John Marshall, the Great Chief Justice

There is only one judge in American history for whom the epithet “the Great” has been commonly used: John Marshall (1755–1835), the fourth chief justice of the United States. Yet in a strange way, his outsized reputation, built on the brilliant eloquence of his groundbreaking interpretations of the Constitution, has obscured as much as it has revealed about his true greatness. In the hands of scholars who attempt to account for Marshall’s achievements, he has become a shapeshifter, molded and remolded for others’ agendas, and the real Marshall has been largely lost to view. In what follows, I will try to explain this, but first the reader needs a character sketch.

John Marshall was born and raised on the then-frontier of Virginia, the eldest of fifteen children. He shared Randolph ancestry with Thomas Jefferson, which made them second cousins once removed. He had little formal education as a boy and was mostly taught by his father Thomas or relied on himself. During the Revolution he served in the Continental Army. Marshall was a brave officer and leader of men, fought in several notable battles, and was slightly wounded once. Toward the end of the war he undertook several months of legal study at William and Mary and began to practice law. In 1783, he married Mary (“Polly”) Ambler and they had eight children, six of whom survived childhood.

Marshall quickly established a successful legal practice in the new state capital of Richmond and became involved in state politics, serving in the legislature and in the state convention that ratified the U.S. Constitution in 1788. About a decade later he was sent by President John Adams to Paris as one of three ministers to revolutionary France. The attempt on the part of French officials to elicit bribes from the Americans was exposed in Marshall’s dispatches to the U.S. government and the “XYZ Affair” made him famous overnight. On his return home he was persuaded by George Washington to run for the House of Representatives. Elected as a Federalist, he was appointed secretary of state about a year later, and chief justice about a year after that. At just 45, with no prior judicial experience, Marshall now came to the center chair on the highest court in the land, just as his cousin Jefferson—the leader of the Republicans (forerunners of today’s Democrats)—came to the presidency in the first peaceful change of partisan control of our national government.

When Marshall came to the Supreme Court, its place in our constitutional order was still relatively insignificant. By the time of his death 34 years later, the federal judiciary’s stature as a branch of government coequal with the executive and legislative was securely built. Marshall instituted the practice of issuing a single opinion of the Court—often written by him—and in those opinions his Court established the responsibility of the judiciary to prefer the Constitution to conflicting ordinary laws (Marbury v. Madison, 1803); secured the protection of private rights even in contractual or charter relationships with state governments (Fletcher v. Peck, 1810, and Dartmouth College v. Woodward, 1819); and made way for ample national powers that were not hampered by artificially restricted understandings of Congress’s constitutional authority (McCulloch v. Maryland, 1819, and Gibbons v. Ogden, 1824). Marshall’s estimation of the Constitution’s nation-binding purposes was in accord with the American (not merely Virginian) patriotism he had imbibed under Washington’s leadership during the Revolution. It was also a better understanding of the Constitution than was on offer by the party of Jefferson, with its retrograde “states’ rights” reading of the nation’s charter.

In Marshall’s day, the justices of the Supreme Court spent only two or three months of the year together in Washington to fulfill their duties on that Court and spent more time presiding (together with district judges) over trials in the federal circuit courts. The most significant trial in Marshall’s career was the lengthy 1807 treason trial of former vice president Aaron Burr, prosecuted by the Jefferson administration. In the Burr trial, Marshall established that criminal defendants can demand evidence even in the president’s possession, and that the treason clause of the Constitution must be strictly construed in a defendant’s favor, else the most serious charge in our political order be brought wantonly to bear against the adversaries of a presidential administration.

Many constitutional precedents large and small were set by Marshall, whose limpid writing and brilliant reasoning have been mistaken by many modern legal scholars for “creativity” on his part. He is commonly understood to have shaped constitutional law to fit his politics, rather than—as was truly the case—seeing his political preferences as fundamentally shaped and constrained by the Constitution.

A case in point: The legal historian Paul Finkelman recently revealed that Marshall had owned—and bought and sold—many more slaves than his biographers had previously realized. Then, reviewing Marshall’s record in slavery cases—suits for freedom and maritime slave-trade cases—Finkelman accuses Marshall of shaping the law in favor of slavery. His case rests on the proposition that Marshall is “known” to have been a creative judge whose political agenda molded the law to suit his ends. Therefore, his failure to mold the law in anti-slavery directions suggests he was the friend of slavery and the enemy of freedom for the enslaved.

But what Finkelman signally fails to do is to show, on the basis of legal principles governing at that time, that Marshall came to the wrong conclusion in all of these slavery cases. In this way, scholars who praise (or condemn) Marshall’s “creative” jurisprudence in famous cases like Marbury and McCulloch fail to show where the “creativity” lies—where exactly Marshall was saying something other than what the Constitution’s principles prescribe. Marshall was a brilliant expositor of the Constitution and the law—and this is the cause of his great reputation—but he understood himself always to be acting under the constraint of legal principles he did not devise but must discern and obey.

If a judge is to aspire to “statesmanship,” it must be of this discerning kind, not of the creative kind permitted and expected in legislators and especially presidents. Understanding the Great Chief Justice must begin with this understanding he had of himself and his work on the Supreme Court.