and provoked the most dangerous constitutional conflict in early American history. Later, Hamilton’s insane feuding with Burr — by then vice president of the United States — ended in a disastrous duel that sent him to his grave and Burr to exile in Europe. 

As scandal and ignominy tarred his former wartime comrades, one man stood apart from the chaos engulfing the government as heroic in peace as he had been in war. Like Burr, Hamilton, and Monroe, John Marshall had charged into enemy lines in New York, Trenton, and Monmouth and shared their suffering through the bitter winter at Valley Forge. Content to practice law at home in Richmond, Virginia, after the war he won national acclaim as a delegate in 1788 to Virginia’s ratification convention.

Marshall’s passionate rebuttal to Patrick Henry had helped win the critical vote for ratification of the proposed Federal Constitution in Virginia.

In one of the most dramatic debates in American history, Marshall challenged America’s legendary patriot Patrick Henry and argued for ratification of the Constitution — a document designed to quell America’s political chaos with a new and powerful central government. Virginia sided with Marshall and, rejecting Henry’s objections, ratified the Constitution and sent Marshall’s star soaring in the political firmament as a fearless attorney, state legislator, and congressman. 

In 1793, however, the French Revolution sparked another outbreak of political madness in the United States. After France declared war on Britain, fighting between the two nations spilled into the Atlantic Ocean, with French and British warships attacking American vessels to prevent them from carrying cargoes to enemy ports. Together the French and English seized hundreds of millions of dollars worth of ships and cargoes and impressed or imprisoned thousands of innocent American crewmen and helpless passengers. 

President Washington and his successor, John Adams, tried steering the United States into neutral waters, but the French and British ship seizures further enraged and divided Americans. Alexander Hamilton demanded that Adams declare war on France to protect America’s vital trade with England, while Hamilton’s bitter foe Thomas Jefferson called for war against Britain on the side of America’s Revolutionary War ally, France. 

As street rioting convulsed the nation, President Adams chose a middle course, urging Congress to strengthen American defenses while he sent a commission that included John Marshall to France to talk peace. Hamilton then turned on Adams, calling him a coward “unfit to govern” and presenting an alternative candidate in the presidential elections of 1800. To crush growing dissent, the President fired cabinet members who sided with Hamilton and rammed the infamous Alien and Sedition Acts through Congress, effectively suspending the Bill of Rights and criminalizing oral and printed criticism of the President and his government. 

Burning with ambition to replace Adams as President, Vice President Jefferson urged state legislatures in Kentucky and Virginia to undermine congressional powers by nullifying the new federal laws in effect, calling for secession. As a Hamilton puppet candidate siphoned votes from President Adams in the presidential election of 1800, Jefferson and Aaron Burr Jr. garnered the most votes, and Jeffersonians now calling themselves “Republicans” gained control of both houses of Congress. 

In more than three decades as Chief Justice, Marshall’s pronouncements ensured the integrity and eminence of the Constitution and the federal government

Left with only a few weeks in office and Jefferson pledging to dismantle much of the federal structure, President Adams reinforced as much of the national government as he could, “packing” the federal judiciary with “federalist” judges pledged to preserving the powers of the central government. He then stunned the nation by appointing a champion of federalism, Secretary of State John Marshall, as Chief Justice of the Supreme Court. 

In the more than three decades that would follow his appointment, Marshall’s pronouncements would ensure the integrity and eminence of the Constitution and the federal government and catapult him into the pantheon of American Founding Fathers as father of the American federal justice system.

“He hit the Constitution much as the Lord hit the chaos, at a time when everything needed creating,” constitutional scholar John Paul Frank attested. “Only a first-class creative genius could have risen so magnificently to the opportunity of the hour.”

But his years in the office did not begin auspiciously. Only the Senate wing of the Capitol building had been completed when Marshall took his oath — the House and Senate took turns using the Senate chamber, stuffing congressional offices and the Library of Congress into any remaining spaces while awaiting completion of the other wing and the connecting midsection of the Capitol. Congress relegated the Supreme Court to “a half-finished committee room meanly furnished and very inconvenient” on the Capitol ground floor. The Court had no space for its own library or offices, no clerks or secretaries — not even a bench. Justices sat at individual desks, along with the Reporter of Decisions, and they had to share their meager space with district and circuit courts.
 
Marshall surprised his colleagues on the Court when he arrived to take his oath in an austere black robe — in stark contrast to the ermine-fringed robes, scarlet silks and rich purple velvets that other justices wore, in the traditional dress of London’s King’s Bench. Their dress was understandable, of course: the oldest members had been raised as British subjects. 

Eager to establish warm relationships with his new colleagues, Marshall invited them to dine, and before they had finished their first meal together, his winning ways had conquered them all. As they sipped their last glasses of Madeira before adjourning, he reminded his colleagues of the resentment many Americans harbored against England. He convinced them to do away with opulent English-style judicial wear in favor of black robes like his, as symbols that they carried no colors in making judicial decisions.

In the course of his Supreme Court leadership over the next three decades, Marshall stood at the center of the most riveting — and important — courtroom dramas in the nation’s formative years. In case by case he defined, asserted, and, when necessary, invented the authority he and the Court needed to render justice, stabilize the federal government, and preserve the Union and its Constitution.

Some Marshall decisions provoked presidential anger, others infuriated Congress, and still others outraged governors and state governments, with some states threatening secession. In effect, Marshall’s court — its members unelected and unaccountable to “We the People” — rewrote both the Constitution and the laws written by the nation’s elected representatives in Congress.
 
During Marshall’s tenure his decisions provoked many citizen protests — even rioting — and twenty-five years after his death those debates plunged the nation into civil war. But the judicial edifice he built — and the Constitution he defended — survived. The US Supreme Court—Marshall’s “Marble Palace” — stands today as the third separate and equal branch of government alongside the executive and legislative branches. 

Together with the US Code of Laws and the Constitution, the Marshall Court’s decisions form the foundation of the American legal system, ensuring “justice . . . and the blessings of liberty to ourselves and our posterity.”

Although the Court did not and could not initiate domestic cases, Marshall’s Supreme Court grew far more powerful than the appellate court described in the Constitution. To make the Constitution work “to form a more perfect union, establish justice, insure domestic tranquility ... and secure the blessing of liberty to ourselves and our posterity” Marshall’s Supreme Court put restraints on Presidents and governors, Congress and state assemblies, and federal and state courts.

Marshall’s Court assumed so many powers so quickly, however, that southern states opposed to union and reluctant to cede state sovereignty rose in protest. First, South Carolina, then Georgia called out its state militia in 1832 to confront federal troops and prepared for civil war thirty years ahead of history’s schedule. Indeed, Marshall himself feared “that our Constitution cannot last.”

Thus, Marshall conceded that the Court’s decisions had indeed changed the Constitution and altered the shape of the government that the Founders — from North and South — had created. John Marshall’s Supreme Court ruled America’s legal landscape for thirty-five years and made him the longest-serving Chief Justice in US history. Of the court’s hundreds of decisions, nine may have been the most far-reaching, in that they formed a new foundation for US constitutional law. Historians and jurists may debate which were the most important, but each was most important in certain ways — as are so many cases the Supreme Court decided then and since. 

Three cases (Marbury v. Madison, United States v. Peters, and Worcester v. Georgia) established the Supreme Court as the nation’s supreme arbiter, asserting the Court’s right to review and void every law, court decision, and executive act in the land — federal, state, or local. As Chief Justice Earl Warren would put it in 1958, “The federal judiciary is supreme in the exposition of the law of the Constitution.” 

Three more cases (McCulloch v. Maryland, Martin v. Hunter’s Lessee, and Gibbons v. Ogden) stripped states of sovereignty beyond their borders and affirmed federal government sovereignty in national and international affairs, and extended the federal government’s designated powers in the Constitution to include so-called implied powers.

And three other cases (Fletcher v. Peck, Dartmouth College v. Woodward, and Cohens v. Virginia) ensured individual citizens (and private institutions) the “inalienable rights” promised by the Declaration of Independence and Bill of Rights. John Marshall and the Court defined them as life, liberty, and property rather than pursuit of happiness. The three cases reasserted the inviolability of contracts and protected citizens and corporations against arbitrary confiscation. of their property by government. 

Dartmouth College v. Woodward followed the seizure in 1816 of Dartmouth College by New Hampshire’s state legislature, which took control of the private school and converted it into a public, state-run institution. After a state court upheld the takeover, Daniel Webster, the eloquent New Hampshire attorney and Dartmouth alumnus, appealed to John Marshall’s Supreme Court with one of the most moving summations in Court history: 

“This, Sir,” Webster pleaded to the Chief Justice, “is the case not merely of that humble institution; it is the case of every college in our Land!”

“It is the case of … all those great charities founded by the piety of our ancestors to alleviate human misery … It is, in some sense, the case of every man among us who has property of which he may be stripped. For the question is simply this: ‘Shall our State Legislatures be allowed to take that which is not their own, to turn it from its original use, and apply it to such ends and purposes as they in their discretion shall see fit!’” 

“Sir,” the future senator all but sobbed, “you may destroy this little institution. It is weak. It is, Sir, as I have said, a small college …”

Webster choked on his words. “… and yet, there are those who love it.” 

Far from destroying Webster’s “little institution,” Marshall scolded state authorities, calling the New Hampshire law and state court ruling that turned Dartmouth into a state institution “repugnant to the Constitution of the United States.” 

In a decision to ensure constitutional protection of individual and institutional property rights in America, Marshall declared the original state-issued charter that created the college a contract protected by Section 10, Article I of the Constitution, which prohibits states from passing “any law impairing the obligation of contracts.” He declared the constitutional prohibition applicable to all contracts — including state charters that created charitable and benevolent corporations as well as private business corporations. 

“The judgment of the state court,” he stated, “must therefore be reversed. “

Only two weeks after Dartmouth the Marshall Court handed down another monumental decision in McCulloch v. Maryland, repudiating all state sovereignty over federal activities and proclaiming the federal government the ultimate sovereign in the United States. The decision would eventually provoke not only civil war, but a host of bitter confrontations between state and federal authorities in the intervening decades. 

McCulloch v. Maryland began in 1818 when Maryland imposed a tax on all banks in the state, including the federally chartered Bank of the United States. James McCulloch, the manager of the Baltimore branch of the federal bank, refused to pay, arguing that the state had no right to tax the federal government. A county court disagreed and convicted him of violating state tax law. After the state court of appeals upheld his conviction, McCulloch appealed to the US Supreme Court, where batteries of famous lawyers fired their legal arrows at each other. Among them were US Attorney General William Wirt and the demosthenic Daniel Webster, fresh off his triumph in the Dartmouth case. 

Maryland lawyers called the Bank of the United States illegal, saying the Constitution did not give the federal government powers to charter a bank — which it did not. They argued, as Jefferson had, that the Constitution was “a compact between the states, and all the powers which are not expressly relinquished to it are reserved to the states .... The powers of the general government ... are delegated by the states, who [sic] alone are truly sovereign.

After Webster and Wirt finished their arguments for the federal government, Marshall savaged Maryland’s attorneys in a unanimous decision that assailed their claims of broad state sovereignty. In perhaps the famous and most important words of any Chief Justice in American history, Marshall conceded that Maryland’s attorneys had been correct in only one of their assertions — that the framers had indeed been elected by state legislatures and not the people of the United States. 

But he went on to give them a stern lesson in history, pointing out that the Constitution drafted by the framers was only a proposal. It did not become the law of the land until the people in each state elected conventions to vote it up or down. 

“The government of the Union,” said Marshall, “is emphatically and truly a government of the people. Its powers are granted by them and are to be exercised directly on them and for their benefit.”

“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. ... After the most deliberate consideration, it is the unanimous and decided opinion of this Court that the act to incorporate the Bank of the United States is a law made in pursuance of the Constitution and is part of the supreme law of the land.”

In effect Marshall reaffirmed Alexander Hamilton’s contention as Treasury secretary in George Washington’s first administration that the Constitution gave the federal government “implied powers” as well as specific ones. Hamilton argued that by granting Congress power “to make all laws which shall be necessary and proper for carrying into execution” its other obligations (Section 8, Article 1), the framers had extended federal authority beyond the letter of the Constitution.

Marshall agreed.

“If the measure ... is not forbidden by any particular provision of the Constitution,” Marshall declared, “it may safely be deemed to come within the compass of the national authority.” In effect Marshall stabilized the foundation and structure of the entire federal government, extending constitutional powers beyond the literal meanings of its words to include implied meanings.

The decision remains the center of acrimonious debate to this day, but the McCulloch decision represented a sea change.

In the more than three decades that followed his appointment, Marshall’s pronouncements ensured the integrity and eminence of the Constitution and the federal government. He would become the longest serving Chief Justice in US history, signing I,180 decisions and writing 549 of them, or nearly one-half, himself. 

Marshall and his fellow Supreme Court justices established the Constitution — and the Supreme Court’s interpretations of the Constitution — as “the supreme law of the land” and a bulwark against tyranny from within by ambitious American officials.
 
The British authority Lord Bryce insisted that Marshall’s “legal judgments ... have never been surpassed and rarely equaled by the most famous jurists of modern Europe or ancient Rome.”
 
As John Adams looked back on his own life of public service, he called his appointment of John Marshall as Chief Justice his greatest gift to the nation and “the pride of my life.”
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