John Marshall: The Man Who Made The Supreme Court

Richard Brookhiser, “John Marshall:  The Man Who Made The Supreme Court” Basic Books, 2018, 277 pp.

The author, Richard Brookhiser, is a National Review Senior Editor.  He has written previous biographies of America’s founding generation; he has dealt with Washington, the Adamases’, Hamilton, Madison, and Gouverneur Morris. He now adds John Marshall.

Marshall, the third Chief Justice of the U.S. Supreme Court, served from 1801 to 1835, is credited with authoring the seminal court opinions that defined the structure and powers of the national government as outlined in the Constitution. The author contends that Marshall made the Supreme Court the equal of Congress and the president, and in some cases their superior, in terms of power.  For instance, probably the most important decision ever was Marshall’s opinion in Marbury v. Madison (1803) which established the doctrine of judicial review, whereby the Supreme Court became the final arbiter of the meaning of the provisions of the Constitution. 

Alexander Hamilton in The Federalist Papers had indicated that the Court had such power.  Brookhiser notes that Marshall used three weapons to interpret the Constitution: its words, the historical context of its creation, and the intention of its drafters. Marshall rejected the widely held notion that the Constitution was a creature of the states, not the people as a whole.

Marshall was a Virginian, served in Washington’s army and revered Washington for the rest of his life.”  Like Washington and other prominent Virginians, Marshall was a slaveholder, but unlike Washington he never freed his slaves.  He was a cousin of Thomas Jefferson but the two grew to hate each other.

John Adams had succeeded Washington as president, and he selected Marshall to be his Secretary of State and when Adams returned to Massachusetts to tend to his sick wife, “Marshall ran the executive branch in his absence.”  Adams subsequently nominated Marshall to be the Chief Justice and Marshall was confirmed on January 27, 1801.

Brookhiser provides brief narratives of the major cases, in addition to Marbury, decided by the Court during Marshall’s 34-year tenure as Chief Justice. Quite often, Marshall wrote for a unanimous court, something that rarely happens today.

Marshall wrote a 25,000-word opinion in United States v. Burr, which examined the law of treason and led to Aaron Burr’s acquittal. He upheld the validity of contracts in Fletcher v. Peck and Dartmouth v. Woodward. He validated the expansion of Congress’ power under the “necessary and proper” clause in McCulloch v. Maryland. He defined Congress’ power over interstate commerce in Gibbons v. Ogden.

In one of Marshall’s last opinions, in the case of Barron v. Baltimore, he ruled that the protections of the Bill of Rights to the Constitution only applied to the federal government, not to the states. This set the stage for post-Civil War cases that interpreted the 14th Amendment as empowering the court to selectively apply the protections of the Bill of Rights to the states.

Marshall died on July 6, 1835. President Andrew Jackson named Roger Taney as his replacement. Taney, who in 1857 authored the infamous Dred Scott opinion, would serve as Chief Justice until 1864.

My Notes:

Pg. 1:  At the helm of the Supreme Court, Marshall brought order by expressing and implementing the principles he had imbibed from Washington and from other Federalists such as Hamilton.  In a series of landmark decisions, he defended contracts and corporations from meddlesome state laws and struck down state-sponsored monopolies, unblocking what Hamilton called ‘the veins of commerce’; he affirmed the constitutionality of a national bank, one of the keystones of Washington’s economic policy; he compelled state courts to acknowledge the supremacy of the federal judiciary; and he tried, in vain, to sustain Washington’s Indian policy, whereby native peoples who signed and honored treaties with the US could keep their tribal lands.

Pg. 38:  (The Federalist’s did all they could to ensure the authority of the US came from the people and not from a union of states).  The Preamble to the Constitution derived its authority from ‘We the People of the United States of America.’  Gouverneur Morris opened the Preamble this way to avoid listing the signatory states since Rhode Island had sent no delegates to the Philadelphia convention, and most of New York’s had gone home in disgust halfway through.  But Morris also wanted the Constitution to be an act of the people, not of the states, or so Marshall interpreted it.

Pg. 78:  The federal court system had been organized by the Judiciary Act of 1789.  The Supreme Court was to be composed of five associate justices and one chief justice.  They met twice a year, in February and August, for sessions that lasted initially about ten days.  Under the Supreme Court in decreasing order of importance, were three circuit courts and thirteen district courts. 

In 1801 a new Judiciary Act created sixteen new circuit court judges in six circuits, dispersing the judicial system more widely about the country and sparing the justices of the Supreme Court the chore of riding circuit themselves. (P. 80).

Pg. 79:  The Eleventh Amendment (1794)—the first after the Bill of Rights—made states immune from suits brought by the citizens of other states.

Pg. 109:  The Burr conspiracy was a suspected treasonous cabal of planters, politicians, and army officers in 1807. The alleged cabal was led by Aaron Burr, the former Vice President of the United States (1801–1805). According to the accusations against him, his goal was to create an independent country in the center of North America including the Southwestern United States and parts of Mexico. Burr's version was that he intended to farm 40,000 acres in the Texas Territory which had been leased to him by the Spanish Crown.

President Thomas Jefferson ordered Burr arrested and indicted for treason, despite a lack of firm evidence. Burr's true intentions still remain unclear to historians, some of whom claim that he intended to take parts of Texas and the Louisiana Purchase for himself. He was acquitted in Marshall’s court of treason, but the trial destroyed his already faltering political career.  (See United States v. Burr).

Pg. 198:  The Constitution (Article I, Section 9, and Article V) protected the importation of slaves until 1808.  Congress then forbade it and in 1820 defined it as piracy, a capital crime. 

Pg. 207:  Marshall, by 1823, owned about a dozen house slaves in Richmond, plus over 130 more slaves on plantations he owned.

Pg. 245:  In July 1832 President Andrew Jackson vetoed the bill extending the Bank of the United States charter.  In the course of his veto message, Jackson assailed Marshall’s opinion in McCulloch for limiting the power of states to tax.  He also seemed to set himself up as a coequal judge of the constitutionality of laws.  “The Congress and the Executive, and the Court must each for itself be guided by its own opinion of the Constitution...The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.”

Pg. 251:  The Bill of Rights.  The Ninth and Tenth Amendments were general statements about the division of rights and powers among the federal and state governments and the people.  The First through the Eighth, by contrast, listed specific prohibitions—no establishment of religion or warrantless searches—and guarantees—freedom of the press, the right to keep and bear arms.  The inclusion of this compendium, according to Marshall, had been a matter of emotional and political house-keeping.  In Marshall’s view, the real bill of rights in the Constitution was not these amendments but the restrictions imposed on Congress and the states in Article I, Section 0 and Section 10.  There habeas corpus was protected from Congress and contracts protected from states; bills of attainder and ex post facto laws were forbidden to both. 

Pg. 254:  Marshall ruled that the Fifth Amendment only applied to the Federal Government when prohibiting taking property without just compensation.  The Bill of Rights would not be applied to the states until the twentieth century, and then only because the Court decided that the Fourteenth Amendment (ratified in 1868), which was meant to guarantee ‘due process of law’ to freed slaves, secured the rights listed in the first eight amendments against the states.

Addenda:  Below is the beginning of a list of historical figures I believe were the most dangerous to our form of government, many who when I was younger I thought were admirable.

President Jackson

Thomas Jefferson