Marshall, John (b. Germantown [now Midland], Va., 24 Sept. 1755; d. Philadelphia, Pa., 6 July 1835; interred New Burying Ground, Richmond, Va.), chief justice, 1801–1835. By common acclaim, John Marshall is “the great Chief Justice,” the single best representative of American constitutional law. His greatness, as Oliver Wendell Holmes noted in 1901, consisted partly in his “being there” during the formative period of the Court's history. But Marshall's conservative‐national ideology fit the formative age perfectly, just as his personality and legal genius exactly suited the duties of chief justice.
President John Adams appointed Marshall to the Court on 20 January 1801, to save the Constitution from the Jeffersonian Republicans. The well‐settled values Marshall brought to his duties were the product of the revolutionary age as refracted through family and place. He was born and grew up in Fauquier County on the north‐western frontier of Virginia, the eldest of fifteen children. Frontier life imparted to Marshall an easygoing, democratic demeanor that was balanced by the conservative values of the privileged class to which he belonged. Marshall's marriage to Betsy Ambler in 1783 further consolidated his membership in polite society and gave him a useful entree into politics and law. They had ten children, six of whom lived to maturity.
The strong love of union that infused his jurisprudence was due mainly to his father's influence and his own experience in the Revolutionary War. Young Marshall received only two years of formal education. Beyond that, his father taught him rudimentary math, deepened his love of English literature, introduced him to black‐stone's
Commentaries on the Laws of England (1765) and most importantly perhaps, kept him abreast of political developments in pre‐Revolutionary Virginia. Father and son were among the first to enlist. As an officer in the Culpepper Minutemen and later in the continental line, Marshall saw action at the battles of Great Bridge, Brandywine, Germantown, and Monmouth Courthouse. Wintering at Valley Forge instilled in him a lifelong hatred of state provincialism and feckless national government. While serving as deputy judge advocate, he met several members of General George
Washington's staff who would later become champions of national union. Marshall's intense patriotism and admiration of Washington can be gleaned from his
Life of George Washington (1805–1807).
Marshall resumed his legal studies in 1780 by briefly attending the law lectures of George Wythe at William and Mary. With little more formal training than that he began legal practice, first in Fauquier County and then in Richmond, where he settled with his wife and family. Neither as lawyer nor as judge was he inclined to blackletter scholarship. He did possess, however, in rare combination, those qualities essential to legal greatness: a capacious, retentive, and quick mind; sharp analytical skills; and a logical prose style that bordered on eloquence. He rose rapidly to the top of the highly competitive Richmond bar, specializing in noncriminal appellate cases. The staple of his practice was British debt cases, but he litigated a wide range of cases in law and equity in state and federal courts. His only case before the Supreme Court, which he lost, was
Ware v. Hylton (1796), which, ironically, he argued on states' rights grounds.
To be a nationalist in Virginia was to be a Federalist and Marshall was both. Serving in Virginia's Council of State (1782–1784) and in the House of Delegates (1782, 1784–1785, 1787–1788, 1795) convinced him as it had James
Madison that state legislators were parochial and incompetent. He made his debut as a nationalist in the Virginia ratifying convention of 1788, where he spoke effectively in defense of federal judicial authority. As a prominent Federalist, he defended Washington's foreign policy and Alexander
Hamilton's domestic program. Proven ability, well‐placed connections, and service to party brought him offers to serve as U.S. attorney general, minister to France, and associate justice of the Supreme Court. He rejected these offers for financial reasons, but he did agree to serve on the so‐called XYZ mission to France, where he distinguished himself for his nationalism, his diplomatic skills, and the effectiveness of his written dispatches to President John Adams. At Washington's behest, he agreed to serve in Congress (1799–1800), where he became the leading spokesman for the moderate Federalism of President Adams. He served briefly but effectively as secretary of state before assuming his duties as chief justice on 5 March 1801.
As chief justice he immediately set out to strengthen the Court by unifying it—a chore made easier by the threats posed by President Thomas
Jefferson and his party who controlled Congress. His most important innovation was to persuade his colleagues to abandon seriatim opinions, thus making it possible for the Court to speak authoritatively in a single voice. Most often in important constitutional questions that voice belonged to Marshall, who sensed intuitively that the function of the Court was to legitimate and educate a people as yet unschooled in constitutional law. His great opinions were expansive constitutional state papers written with grace, eloquence, and authority and rooted in the republican principles of a written and supreme Constitution emanating from a sovereign people.
His first great effort as spokesman for the whole Court was
Marbury v. Madison (1803), which was the opening battle in the struggle for
judicial review over acts of Congress. For a unanimous Court, Marshall ruled that section 13 of the
Judiciary Act of 1789 was void, so far as it extended
original jurisdiction not authorized by
Article III of the Constitution. Contrary to what is often written about the opinion, Marshall did not explicitly claim that the Court was the sole or final interpreter of the Constitution. In fact, not until
Dred Scott v.
Sandford (1857) did the Court strike down another act of Congress.
Marbury was not cited by the Supreme Court itself as the definitive statement on judicial review until the late nineteenth century. Marshall did, however, successfully nullify an act of Congress and in the process grounded judicial authority in the supremacy of a written constitution. By lecturing President Jefferson on the rule of law, he implicitly put forth the Court as the special guardian of that sacred republican principle. Given the political vulnerability of the Court, it was a brilliant victory and a timely one as well. But the real meaning of judicial review—as the power of the Court to expound the text of the Constitution as law—became clear only in cases like
McCulloch v. Maryland (1819) where Marshall upheld the federal statute in question.
If McCulloch is the best example of Marshall's use of judicial review,
Cohens v. Virginia (1821) was his most elaborate defense of it. The case arose when Virginia challenged the appellate authority of the Supreme Court under section 25 of the Judiciary Act of 1789, which gave the Court the right to review federal questions decided by
state courts. Marshall's opinion demonstrated by logic and recourse to fundamental principles that the supremacy of the Constitution and the appellate authority of the Court are inseparable. By ruling that the
Eleventh Amendment was no bar to appellate jurisdiction, he further limited that amendment as a states' rights curb on judicial authority (see
State Sovereignty and States' Rights). The importance of
Cohens is suggested by the fact that John C. Calhoun, who initially supported the decision, developed his theory of nullification in direct refutation of Marshall's argument.25
Another theme running through Marshall's constitutional opinions was
vested rights. As an extensive land speculator he learned firsthand the Lockean principle that property and individual liberty were connected. Experience in state government taught him that the greatest threat to both was state legislation.
Fletcher v. Peck (1810) gave him a chance to address that problem. The question was whether an act passed by the Georgia legislature in 1796 repealing a previous act selling state land to private speculators violated Article I, section 10, which prohibited states from passing laws impairing the obligation of contracts (see
Contracts Clause). Georgia defended the repeal on the grounds that the original grant was induced by bribery and fraud—which it was. But if states could repeal their own grants, innocent buyers could lose their property and massive insecurity would be introduced into the land market. It was a judgment call for Marshall on constitutional as well as policy grounds, because available evidence pointed to the fact that Article I, section 10 seemed intended by the framers to apply to private contracts but not public contracts to which the state itself was a party. In voiding the Georgia rescinding act—the first time a state law had been held in violation of the Constitution—Marshall opted for property rights and market stability. He also chose the Lockean spirit of the age over the letter of the Constitution10
In
Fletcher, Marshall made the Contracts Clause the constitutional shield of property rights against state action; in
Dartmouth College v. Woodward (1819) he closed the circle of protection. In 1816 New Hampshire altered the charter of Dartmouth College, in effect making the private college into a state university. The question was whether the Contracts Clause prevented it from doing so. Marshall ruled that state charters as well as state grants were contracts within the meaning of Article I, section 10. The state could not alter the terms of charters unless, as Justice Joseph
Story pointed out in his concurrence, it had reserved the right to do so in the charter. The decision not only secured private education in America but also promoted the growth of business corporations by providing a stable climate for investment.
Corporations, which had been justified because of their public function and which accordingly had been subject to state control, now became private entities protected by the Constitution.
The chief justice was less successful in his effort to prohibit state bankruptcy legislation via the Contracts Clause. The unsettled constitutional issue was whether the federal authority to pass uniform bankruptcy laws, granted in Article I, section 8, automatically prohibited state action and whether state authority, if it existed, was valid only when applied to future contracts. Marshall's opinion in
Sturges v. Crowninshield (1819), which confronted the issue for the first time, struck down a New York bankruptcy law that applied to contracts made before the law was passed, but it did not resolve the questions of exclusivity and prospective contracts. When in
Ogden v. Saunders (1827) the Court upheld a state bankruptcy law governing prospective contracts, Marshall entered a passionate dissent, denying the prospective‐retrospective distinction altogether. Scholars have concluded that the justices were badly divided in
Sturges and that Marshall had fashioned his opinion to avoid an open split.8
Marshall's thinking about the relationship of law and
capitalism was shaped by an age where agriculture and commerce dominated, where large‐scale manufacturing was in its infancy, and the business cycle yet unknown. Yet his view of law and economics was progressive as his quest for the creation of a national market in
McCulloch v. Maryland (1819) and
Gibbons v. Ogden (1824) indicates. The former construed implied powers to uphold a congressional act creating the Second Bank of the United States; the latter's broad construction of the federal commerce clause prohibited states from passing laws interfering with interstate transportation and the free flow of goods across state lines (see
Commerce Power). Taken with Marshall's effort in
Fletcher and
Dartmouth to provide a stable environment for investment in land and corporate stock, these opinions show the entrepreneurial cast of Marshall's jurisprudence. Jefferson and others accused him of having transformed the Constitution, yet Marshall followed the spirit if not the literal intent of the framers.
The central and most controversial theme in Marshall's decisions concerned
federalism and involved the Court in the effort to brighten the line between state and nation that was so indistinctly drawn in the Constitution. All his leading constitutional opinions, except
Marbury, address this issue, either directly or indirectly, and all of them curb state power: in
Cohens he demolished state judicial claims of finality in constitutional cases; in
Fletcher and
Dartmouth, state legislatures were kept from repudiating their own grants and charters; in McCulloch states were prohibited from taxing federally chartered corporations; in
Gibbons from interfering with interstate commerce. In the process of curbing the states, Marshall created a vast reservoir of congressional power. Thus in McCulloch he read the “necessary and proper” clause of Article I, section 8, so as to establish
implied powers. By his expansive definition of the Commerce Clause in
Gibbons, he established the principle that Congress was supreme within its enumerated powers (though he drew back from the proposition that the mere grant of a power to Congress excluded the states from acting). These opinions not only settled the constitutional question at hand but repudiated the emerging political doctrine of state sovereignty. Here Marshall emphasized the Federalist insistence that the people, not the states, were sovereign, that they established an enduring nation with all the powers necessary to nationhood, and that the Supreme Court was mandated by the people themselves to preserve those powers.
Because Marshall's opinions have been cited so frequently in the nineteenth and twentieth centuries as justifications of federal power, it is tempting to conclude that he was the unrelenting consolidationist that southern states' rights critics accused him of being. In evaluating Marshall's jurisprudence, it must be remembered that the federal regulatory state was a century away. Congress did legislate on tariff, banking, public lands, and internal improvements, and Marshall's opinions authorized congressional action in these areas. But there was almost no federal regulatory legislation in his day. Measured by the governmental practice of his own age, Marshall's theoretical assertions of national authority came mainly as a response to states' rights radicals who wanted to undo the concessions to national authority that they believed had been unwisely agreed to in 1787.
Marshall's constitutional opinions taken as a whole stand as a comprehensive exposition of the Constitution on a par with the
Federalist Papers, on which he drew heavily (see
Federalist, The). Unlike those famous essays, however, Marshall's opinions were the law of the land. They were persuasive because they drew effectively on Revolutionary history, on the political theory of the founders, and on widely accepted sources of legal authority:
natural law, the law of nations, and English
common law. As befit a Court that was making precedents rather than following them, they were written in stately language that was logical, eloquent, and authoritative.
Indeed, because Marshall's constitutional opinions appear so authoritative, it is easy to overestimate their actual impact. In fact, they did not always control events or sometimes even the parties in the suit. Some of Marshall's contract decisions (e.g.,
New Jersey v. Wilson, 1812) went unenforced. Those in the Georgia Indian cases were resisted outright, with the support of the president. More threatening and disheartening to Marshall, however, was the fact that new appointments after 1823 brought states' rights ideology onto the bench itself. Beleaguered from outside by the rising tide of states' rights, challenged from the inside, Marshall was forced to retreat from his doctrinal preferences. In
Willson v. Blackbird Creek Marsh Co. (1829), for example, Marshall drew back from the broad view of congressional power over interstate commerce set forth in
Gibbons. In
Providence Bank v. Billings (1830), he retreated from the spirit if not the letter of
Dartmouth, ruling that the state's power to tax corporations cannot be restricted by implications from the charter but must be specifically stated. There is considerable evidence, too, that he resisted implied charter rights in the
Charles River Bridge case (1837) when it was first argued in 1831.
Occasionally he was able to hold the line, as in his opinion in
Craig v. Missouri (1830) where, in the old nationalist spirit, he invalidated a Missouri law that indirectly legalized state paper money. In
Cherokee Nation v. Georgia (1831) and
Worcester v. Georgia (1832) (see
Cherokee Cases), he struck a blow against states' rights and Jacksonian democracy and for the Indians. But here, as in some of his contract cases, the Court's opponents had the final word. Ironically, Marshall's last constitutional opinion was
Barron v. Baltimore (1833), which conceded control over civil liberties to the states by ruling that the
Bill of Rights applied only to the federal government.
Where the chief justice stood on the
slavery issue is not clear, since no legal challenge to the institution was presented him. As an officer in the American Colonization Society, he was in favor of gradual emancipation. But his support of the proslavery forces at the Virginia Constitutional Convention of 1829–1830, his own experience as a small slaveholder, and his willingness to make pragmatic concessions to states' rights in the period after 1825 suggest that he would have been reluctant to unsettle the institution by judicial decision. It remained a possibility, however, and one readily perceived by Marshall's southern critics, that the broad power he gave Congress might do just that.
Marshall defined for all time the nature of the chief justiceship (see
Chief Justice, Office of the), but his own role in the office varied according to circumstances. His greatest dominance came in the period from 1801 to 1811. From 1811 to 1823, during the Court's most stable and productive period, he increasingly shared power with strong‐minded colleagues like Joseph Story and William
Johnson, sometimes compromising his doctrinal preferences to maintain unity. During his last decade on the Court, he further moderated his style of leadership to fit the new age and the new justices who represented it. He never surrendered his position as leader of the Court, however, even after the onset of illness in 1831. But neither, to his great distress, could he quell the “revolutionary spirit” on the Court, and he died fearing that both it and the Constitution were gone. Modest man that he was, it never occurred to him that he would become the symbol of the living Constitution and the personal embodiment of the Court he loved.
See also
Judicial Power and Jurisdiction;
Judicial Review.
Bibliography
Albert J. Beveridge , The Life of John Marshall, 4 vols. (1916–1919).
Robert K. Faulkner , The Jurisprudence of John Marshall (1968).
George L. Haskins and and Herbert A. Johnson , History of the Supreme Court of the United States, vol. 2, Foundations of Power: John Marshall, 1801–15 (1981).
Charles F. Hobson, ed., The Papers of John Marshall, 6 vols. (1974–).
G. Edward White , John Marshall and the Genesis of the Tradition, in his The American Judicial Tradition (1976).
G. Edward White , History of the Supreme Court of the United States, vols. 3–4, The Marshall Court and Cultural Change, 1815–35 (1988).
R. Kent Newmyer
