John Marshall: Definer of a Nation
by Jean Edward Smith

Our Price: $57.95
Availability: Usually ships in 1-2 business days
Buy Used: from $2.16 (click here)
Category: Book
See more book details and other editions

Book Summary Information

Book Reviews of John Marshall: Definer of a Nation

Book Review: The fate of innovators.
Summary: 4 Stars

The court Marshall joined was a paltry break on the presidency and the Congress. With little established authority or standing in the esteem of the nation, the Supreme Court heard few cases, deciding fewer still of lasting significance. With Jefferson's antifederal forces rushing into Washington with plans to severely restrict the jurisdiction of the Supreme Court and threatening to overcome constitutional limits, the new chief justice had little at his disposal except his wit and his pen, his good humor and what an earlier biographer called his single idea, national union.

Every aspect of the court and its jurisprudence was permeated by Marshall's influence, from jurisprudential hermeneutics to the quotidian features of the court. Marshall asserted that the Constitution was a legal document, not a mere expression of political aspirations, one susceptible of interpretation and application through the ordinary adjudicative processes; he established the supremacy of the Constitution (not the judiciary) and deftly asserted the power of the courts to set aside legislative acts where they exceeded the limited powers delegated to the Congress by the people in the Constitution. The power of the Supreme Court was robust according to its vital, but limited, purpose. The Supreme Court was guarantor of constitutional limitations, the last break on power. One observer notes of Marshall, "He hit the Constitution much as the Lord hit the chaos, at a time when everything needed creating."

Much is made of Jefferson and Alexander Hamilton personifying contrasting archetypes recurrent American history, but with respect to the Constitution perhaps the better comparison is between Jefferson and Marshall. If Thomas Jefferson, as author of the Declaration of Independence, symbolizes in American history human liberty and majority rule, then John Marshall, as the greatest expositor of the Constitution, symbolizes order and the rule of law. While Jefferson feared the centralizing tendencies of the Constitution, especially the authority that the unelected Supreme Court would assert under Marshall, Marshall feared state particularism, the disastrous consequences of which he saw during the war when the fractious colonies were barely able to conduct the war. And although Smith points out Marshall was a heritor of the Age of Reason, he nonetheless feared that reason alone would not restrain men and that violence would naturally ensue in the absence of a powerful ordering union. As Irving Babbitt characterized Marshall's judicial philosophy, he sought to superimpose on the "ordinary self" of man, with his boundless appetites, the "higher self" of the Constitution, with its limits on the power of the states and Congress. Marshall believed that it was the paramount role of the courts to impose this "higher self" on the transient passions of the political branches. "To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power of the Judiciary?"

Moderate Federalists like Marshall saw the Constitution as a hedge against both popular and governmental caprice. The powers of the three branches of the central government were to be confined, the outer boundaries established by the text of the Constitution, with the federal courts patrolling the frontiers of delegated power for excursions that might lead to consolidated power, and thence to disunion or despotism. At the same time, the centrifugal forces that prevailed under the Articles of the Confederation would be bridled by the powers extracted from the states and delegated by the people to their central government, among them the power to conduct foreign relations and regulate commerce among the states. Each branch and level of government was limited to the exercise of power within its sphere. These limits would prove frustrating to Jefferson and his followers, no less than to latter-day "progressives," who justly saw these restrictions as breaks on their ambitions. But the American Constitution instituted a constitutional, not a direct, democracy, a republic where the exercise of power was diluted and subject to all manner of restriction and procedural regulation intended to purge power of folly, caprice and superfluity. When Jefferson bristled at the Constitution's legislative inefficiency, Marshall saw his impatience for what it was. "Every check on the wild impulse of the moment is a check on his [Jefferson's] power."

Without the courts or some other guarantor of this system of limited and divided powers, Marshall recognized that this whole system would readily collapse under the press of ambitious men. In establishing the Supreme Court as the Constitution's vigorous guarantor, Marshall made his most memorable contribution. Although he was not the first to invoke the power of judicial review, he made it a vital source of judicial power, famously asserting it in principle in Marbury v. Madison (1801), while deftly declining its exercise in face of a hostile political climate. But he did not place undue faith in the courts, as many today do. Marshall did not assert that the Supreme Court's power was unlimited or that the Constitution was but wet clay in the hands of wilful judges, intended by the Founders to be a revolutionary document. As Robert Bork points out, although Marshall was not above misreading statutes, he was faithful to the Constitution. American federal courts exercised their power within a scheme of law and were confined by it no less than the political branches.

Today's judicial activists take as the fountainhead of their power Marshall's decision in Marbury, neglecting the coordinate limits on the courts he fully acknowledged and saw as inescapable. "[I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature." Marshall saw judicial review as an essential institutional feature of the American system of law, but could not conceive that constitutional limits were mutable through judicial interpretation. "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" The role of the courts is vital, but should they arrogate unto themselves power not contained within the Constitution, disorder will ensue and the very purpose of a written constitution subverted. If the courts assume the power to remake the constitution outside of the democratic process, the Constitution's guarantees are jeopardized and liberty threatened, as surely as they would be by the extra-constitutional exercise of legislative or executive authority.

Marshall was not a proponent of judicial supremacy, nor of constitutional obscurantism. "The enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said," he wrote in the Gibbons v. Ogden. He would have no part of rights or powers hidden in penumbras, those fecund areas of judicial activism. Earlier in his tenure, he established that jurisdiction of the courts was governed by the written law, not by the unenacted common law.

Jean Edward Smith's biography of Marshall is a model of clarity and judiciousness. Its signal contribution is to remind us that the fate of innovators is to see their creations employed in ways and for purposes they did not intend and could not have imagined, and would have opposed. John Marshall has suffered more than most...

Summary of John Marshall: Definer of a Nation

United States Books

• Subjects > Biographies & Memoirs > Historical > United States
• Leaders & Notable People > Political
• People, A-Z > ( M ) > Marshall, John
• Professionals & Academics > Lawyers & Judges
• Law > Procedures & Litigation > Civil Procedure