What can we learn about our country and our Constitution from a frontier-bred lawyer and judge who died 180 years ago, having written all of his opinions with a quill pen?
If that judge is John Marshall–fourth Chief Justice of the U.S. Supreme Court–we can learn a great deal about the rule of law, judicial integrity, and the meaning of our fundamental constitutional principles.
As I explain in a new essay in the Heritage Foundation’s Makers of American Political Thought series, “John Marshall: The Great Chief Justice,” Marshall arrived at the still rather insignificant Supreme Court in 1801, just as America’s fledgling party system was achieving its first peaceful transfer of political power from one party to the other.
By the time of his death in 1835, Marshall’s Supreme Court had established itself as the nation’s paramount legal institution, the preserver of our federal Union, and the vindicator of individual rights under stable, predictable principles of legal fairness and neutrality.
Marshall is not as well remembered by Americans today as he deserves to be, and among legal scholars and historians his career and legacy are contested subjects. Yet his admirers and detractors too often fight over a legendary Marshall and not the real man, misled by modern perceptions and controversies regarding the contemporary Supreme Court.
Because he was the Chief Justice when the Supreme Court first disregarded a federal law as unconstitutional, and thus explained the foundations of the power we now call “judicial review,” Marshall is regularly taken to be an apostle of judicial supremacy, the view that the Supreme Court has a decisive, final, and authoritative power to dictate the meaning of the Constitution to other branches of government, and even to shape our legal order with a kind of “judicial statesmanship.”
Because he deferred to the Congress’s flexible employment of both enumerated and implied powers to govern the nation, rejecting the arguments of state governments that his Court should invalidate federal laws on the basis of a “sovereign states” theory of the Constitution, Marshall is often described as a partisan “nationalist,” a forerunner of today’s advocates of big government, limitless national power, and administrative centralization.
Because some of his most famous opinions read a straightforward constitutional text as protecting property rights in contractual relationships for both individuals and incorporated entities, Marshall is cast as a friend of the “haves” in the American economy and an adversary of the “have nots.”
But all of these sketch portraits of Marshall are, in truth, caricatures that fail to capture the real man. Marshall did want his Court to take its rightful place at the pinnacle of the American legal order, and as the leader of his fellow Justices he took steps to make that happen, such as the simple expedient of uniting them behind a single “opinion of the Court” in deciding cases. But he never saw himself, or the judicial function he exercised, as playing the “statesman” or the lawgiver.
Courts of law decide the rights of the parties who come before them, and their focus is properly on doing justice in the case at hand. Marshall had no doubt that many of the cases his Court decided had large implications for the politics of the nation, but in his view others gave the law while he and his fellow judges merely interpreted it to adjudicate cases.
Was the Constitution still a fragile thing in 1801, whose bones, muscles, and sinews had to mature in order for the Union to prosper under the rule of law?
Marshall surely thought so, and so he was determined to secure his Court’s independence, to defend the robust powers the American people had given their national government, and to clarify the people’s rights and the limits of state authority over them.
In Marshall’s day, the boundary between national and state power was most likely to be trespassed by the state governments, not Congress, and individual rights were more in danger from unjust state laws than from the acts of a national government much more limited in its reach. In case after case, Marshall firmly enunciated the plain principles of the Constitution in response to such threats.
And as steadfast as he was in defense of his Court’s rightful authority, Marshall also understood that its institutional integrity depended as well on the restrained use of judicial power. In his 34 years as Chief Justice, only one provision of federal law was ever disregarded as unconstitutional.
Ironically, it was his successor, Roger B. Taney, who led the Court for the first time into attempting to play the “statesman” with ultimate interpretive authority, aiming to settle a great political controversy on the basis of a dubious reading of the Constitution. That gave the country only its second Supreme Court decision disregarding an act of Congress, in the Dred Scott case of 1857, which only turned up the heat under the national divisions that led to the Civil War. Modern commentators on the dangers of over-ambitious judges should look to that case, and not to the career of Marshall, who remains the very model of a judge’s judge, truly the Great Chief Justice.
