A review of John Marshall and the Heroic Age of the Supreme Court , by R. Kent Newmyer

Although honored by all as the Great Chief Justice, and by many as the last Founding Father, John Marshall has only recently begun to receive his due from biographers. For nearly a century following his death in 1835, the most important source of information about Marshall, other than his own writings, was the moving tribute penned by his longtime colleague, Joseph Story. Eighty years would pass before the first substantial biography appeared — The Life of John Marshall by Albert J. Beveridge (four vols., 1916-1920), which dwarfs in avoirdupois, if not enthusiasm, all other compositions on the subject.

Beveridge's Life is an appealing, spirited hagiography that sought to do for Marshall what Marshall did for George Washington. Marshall's The Life of George Washington, however, is that rare thing, a great book written by one great man about another great man. It is at once a riveting narrative of the Revolutionary War and Washington's genius as a military commander and political leader; a compelling appraisal of the Confederation's shortcomings, the necessity of Union, and Washington's indispensability to its formation; an account of Washington's presidential statesmanship; and, finally, a peerless assessment of his legacy and character. Taken all in all, it is a treatise on republican virtue and statesmanship, written by one who understood and possessed those traits, about another who embodied them as no one else.

Measured against this standard, Beveridge almost inevitably had to come up short. Marshall emerges from his pages as a man for all seasons, but mostly Beveridge's own: Marshall was great because he seems to have anticipated the very ideas and reforms Beveridge thought useful to 20th century America. In the end, for all its charm and insight, the work reveals more about its author and his era than it does about its subject. Even so, Beveridge cast a giant shadow, which explains in part why 80 more years would pass before another major biography was ventured, Jean Edward Smith's John Marshall: Definer of a Nation (1996). 

Legal commentary on Marshall and his Court abounds, which sifts and re-sifts the implications of the great cases, especially Marbury v. MadisonGibbons v. Ogden, and McCulloch v. Maryland. Significantly, the most thoughtful evaluations of Marshall have come from political scientists rather than lawyers. In a class by itself is Robert K. Faulkner'sThe Jurisprudence of John Marshall (1968), which evaluates Marshall's thought and deeds in the light shed by the grand tradition of classical political philosophy. It is a brilliant work, in every respect worthy of its subject.

We are now witnessing a new burst of scholarly interest in the great Chief Justice. In the past few years alone, in addition to the Smith biography, two new books have come forth on Marshall's opinions and his stewardship of the Supreme Court, and others are in the works. The definitive edition of the Marshall Papers proceeds apace (10 volumes and counting). And now we have legal historian R. Kent Newmyer's fine intellectual biography. At last, scholars are paying a debt long overdue.

Although Marshall's greatness is everywhere acknowledged, he is not always honored for the right reasons. In our own time, his authority is commonly invoked, especially by legal writers, to justify expansion of judicial power in ways that would have horrified Marshall, the original originalist. A typically modern argument will begin, of course, with Marbury, going on to cite diverse other Marshall dicta (e.g., "We must never forget that it is a Constitution we are expounding."), by way of prelude to a justification of the Supreme Court's exclusive franchise on constitutional interpretation. Throw in some loose talk about the Constitution as the repository of democratic "ideals" or "aspirations," and what you get is John Marshall reborn as William Brennan.

In the late 1960s, when the Warren Court was in full swing, one enthusiast at a Yale Law School conference proceeded along these lines, concluding that the combined effect of MarburyMcCulloch, and the 14th Amendment essentially conveyed a "blank check" to the Supreme Court. The late Alexander M. Bickel, who wrote about the Court with care, moderation, and eloquence, skewered the assertion with a simple but deftly chosen illustration. Let's see how this sounds, he responded, transposing the unfortunate phrase into Marshall's famous dictum: "We must never forget that it is a blank check we are expounding."

Few statements, and none so short, have so perfectly punctured the pretensions of judicial supremacy. Bickel, alas, is gone now, and the Blank Check theory of the Constitution lives on in what is called the "living Constitution." It is not clear whether proponents of this idea actually believe Marshall would subscribe to their theory, or whether they merely cite dicta that lend apparent support to their agenda. In any event, serious students of the subject know better. As Christopher Wolfe and Robert Lowry Clinton have demonstrated beyond cavil, neither Marbury nor any other arrow in Marshall's quiver can justly be deployed to support modern presumptions about judicial power.

The modern practice of judicial review has a different, and later, provenance, one very much at odds with Marshall's jurisprudence. The locus classicus is Dred Scott v. Sanford, which simultaneously rejected the natural rights foundation of the Constitution and introduced substantive due process as a standard of review. Although the holding of Dred Scott fell into immediate disrepute in virtue of Abraham Lincoln's critique and the verdict of the Civil War, its doctrines lived on, put to extraneous use by the post-Civil War Court. Despite ritual condemnations of judicial invalidation of legislative judgments on economic regulation, modern advocates of judicial power have reinvented substantive due process under numerous other guises. Their goals are to transform the Bill of Rights into a charter of autonomous individualism, and the Supreme Court into what Judge John T. Noonan once called "a floating constitutional convention" empowered to create "fundamental" rights. Modern constitutionalism is what you get when Roger Taney meets Lawrence Tribe and Ronald Dworkin.

Although mischievous interpretations of Marshall's opinions are not the particular object of his concern, it is clear on Professor Newmyer's showing that Marshall is no adept of the "living Constitution." The Constitution in Marshall's hands was certainly a capacious instrument whose provisions were meant to accommodate an infinite variety of changing circumstance. But it was hardly the protean document conjured by modern interpreters, who believe the Constitution ought to resonate to what Oliver Wendell Holmes, Jr. called "the felt necessities" of the times. Marshall's generous reading of constitutional language is properly celebrated, but his motives were far more complex than those ascribed to him by critics whose horizon is defined and limited by positive law. 

Marshall's opinions in the grand cases are not merely learned glosses on positive law (although they are that), but elegant lectures, intended for a broader audience, on the principles and practice of republican government. Those principles were made immanent in the Constitution, but their proper interpretation required a prior understanding of the Constitution's origins and justification. Newmyer's Marshall, firmly anchored in the natural rights legacy of John Locke, takes seriously the obligation of government to secure rights already inherent in man's nature. Marshall also believed that the Court bore a moral obligation to construe the Constitution in accordance with the intent of its framers. He read certain provisions broadly, and others narrowly, because he believed that is what the framers intended. 

Professor Newmyer is refreshingly free of cant and, like his subject, judicious and balanced in his assessments. He writes gracefully, often eloquently, taking pains to avoid the tendentious legal parsing that plagues the law reviews. His technical legal proficiency is nevertheless apparent on every page. He guides the reader like a skilled storyteller through often recondite disputes, making them come alive, clarifying the legal issues, and confirming at every turn Marshall's mastery of both fine detail and grand concept. He sets the stage by showing how Marshall's early experience—his close association with Washington during the War for Independence, his first-hand experience with the chaos of the Confederation, his familiarity with the deliberations at the Philadelphia Convention, his advocacy as a delegate to Virginia's ratifying convention, his diplomatic and administrative activities under John Adams—framed his thinking before he was named to the Court. 

From there, Newmyer goes on to correct, gently and persuasively, a major misimpression about Marshall's nationalism that persists in the literature. Enthusiasts of every stripe deploy Marshall to their own uses. Those with small affection for federalism invoke his dicta as brickbats against the states; those inclined toward state prerogatives cite many of the same dicta to suggest that the Chief Justice betrayed the constitutional settlement of 1787. On Newmyer's showing, Marshall's nationalism fits neither stereotype. It was balanced, subtle, and prudent, perfectly capturing Madison's sense that the Constitution was "neither wholly federal nor wholly national." 

On this point, Marshall saw before anyone else (and, it could be argued, better than Madison himself) the full implications of what was wrought at Philadelphia. And he took it upon himself to instruct the nation, where it was possible to do so in relevant cases, about America's uniquely constituted federal system. The modern court has said that the 10th Amendment is merely declaratory, but of course that raises the question: Declaratory of what? In Marshall's view, it certainly did not declare the states-rights' understanding of John C. Calhoun; but even the author of McCulloch would be shocked by the unqualified nationalism that is nowadays said to be justified by his opinion. 

Professor Newmyer also shows Marshall's assiduous labors to preserve the principles of 1776 and 1787—and how masterfully he wove those principles into his opinions for the Court on subject after subject. He wove them as well into the minds of his judicial colleagues, at least in the pre-Jackson era, and into the foundations of the early Supreme Court itself. When Marshall assumed the Chief Justiceship, the Supreme Court was, at best, an inchoate institution, a co-equal branch in theory but a poor relation in fact. It lacked power, esteem, or even much in the way of institutional definition. Two of his predecessors had resigned to pursue more rewarding activity, and vacancies were difficult to fill. Its docket was almost laughably sparse, consisting of perhaps half-a-dozen cases per year. By the time the Chief Justice died in 1835, the Court's docket was crowded with numerous cases of great import, its place in the constitutional firmament had been fixed, its reputation and influence fully secured. 

During those 34 years, Marshall wrote a majority of the court's opinions, including all those in the great cases. Until the last years of his tenure, virtually all were unanimous verdicts. His mastery of fine points of law was equaled by his mastery of constitutional principle, but both in turn were exceeded by his mastery of men. Persuading six other lawyers to agree on anything is a near-impossible task; persuading six colleagues on the Supreme Court to agree so often on so many issues of signal importance requires statesmanship of the highest order. That Marshall was able to accomplish that feat, year after year, despite changing membership on the Court and despite some of the bitterest partisan contention the nation has ever seen, testifies to his political and intellectual genius. 

We will never know, of course, what might have happened had Marshall not been at the helm of the Court. We do not know, but we can guess, and Newmyer's chapter, "Marshall, Jefferson, and the Rise of the Supreme Court," hints at some likely alternatives. In a masterpiece of concision, Newmyer brings together in 60-odd pages what others have taken whole books to delineate with less effect. Here you will find a legally precise and thoroughly balanced discussion of the Jefferson-Marshall wars. The drama of their several major legal encounters ranks with the most important and contentious in American history. Three times within the space of four years, these two giants went toe-to-toe: on the Marbury question; on the question of Justice Samuel Chase's impeachment; and on the definition of treason in the trial of Aaron Burr. This is law writ large, and had any of the questions been resolved other than as they were, the history of the United States might have turned out quite differently. 

Thomas Jefferson was armed with ferocious determination, the powers of the chief magistracy, and large majorities in both houses of Congress. Marshall's determination equaled Jefferson's, but his only weapons were a weak and still undefined Court and the power of his pen. The stories are too long and too complicated to repeat here, but suffice it to say that after the dust had settled, the score stood at Marshall 3, Jefferson 0. These extraordinary cases involved constitutional questions of the first magnitude, on which the relevant law was unclear, contradictory, or non-existent, and they were animated by personal rivalry and political passion. In the event, their happy resolution owes everything to the Chief Justice's extraordinary statesmanship, which succeeded in controlling events at every critical turn. If you knew about John Marshall only what you learned from any one of these cases, you would be convinced that he was a man of intellectual genius and noble character. Knowing of all three, and of his other dazzling accomplishments besides, you could conclude only that he was one of the greatest men ever to spring from our soil. We owe Professor Newmyer our gratitude for reminding us, once again, of that fact.