Stripping John Marshall’s Name from Law Schools Is a Mistake

O ur age of civic iconoclasm continues apace. In obedience to our misguided, new pieties, Cleveland’s Marshall School of Law will now consider stripping its namesake: Chief Justice John Marshall. This comes after the UIC John Marshall Law School decided to change its name to the University of Illinois Chicago School of Law last year. This indiscriminate purge makes no distinction between America’s great, even if flawed, Founders and those who were true purveyors of evil and oppression.

Marshall stands among the great forgers of America in general and of the U.S. Supreme Court in particular. He voted to support the Constitution at the crucial Virginia ratifying convention. He served important duties overseas in France. Above all, he served as the most consequential chief justice of the United States Supreme Court in American history. His opinions in cases such as Marbury v. Madison, McCulloch v. Maryland, and Gibbons v. Ogden established baselines for judicial power and federalism that redound to this day.

The impetus for removing Marshall’s name stems from accusations that he was a racist as well as a slave-owner himself. Yet this accusation fail to fully account for Marshall’s life and work.

Marshall indeed owned slaves. He did so to his own economic benefit, helping to make him one of the richer men in Virginia at the time. I need not critique those actions in my own words. I merely can call upon Marshall’s own to accomplish that task.

In The Antelope, Marshall considered his opinions on the international slave trade. While discussing technical matters of the law of nations, he couldn’t help but comment on the institution itself. “That [the slave trade] is contrary to the law of nature,” he declared, “will scarcely be denied.” In other words, the buying and selling of human beings violates the most fundamental, universal principles of justice. Marshall stated that “every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will seems to be the necessary result of this admission.”

Indeed, Marshall not only recognized the humanity of slaves but also their right to liberty and property — starting with their own minds and bodies but extending to what those minds and bodies acquired. Human beings own property. They are not property themselves. Moreover, Marshall’s opinion here and elsewhere were crafted with the burden of proof held against slaveholders and traders — thus, in favor of human liberty. As a judge, Marshall faced limits on how far he could apply natural principles of justice in line with his role as expositor and applicator of the written law. Still, he sought to put them together in his jurisprudence where he could.

What, then, is to be done with this distinction between personal actions and judicial reasoning? To lay it merely at the feet of selfish hypocrisy — as many now do — exposes our own vices as much as it pontificates on those of men like Marshall. Our iconoclasm sees neither the use nor even the potential for setting out ideals whose realization human frailty could not immediately accomplish. Marshall made an argument against slavery that undermined the defense of his own actions. He limited the legal power that he himself exercised in his personal life. In so doing, Marshall showed something of Abraham Lincoln’s later insight about the American Founding’s relationship to slavery.

Lincoln, responding to the Dred Scott decision in 1857, wrote that men like Marshall believed in the equality of all human beings in their natural rights. Yet he added:

They did not mean to assert the obvious untruth, that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.

The Founders, Marshall included, proclaimed a principle above and beyond their own deeds. They did so knowing the power of words and the logical working of justice declared to reform evil deeds. True to this knowledge, arguments such as Marshall’s proved much greater than his personal actions. They did so for reasons Marshall himself seemed to know — they accorded with truth and good.

A better political piety would neither ignore Marshall’s slave history nor strip a man of such virtuous accomplishment from the law schools whose content so indelibly reflects his greatest work. Instead, it would seek to show in him the eventual triumph of the principle of equality over the practice of human bondage. And it would find humility in asking where else we still suffer the same discordance today.