George Will’s Sunday column is a nice tribute to Chief Justice John Marshall, who (as I recently posted) was born 250 years ago September 24. It’s a good column, marred only by two small things. Or maybe not so small–let readers decide. Toward the end of the piece, Will relies on the excellent 1996 biography by Jean Edward Smith, John Marshall: Definer of a Nation. He writes that “Smith locates Marshall’s greatness” in the fact that he assured the triumph of the idea that “the U.S. Constitution is a legal document construed by courts, not Congress.” This may be Will’s idea of the proposition Marshall established, but he is wrong to attribute that argument about Marshall to Smith. It is not Smith’s argument, nor is it a reasonable inference from Smith’s book. If Will doubts it, I suggest he turn to Smith’s endnote 12 on page 525:
“Marshall did not suggest, nor did he ever maintain, that the Supreme Court was the ‘ultimate’ interpreter of the Constitution or that its jurisdiction over constitutional matters was exclusive. His definition of judicial review was restricted and pertained only to the Court’s authority to invalidate acts of Congress and the executive when those measures infringed upon the Court’s judicial authority.”
The second problem in Will’s column is something that he does in fact get from Smith, and it appears they are both wrong. Will writes that when Marshall died in 1835 in Philadelphia, “The Liberty Bell, while tolling his death, cracked. It never rang again.”
This tale is indeed told in Smith’s book, and he cites an obscure little 1989 book on the Liberty Bell as his source. It’s a wonderful story, so poignant that one wants it to be true. But it’s not. A couple of years ago, while my wife and I waited in a long line to check in for an overseas flight at the Philadelphia airport–as it happens, to fly to London so I could give a paper on Marshall–we struck up a conversation with someone else in line, a ranger from the National Park Service who worked at Independence Hall, where the Liberty Bell is located. I related this story of the Bell cracking when rung on the occasion of Marshall’s death (which I probably learned from Smith too), and the ranger told us it wasn’t so–that she had heard it a number of times from visitors and could assure me that the tale was false.
And so it seems. No other Marshall biographer tells this story. Not Allan Magruder in 1885, not James B. Thayer in 1901, not Albert Beveridge in 1919, not R. Kent Newmyer in 2001. Only Smith tells it, and as wonderful as his book is, the cracking of the Liberty Bell just didn’t happen that way. I haven’t seen Smith’s source, and I don’t know how long the legend of Marshall and the Bell’s cracking has floated around in the stories people tell.
Here’s the story on the official Park Service website on the Liberty Bell: “By 1846 a thin crack began to affect the sound of the bell. The bell was repaired in 1846 and rang for a George Washington birthday celebration, but the bell cracked again and has not been rung since. No one knows why the bell cracked either time.” That’s it–no connection to Marshall, who had died eleven years earlier.
No blame of George Will here. He relies on a terrific book, one of the best ever written on Marshall and a sound piece of scholarship in general. But the cracking of the Liberty Bell doesn’t belong in the story of John Marshall. Alas.