John Marshall

American jurist

• Born: September 24, 1755
• Birthplace: Germantown (now Midland), Virginia
• Died: July 6, 1835
• Place of death: Philadelphia, Pennsylvania

During his long tenure as chief justice of the United States, Marshall used his considerable intelligence, personal charm, and political skills to make the Court the chief arbiter of constitutional doctrine, firmly establishing what had been the weakest branch of the national government as an equal with Congress and the executive.

Early Life

John Marshall was the eldest of fifteen children. His father was a planter of moderate means who in time became a wealthy leading citizen of Virginia and later of Kentucky, serving in numerous official capacities in both states. Through Mary, the Marshall family was connected to most of the important families of Virginia. Growing to manhood among the landed gentry molded John Marshall’s character, yet his too casual and occasionally sloppy appearance was at odds with his background. John Marshall’s education was a typical blend, for the sons of southern colonial gentry, of intermittent and limited formal instruction by tutors in the classics and informal instruction by his parents in reading, writing, and elementary mathematics. The few books in the family library included several on law and served as Marshall’s introduction to the subject; from his family’s participation in state and local government, he learned about politics.

Only nineteen years old in 1774, when the chain of events beginning with the Boston Tea Party led to the American War of Independence, John Marshall followed his father’s example and enthusiastically took the patriots’ side in the quarrel with England. He was a popular first lieutenant in the local militia when the fighting started but followed his father into the Continental army as soon as it was formed. He served with distinction until independence was nearly won, rising to the rank of captain and becoming something of a hero. He fought in several battles, was wounded, and was with George Washington at Valley Forge.

During a lull, while stationed in Virginia, Marshall studied law and other subjects for three months at the College of William and Mary in Williamsburg. His law teacher was George Wythe, one of the most respected colonial lawyers, with whom Thomas Jefferson, Marshall’s cousin, had also studied. Although short, Marshall’s legal education was better than most, because there were no law schools in America. The College of William and Mary was one of the few to offer any law classes as part of the undergraduate curriculum. Most lawyers learned only by self-study while working as a clerk in a practicing attorney’s office. During these months of study, he also met and began courting Mary Willis Ambler, known all of her life as Polly.

Marshall had passed the bar examination and received his license to practice from Governor Thomas Jefferson in August of 1780. He returned to Oak Hill in Fauquier County, the family estate, to begin his career. In April of 1782, Marshall was elected to represent his county in the House of Delegates. In the state capital, Richmond, Marshall was introduced to a world beyond that of the country lawyer and landed gentry, and his ambition to be part of it was fired. Marshall renewed his courtship of Polly Ambler, whose family now lived in Richmond, and they were married on January 3, 1783, when he was twenty-seven and she was nearly seventeen. Marshall decided to move to Richmond to practice and became a leading member of the bar within three years.

Life’s Work

The man who had joined the mainstream of Virginia’s affairs was a commanding, lean figure, six feet in height, black-haired, with a nearly round face and strong, penetrating black eyes, complimented by a smile that seemed to disarm everyone. Honest, capable of sustained hard work, and possessed of a probing intellect, Marshall was also a gregarious man who loved games and athletic activity and who radiated a captivating friendliness. By nature, he was a gracious person, although he did not have a polished manner. As happened with so many patriots who actively participated in the military and political events of the War of Independence, Marshall had acquired a deep sense of nationalism from his travels through the former colonies and the comradeship of men from all parts of the emerging nation. The fact that this new nation should survive and prosper became a concern of Marshall for the remainder of his life.

Marshall worked hard to build his Richmond practice. He held various official positions with the state and local governments but refused any that would seriously interfere with his private law work. A major reason was Polly’s poor health after 1786. Their second child died shortly after birth, and then Polly miscarried a few months later. The shock of these two tragedies brought on a nervous breakdown from which Polly never totally recovered. For the remainder of their long married life and through the eight children yet to come, Polly could not abide crowds or noise. It was necessary to have servants to perform the routine household duties, and Marshall personally did the family marketing.

The condition of the nation worried Marshall throughout the 1780’s. He thought the national government was too weak to protect the new nation from foreign threats or to restrain state governments from abuses of power. For this reason, he wholeheartedly supported the work of the Constitutional Convention of 1787 to create a “more perfect union.” Elected as delegate to Virginia’s special convention to decide whether to adopt the new national constitution, he spoke strongly for it. Once the issue was favorably resolved, however, and the new national government instituted under the leadership of his idol, George Washington, Marshall’s attention returned to the practice of law.

Marshall refused all offers of appointment to national office, including the cabinet, until 1797, when he accepted what he thought would be a short-term diplomatic appointment from President John Adams. When Marshall returned to the United States in July of 1798, he was feted as a national hero for his part in what had become known as the XYZ affair. George Washington persuaded him to capitalize on his public recognition and run for a seat in the House of Representatives. Washington had persuaded him to agree to leave his lucrative private practice by convincing him that the republic was in danger from the development of political factionalism.

In the conventional wisdom of his day, Marshall believed that political factions were a threat to the smooth and stable operation of a republican government. Factionalism stirred up the masses to interfere in the affairs of government, best left to the better educated and propertied gentry, who alone could be expected to function from motives of civic virtue and on the basis of practical common sense. Although willing to fight for fundamental principle, Marshall was a man who otherwise believed in moderation and compromise on matters of policy; he saw that political polarization, if unchecked, would eventually destroy the nation. In Congress, he became the leading House spokesperson for President Adams’s moderate Federalist administration. In recognition of his service he was promoted to secretary of state in 1800, and, when the Federalists lost the election that year, to chief justice of the United States in 1801. Marshall would remain chief justice until 1835, the year he died.

The Supreme Court in 1801 had serious problems with low public esteem, low pay, poor morale, and rapid turnover of justices. The Court had developed no corporate sense of identity. Marshall’s first innovation was to persuade the justices not to give their written opinions seriatim—that is, each justice writing his own. Instead, in most cases Marshall persuaded the justices to confer until they reached a consensus so that a single opinion could be issued for the majority. Marshall correctly reasoned that the Court’s decisions would be much more authoritative if the majority spoke with one voice. The institution of this practice was the single most important reason for the rise of the Supreme Court to equality with the other branches of government. To facilitate the development of collegiality, he also encouraged the justices to lodge at the same Washington, D.C., inn during the one-to two-month yearly sessions.

A distinctive feature of the American system of government is the power of its courts to declare actions by other parts of the government unconstitutional. This power, called judicial review, had not yet been exercised except by some state courts (with mixed results) when Marshall became chief justice. The first instance of the power’s use arose out of the fury of President Jefferson and his party over the famous Midnight Appointments of President Adams in 1801, in the case of Marbury v. Madison (1803). The case involved a request that the Supreme Court issue a writ of mandamus (a court order) to Secretary of State James Madison. The Court’s decision, written by Marshall, first lectured Jefferson and his party on their failing in the practice of principles of good government and then announced that the writ of mandamus requested in this case could not be issued because section 13 of the Judiciary Act of 1789, which gave the Court the power to issue the writ, was unconstitutional.

This self-denial by the Court was a shrewd political maneuver. In its first big constitutional case under Marshall, the Court had exercised judicial review and declared an act of Congress unconstitutional, and there was nothing anyone could do about it. It was also a brave act in the face of the enormous antijudiciary bias of the Jeffersonians. Although the Court did not declare another act of Congress or the president unconstitutional during Marshall’s tenure, it did so for state laws on a number of occasions. Thus, the practice as well as the principle of judicial review was established.

After 1805, the political pressure on the Court decreased, partly because the government’s attention was increasingly focused on foreign affairs and partly because, under Marshall, the Court had acquired greater respect and, therefore, greater independence. The work of the Court now centered more on two objectives: the supremacy of the national government and the preservation and protection of rights. The two were directly related in Marshall’s view.

The point in establishing the supremacy of the federal Constitution, statutes, and treaties over the states was to counter the threat to inalienable rights from abuses of power by the states. Marshall perceived this as the most serious threat of all. For example, the Constitution prohibited the states from interfering with the obligations of the parties to a contract, yet many states were doing just that in numerous ways. In a long line of cases interpreting the “contract clause,” Marshall’s court fashioned from it a powerful defense of the private citizens’ right to whatever property they had come by honestly. In the famous trial of Aaron Burr for treason, Marshall interpreted the Constitution to prevent the charge of treason from becoming an instrument to punish political enemies.

In Gibbons v. Ogden (1824), Marshall’s court struck down a law creating a steamboat monopoly, not only because it infringed on federal power to regulate interstate commerce, but also because the Constitution’s framers had given the commerce power to Congress in order to establish the whole of the United States as a free trade area and the steamboat monopoly violated freedom of commerce. The issue of slavery presented a serious problem for Marshall; on one hand, the slave owner’s property right had to be protected, like any other property right, but on the other hand, Marshall thought that black slaves had the same rights as white people. It seemed to him that the only solution to this dilemma was the American Colonization Society . This organization hoped to remove all black slaves from the United States to Liberia, Africa.

The Jackson years disheartened Marshall. He hated the viciously partisan character assassinations of the Jackson campaign, and he feared that universal manhood suffrage, a major Jacksonian goal, could only result in politicians pandering to the prejudices of the common people. He also believed the states’ rights orientation of the Jackson appointees to the Court threatened all of his work to establish the supremacy of the Constitution, guarantees of rights, and the restraint of state uses of power.

As Marshall increasingly saw himself as a relic of the past, he found it necessary to compromise on some issues to save at least something of his work. When Polly died in 1831, he was desolate and felt very much alone. There were, however, some positive moments. When Jackson stood up for the supremacy of the national government in 1832 against South Carolina’s attempt to nullify a national tariff, Marshall relented somewhat in his dislike of the old general. Although unable to stop Georgia from brutally removing the Cherokee Indians from the state and humiliated at seeing the state of Georgia flout the Supreme Court’s decision forbidding the removal—the Court had no means of enforcing it and the president would not—a remedy was provided. President Jackson’s Force Bill, passed by Congress in connection with the Nullification Crisis, provided the Court with its own officials to enforce future decisions.

In 1835, Marshall was seventy-nine when he suffered a spinal injury in a stagecoach accident from which he never fully recovered. He also suffered from serious liver trouble. When told that his time was short, he put his affairs in order and, on July 6, 1835, he died.

Significance

Marshall built better than he knew. He was mistaken in his beliefs about political parties and the superior governing abilities of the gentry, but practices he established for the Court and many of his judicial doctrines are still important. Supreme Court majorities continued after Marshall generally to speak with one voice. His example of collegial leadership remains the standard for chief justices. The defense of property rights based on the contract clause and his interpretation of the commerce clause contributed significantly to the legal environment necessary for the free enterprise economic system to flourish. Treason remains only a crime and not a weapon against the enemies of whatever politicians are in power.

In raising the visibility and authority of the Supreme Court to a position of equality with the other branches, Marshall created a potent force for political stability within the American system of government. This was his most important achievement. The government’s ability to correct its mistakes through the Supreme Court’s exercise of the power of judicial review inspires confidence and trust in all levels of the system. The Supreme Court became the guardian and final arbiter of the Constitution, establishing the primacy of the constitutional principles of the nation’s founders. In 1801, when John Marshall became chief justice, none of this was certain to evolve, but the fundamentals were all in place when he left, thirty-four years later. During that time, he wrote 519 of the Court’s 1,106 opinions, including 36 of the 62 involving major constitutional questions. John Marshall had a major hand in creating the most balanced and equable judicial system in the world.

Bibliography

Baker, Leonard. John Marshall: A Life in Law. New York: Macmillan, 1974. A good biography of Marshall’s professional life; includes some private matters as well. Explains many details about how Marshall and the legal system in his time worked. Also explains his reasoning in his Supreme Court decisions.

Baxter, Maurice G. Daniel Webster and the Supreme Court. Amherst: University of Massachusetts Press, 1966. A superb and scholarly examination of the relationship between Daniel Webster, one of the leading constitutional lawyers of his day and a Marshall supporter, and the development of judicial doctrine by the Supreme Court during much of Marshall’s tenure as chief justice.

Beveridge, Albert J. The Life of John Marshall. 4 vols. Boston: Houghton Mifflin, 1916-1919. Detailed and wonderfully told story, yet sadly lacking in balance, making Marshall seem a heroic savior of his nation against arch-villains. Even so, these four volumes are still the starting point for Marshall scholarship.

Faulkner, Robert K. The Jurisprudence of John Marshall. Princeton, N.J.: Princeton University Press, 1968. Definitive examination of the political philosophy of Marshall. Traces the origins to a mix of the theories of John Locke, American nationalism, and the respect for landed gentry typical of the classical Romans, especially Cicero.

Horwitz, Morton J. The Transformation of American Law: 1780-1860. Cambridge, Mass.: Harvard University Press, 1977. Mentions Marshall only briefly. Probably the best one-volume legal history of the era to date. Emphasis is on the transformation of English law in the colonies into a modern national legal system and how this transformation aided economic development.

Newmyer, R. Kent. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press, 2001. Focuses on Marshall’s legal philosophies, analyzing some of his Supreme Court decisions and placing his beliefs in historical context. Describes how Marshall’s experiences as a soldier in the Revolutionary War, his legal career, and his childhood in Virginia influenced his constitutional thinking.

‗‗‗‗‗‗‗. The Supreme Court Under Marshall and Taney. New York: Thomas Y. Crowell, 1968. A succinct but thorough and perceptive study of the Marshall Court in the context of the people and events of the times. The Marshall chapters concentrate on Marshall as chief justice, and little of his personal life is included.

Robarge, David. A Chief Justice’s Progress: John Marshall from Revolutionary Virginia to the Supreme Court. Westport, Conn.: Greenwood Press, 2000. Focuses on the formative influences in Marshall’s life before he joined the U.S. Supreme Court, including his upbringing in Virginia, military service, legal career, and experiences as a federalist and diplomat.

Simon, James F. What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States. New York: Simon & Schuster, 2002. Describes how Marshall, a proponent of federalism, and Jefferson, an advocate of states rights, engaged in a lengthy competition to determine the direction of the newly created United States.

Stites, Francis N. John Marshall: Defender of the Constitution. Boston: Little, Brown, 1981. This is an excellent short biography of Marshall. Well researched and carefully written, it brings together in a reasonable synthesis the voluminous scholarship available on Marshall.