Magazine | July 9, 2018, Issue

Juris Prudence

Joel Richard Paul
Without Precedent: Chief Justice John Marshall and His Times, by Joel Richard Paul (Riverhead, 512 pp., $30)

When John Marshall was asked the first time by President John Adams to be on the Supreme Court, he promptly declined. Alexander Hamilton had rejected the same offer from President Washington, as had Patrick Henry. John Jay had been chief justice but resigned when he was elected governor of New York; when Adams asked him to return to the Court, he refused to preside over “a system so defective.”

The Supreme Court was no place for an ambitious, self-respecting jurist. In its first decade, it averaged just over six decisions per year, most of them insignificant. There were no lower courts of appeal, which meant that justices had to “ride circuit” around the country on horseback, hearing mediocre lawyers debate lackluster cases. For most, the highest court in the land was a step down.

Fortunately, John Marshall changed his mind when he was asked again by President Adams in 1801. After having three chief justices in eleven years, the Court would be dominated by Chief Justice Marshall for 34 years. Before Marshall, there was a majority decision but justices spoke individually, if at all. Marshall began the practice of delivering a single “opinion of the Court” that justices could concur with or dissent from, and more often than not, that opinion was John Marshall’s. He wrote every opinion of the Court in every case he participated in during his first five years, and three-quarters in the next seven years. Only eight times did Marshall file a dissenting opinion in a Supreme Court case. Just as much as any great president or legislative leader shaped the presidency or Congress, Marshall transformed an insignificant legal body into a crucial institution of constitutional government. “If American law were to be represented by a single figure,” Supreme Court justice Oliver Wendell Holmes Jr. once said, “sceptic and worshipper alike would agree without dispute that the figure could be but one alone, and that one, John Marshall.”

A compelling new book tells the fascinating story of how that happened. Much of Joel Richard Paul’s Without Precedent deals with Marshall’s pre-Court life, providing lively accounts of his role in America’s early history — as soldier in the Revolutionary War, member of Virginia’s legislature and delegate at its convention to ratify the U.S. Constitution, minister to France, member of Congress, and secretary of state. This background is crucial for understanding Marshall’s later work in guiding the Court through cases involving complex issues both foreign and domestic.

As the subtitle announces, the work is also about Marshall’s times, providing a full picture of the Founding-era context and the swirling circumstances — from the French Revolution to the War of 1812, slavery, and westward expansion — in which Marshall pursued his task of building a coequal branch of government with little more to work with than the Constitution’s grant of the “judicial power.”

The book juxtaposes the lives of Marshall, the practical-minded Federalist, and his Republican second cousin Thomas Jefferson, always drawn to political abstractions. Their careers reached the pinnacle of power at almost exactly the same moment: In December 1800, Vice President Jefferson (as president of the Senate) informed Secretary of State John Marshall of the Electoral College returns from that year’s election; three months later, it would be the new chief justice, John Marshall, who would swear in the new president of the United States, Thomas Jefferson. Indeed, it was the result of that election, and the realigning victory of the Jeffersonian Anti-Federalists, that drew Marshall to the idea of serving on the Supreme Court — not as a narrowly partisan move, but to establish more firmly a judicial check on the popular branches that (as it turned out) would be controlled by one party for decades.

Paul’s narrative excels when providing background details and the political context of Marshall’s famous decisions. Unlike many previous Marshall biographies, this book properly focuses on the practical circumstances that form the ground of Marshall’s decision-making. Consider Cherokee Nation v. Georgia (1831), in which Marshall wrote a majority opinion declining to issue an injunction against a set of Georgia laws depriving the Cherokee nation of rights under state law. Paul shows that Marshall actually agreed with the dissent written by Smith Thompson and joined by his close friend and ally Joseph Story. But Marshall knew that he could not change the outcome of the case by voting with the dissent and that, if he did, a much broader and more racially hostile opinion would have been written by Justice William Johnson. Marshall’s strategy to limit the scope of the majority decision bore fruit when he was able to take up a more opportune case the next year: In Worcester v. Georgia, he was able to lead a 5–1 majority upholding the sovereignty of the Cherokee nation.

Perhaps most interesting is Paul’s recounting of the circumstances surrounding Marshall’s most famous case, Marbury v. Madison (1803). Two centuries removed, it is easy to read Marshall’s opinion as though it were simply an exercise in deciding a nuanced legal question. Largely forgotten, however, are Marshall’s masterly behind-the-scenes maneuvers to ensure that the case would arrive at the Court at the right time and in the proper form. Paul argues convincingly that Marbury was a setup, designed to give Marshall an opportunity to insulate the Court by establishing judicial review, and posits that Marshall may have resorted to questionable evidentiary tactics in order to establish Marbury’s standing in the case.

Yet while the book covers all the great decisions of Marshall’s tenure, it doesn’t provide enough depth to capture the deliberative substance and prudent consistency that constitute Marshall’s statesmanship. Perhaps that is why Paul can only conclude that Marshall was a pragmatist, willing to abandon principles in favor of compromise, often inconsistent and unconcerned with consequences. He sees a “master actor” who had the “confidence and imagination to reinvent the law” and a “gift for illusion” that allowed him to transform himself, the Court, and the country.

Fortunately, one can read Marshall’s judicial opinions to complete the account. Unlike modern judicial decisions — cluttered with footnotes, legal jargon, and references to convoluted court precedents — Marshall’s opinions are vivid, well organized, and easily accessible. Marbury v. Madison is as coherent and convincing today as it was two centuries ago.

The clarity of Marshall’s writing is not incidental; it proceeds from his core belief that “a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” Marshall’s defense of the responsibility of the Court to interpret the Constitution rests not on an argument about the technical expertise of judges but rather on the assertion that the document was instituted by the sovereign American people as the supreme law of the land (Article VI) and that all constitutional officers — legislators and presidents as well as judges — take an oath to support and defend it.

“The people made the Constitution, and the people can unmake it,” Marshall wrote in Cohens v. Virginia (1821). “It is the creature of their will, and lives only by their will.” Because the Constitution is the highest expression of the American people, the Court must apply its meaning even if doing so means overturning a law passed by the elected representatives of the people. Rather than judicial supremacy, Marshall established the doctrine of constitutional supremacy springing from “the authoritative language of the American people.” The purpose of judicial interpretation is not to mold the Constitution to fit the “spirit of the times” but rather to make sure that (until amended) the spirit and the letter of the Constitution endure the times. In this sense, the Constitution is both a charge and a limitation on judicial power, as well as on the executive and the legislature. Marshall reiterated this in McCulloch v. Maryland (1819), when he reminded judges, “We must never forget that it is a Constitution we are expounding.”

Most Americans know little about John Marshall, and what they do know has to do with some vague idea of judicial review or the false assumption of judicial supremacy. That’s too little, but also too much. Marshall wanted to make the Supreme Court more consequential, but he did not intend it to be the ultimate arbiter of the Constitution. Marshall sought to elevate the Constitution above party and popular passions by strengthening the Court within the constitutional regime of checks and balances.

While Marshall certainly reacted to practical political concerns and did not shy from creating new judicial doctrines, it would be a mistake to ignore the larger constancy of his understanding of the purpose and meaning of the Constitution. Reviewing his judicial statesmanship, his juris prudence, does indeed remind us that judges are still political actors, but it also shows that the best judges — of whom Marshall was the greatest — are partisans not of political party but of constitutional self-government.

Matthew Spalding is the associate vice president and dean of educational programs for Hillsdale College in Washington, D.C., where he is the Allan P. Kirby Jr. Chair in Constitutional Studies.

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