Articles and Book Reviews by Fergus M. Bordewich
John Marshall, a Man ‘Without Precedent'
A lifelong Federalist, the Supreme Court chief justice served besides presidents who saw him as an enemy of their values.
[Book review] Without Precedent by Joel Richard Paul
Review By Fergus Bordewich in The Wall Street Journal, February 2018. [Draft Version]
NO MAN DID MORE to shape the judicial landscape of America than John Marshall, who led the Supreme Court for thirty-six years formative years, and hand-crafted scores of precedent-setting decisions that still affect us today. When he was appointed chief justice in 1801, the Court was the orphan branch of government, "a constitutional afterthought," with little authority, an annual calendar of cases that numbered in the single digits, and no dedicated meeting place, holding its sessions in spare committee rooms, and sometimes taverns and boarding houses. Marshall's predecessors regarded the job as a career-sapping waste of time. John Jay, for one, left to run for governor of New York, and Oliver Ellsworth simply quit attending.
In "Without Precedent," Mr. Paul a professor of constitutional law at the University of California's Hastings Law School in San Francisco, has crafted a highly readable, often entertaining account that persuasively embeds Marshall among the leading lights of the nation's founding generation: George Washington, Thomas Jefferson, James Madison, and Alexander Hamilton. In both ambition and heft, Mr. Paul's book will take a place alongside recent works by Ron Chernow and David McCullough, whose magisterial biographies both illuminate and humanize founding figures who for too long resembled marble busts lashed to white horses.
Marshall's modest origins hardly hinted at the illustrious career that was in store. Born in 1755, the future chief justice grew up on what was then the Virginia frontier, the eldest of fifteen children, who lived packed into a two-room log cabin, dressed in homespun garments, and lived on cornmeal mush. Marshall's father Thomas, though linked by blood to the plutocratic Randolph family and to Thomas Jefferson, worked for his living as a farmer and surveyor. In contrast to the tutored sons of Virginia's elite, young John was largely self-taught. He received only a single year of formal education, and much later six weeks of training in the law under the eminent legal teacher George Wythe.
As a rifleman during the Revolutionary War, Marshall endured the horrific winter at Valley Forge, where he came to know George Washington, who always had an eye for brilliant young men. Washington sensed Marshall's natural intellect and his talent for judicious compromise, and appointed him a military judge advocate, while only in his early twenties. Marshall's deep dismay at the incompetence of the country's feeble wartime government, Mr. Paul writes, "led him to conclude that the nation's survival depended on a strong federal government," one of the bedrock principles of his years on the Supreme Court.
After the war, Marshall established a successful law practice in Richmond and was elected to the Virginia legislature, where he soon became the leader of its Federalist minority. Recognized by his party as a statesman of national caliber, he was tapped to serve as one of three American envoys sent to Europe in 1797, in an effort to find a formula for peace during the so-called "Quasi-War" with former ally revolutionary France. The failed mission became known as the "XYZ Affair" when it was revealed that the French foreign minister had (fruitlessly) demanded a bribe in order to commence negotiating, which Marshall refused. The scandalous tale, which Mr. Paul unravels ably and colorfully, involved spies, secret meetings, veiled threats, and even a femme fatale, who may possibly have attempted to seduce Marshall, who nonetheless emerged from it all unscathed as a model of probity.
Marshall went on to win election to Congress, in 1798, and then briefly to serve as Secretary of State in the waning months of the Adams administration. Then, in one of his last and most significant acts as president, in January 1801, Adams appointed Marshall to the Supreme Court, thereby denying the infuriated incoming president, Republican Thomas Jefferson, to ability to name his own chief justice.
Service on the Court was not only an intellectual challenge, but also a physical ordeal. When the court was in session in Washington, the justices lived together in the same hotel, rather like a fraternity. For several months a year, however, they were required to "ride circuit" in the hinterland on awful roads and sharing rooms with strangers in country inns. The toll that these long absences may have taken on Marshall's family is hard to assess, and Mr. Paul doesn't really try. However, his delicate wife, Polly, became a chronic depressive who remained a near-recluse for most of their long life together, confined to her bedroom, and so distressed by the slightest noise that the few guests invited to their home in Virginia—she never accompanied him to Washington—were asked to remove their shoes and to speak in whispers. The loss of several children in early childhood added to her suffering, as did the dissolution of another from alcoholism. (Yet another would die in a freak accident when a storm blew a chimney down on his head.) When at home, Marshall was devoted to Polly, and her long silences when they were apart grieved him, but there is no evidence that he seriously considered resigning from the court to be with her.
The work of the Marshall Court appropriately forms the core of Mr. Paul's book. His elucidation of the Court's decisions—more than eleven hundred, more than half of them written by Marshall, and nearly all of them unanimous—is refreshingly crisp and concise, and unhobbled by legal jargon, an achievement for which general readers will be grateful. Although a lifelong Federalist—indeed, pretty much the last Federalist in government—Marshall served his entire term during administrations controlled by Republicans, many of whom regarded him as an enemy of "republican" values. "Nevertheless," writes Mr. Paul, "he managed to form a consensus on nearly every issue by sheer personality and intellect."
Marshall, says Mr. Paul, "was in all things a pragmatist." Consistently rejecting narrow interpretation of the Constitution, he asserted throughout his career that it was a living document that must respond flexibly to the nation's needs as it grew and its economy expanded. "He conceived virtually every foundational doctrine of constitutional law that has guided the United States for two centuries," more or less single-handedly establishing the principle of judicial review, and elevating the court to its now unquestioned role as the ultimate arbiter of the Constitution. Mr. Paul writes. (3) "In an era without precedent, Marshall invented the legal principles that form the foundation of American constitutional and international law today."
In practical terms, Marshall's skill at for winning agreement on the Court was one of his greatest achievements. Over his thirty-four-year tenure, all but eighty-seven of its decisions were unanimous, which both clarified the law and endowed decisions with greater authority. That achievement was all the more impressive as Federalist members of the Court gradually died off, to be replaced by Republican appointees who were initially unfriendly to Marshall's views. As Mr. Paul puts it, "Marshall was committed to stand vigil over the principle of federalism, keep the country on a path of moderation, and resist ideology with pragmatism."
Among the first and most crucial of the Marshall Court's decisions was Marbury V. Madison, which if it did not invent the principle of judicial review then cemented the Court's power to strike down federal laws as unconstitutional. It was, writes Mr. Paul, "the single most significant constitutional decision issued by any court in American history." William Marbury was one of forty-two justices of the peace for the District of Columbia who had been hastily approved by the Senate at the end of John Adams's term. Although signed by Adams, the commissions had not physically been delivered to the appointees when the clock ran out on the administration. (They in fact lay in a stack on John Marshall's desk, since he was then still serving as Secretary of State as well as Chief Justice.) When Jefferson took over the presidency, he told his new Secretary of State, James Madison, to deliver just twenty-five of the commissions. Marbury, one of the seventeen left behind, sued for his job. When Marshall agreed to hear Marbury's case, the Republican-controlled Congress charged that the Court for carrying out a "daring attack" on the president himself. In reprisal, Congress eliminated the offices of sixteen newly appointed circuit judges and cancelled the Supreme Court's 1802 term. The country's first battle over the independence of the judiciary was underway: if Congress could fire judges, Mr. Paul says, all the constitutional limits on government would be thrown into question.
When the Court finally met in February 1803, Marbury's lawyer argued that his appointment was well known to have been approved by the Senate, and that the administration was bound to recognize it. However, both Jefferson and Madison refused to acknowledge the court's jurisdiction, and made it clear that they would not comply. Meanwhile, sometime during the intervening two years, the seventeen commissions in question, including Marbury's, had mysteriously disappeared. Marshall faced the prospect of either bending to the president or defending principle with no means to enforce his will upon the administration. "In either case, the court's legitimacy would suffer, and it would lose any semblance of authority as a coequal branch of government," Mr. Paul writes.
When the decision was announced it ran more than forty pages. Marshall wrote famously, "The government of the United States has been emphatically termed a government of laws, and not of men." He asserted that once Marbury's commission had been signed, neither the president nor Madison had any legal right to deny it or to remove the appointee. Marshall might now have bluntly ordered Madison to give Marbury has job. But his reasoning now took a surprising turn. He wrote that while the Judiciary Act of 1789 had expressly gave the Court the power to issue such an order, the Constitution had not done so. Therefore, the pertinent section of the Judiciary Act was unconstitutional, and must be struck down. Marbury was still out of a job. But Marshall had deftly avoided a confrontation that he could not win, while establishing a lasting precedent for the Court.
Four years later, Marshall presided over the landmark treason trial of former vice president Aaron Burr for allegedly conspiring against the United States. The case involved espionage, payoffs, forged documents, false testimony by Burr's one-time ally General James Wilkinson, and shockingly prejudicial actions by Thomas Jefferson, who loathed Burr as a schemer and rival. The president publicly declared Burr to be guilty of treason before the trial began, and barred witnesses potentially hostile to the government's case from seeing an attorney, as guaranteed by the Constitution. He even providing the prosecutors with a stack of signed presidential pardons with a space for inserting the name of anyone willing to testify against Burr. If convicted, Burr would hang.
That Burr had engaged in some kind of scheme is widely accepted. The details remain murky, but it appears that he hoped to raise an army to invade Spanish territory beyond the border of the Louisiana Purchase—the kind of endeavor that would become commonly known in the antebellum era as "filibustering." But there was no evidence whatever that he had levied war against the United States, the legal definition of treason. Marshall now faced yet another daunting confrontation with the president. Burr's lawyers—Francis Scott Key, among others—demanded that Jefferson himself be forced to testify. Marshall declined, but he did order the president to turn over his correspondence with the shady Gen. Wilkinson. Jefferson refused, for the first time in American history citing that his correspondence was protected by "executive privilege." (Richard Nixon's lawyers would cite the case in their initial refusal to turn over the Watergate tapes.)
Lacking evidence, witnesses, and any overt act of war by Burr, the prosecutors argued that statements critical of the administration could be construed as treason—an argument which, Marshall recognized, if upheld, could be easily be despotically employed to censor any American's speech. In the end, he threw out virtually all of the government's, and in effect directed the jury to acquit Burr of treason, which it did, sparing his life, though leaving his reputation in tatters. Republicans violently condemned Marshall, with one Richmond newspaper declaring that an independent judiciary "is a very pernicious thing," and Jefferson sneering at his "twistifications" and his supposed "rancorous hatred" against the government. Mr. Paul terms Marshall's decision "the greatest act of political courage in his long career," which "did more to secure free expression and prevent tyranny than any other court in our history."
Many of the Marshall Court's decisions bore on maritime law and international relations at a time when the United States was no more than a minor power but heavily dependent on foreign trade. In one of them, an 1812 case wonderfully titled "Thirty Hogsheads of Sugar v. Boyle"—it had to do with casks of sugar produced by a Danish citizen in Danish St. Croix and exported on a British ship that was captured by an American cruiser—Marshall forged a unanimous consensus in favor of the principle that international law is an inherent part of United States law, now a keystone of the American legal system.
Over the next quarter century, the Court also unfurled a sequence of decisions that emphasized the supremacy of federal law, reflecting Marshall's unbending belief that the Constitution was intended to "restrain or annul the sovereignty of the states," and providing a legal framework for the rejection of states rights ideology and the assertion of federal power during the Civil War, and beyond. As early as 1819, Marshall wrote in McCulloch v. Maryland, "The constitution and laws of a state, so far as they are repugnant to the constitution and laws of the United States, are absolutely void." He declared that the Constitution was not a "compact of the states," but a creation of the people as such, thereby undermining to premise that would soon gain force in the South, that states could nullify federal law. "[T]his supreme and irresistible power to make, or unmake, resides only in the whole body of the people, not in any subdivision of them," Marshall wrote.
In 1820, in "the Great Steamboat Case," Marshall penned yet another monumental decision which, in Mr. Paul's words, which "more than any other made it possible to forge a unified national economy" out of competing state policies that tended to fragment resources and markets. The case pitted the state of New York, which declared that only steamboats which it had licensed were permitted in state waters, against an upstart entrepreneur who was attempting to initiate a cheaper service across the Hudson from New Jersey: Cornelius Vanderbilt, in his debut on the national stage. In its decision, the Court vigorously asserted the federal government's right to control interstate commerce in the national interest, trumping state regulations.
Increasingly, Southerners saw Marshall as a traitor to their interests. As Mr. Paul points out, "states rights" never meant just an abstract legal principle, but the hard political matter of slavery. Even the "Great Steamboat" decision was perceived as a direct threat to the "peculiar institution." If Congress had broad authority to regulate commerce, worried Virginia Rep. John Randolph, "they may emancipate every slave in the United States."
There is no clear evidence that Marshall ever foresaw, much less desired, such an outcome. He was no fire-breathing apologist for slavery, but he was no abolitionist either. He owned at least several slaves his entire adult life, and freed none of them. Although he opposed the slave trade, and supported the Society for the Colonization of Free People of Color, which supported the deportation of freed slaves to Africa, both positions served mainly as a cover for elite slaveowners who professed a respectable distaste for slavery but never challenged it as an institution. Although Marshall "was not shy about inventing legal precedents," in Mr. Paul's words, he invented none that threatened slavery.
By contrast, in one of the Marshall Court's last major decisions, Worcester v. Georgia, in 1835, he came down clearly and courageously on the side of the beleaguered Cherokee Indians, who had embraced Anglo-American institutions and customs (including slavery), but were on the brink of being forced off their land by the Jackson administration. The Court ruled that treaties had created sovereign land independent from state authority, ultimately paving the way for the present-day acknowledgment of tribal sovereignty. Enlightened though the decision may have been for its day, it was delivered stillborn. Jackson simply ignored the Court's ruling, telling the Cherokees that "as certain as the sun shines to guide your path, so certain it is that you cannot drive back the laws of Georgia."
The muscular federalism of the early republic died with Marshall, who succumbed to the effects of a spinal injury in 1835. "Marshall saw with cold clarity that he had become irrelevant in the age of Jackson," writes Mr. Paul. "His time had passed. He was still admired—the way one might admire a fine old house, well-built but no longer in fashion." (432) Jackson, relieved at last of his thorny Chief Justice, replaced him with Roger Taney, who would ratify every states rights claim that came before the Court until his own demise during the Civil War. Taney is little remembered today, except as a bulwark of reactionary jurisprudence. Marshall, however, is still justly celebrated as the most creative and farsighted Chief Justice ever to lead the Supreme Court, and whose lasting achievements are ably served by this first-rate book.