Review of “John Marshall: The Chief Justice Who Saved The Union” by Harlow Giles Unger

Unger takes the interesting approach of illuminating the contributions of John Marshall to the protection and preservation of the Constitution by describing the many ways in which Thomas Jefferson sought to subvert it. This book will educate readers about the actual operations of the early republic, rather than the usual “patriotic” myths fed to students of history. Although revered as a “Founding Father,” Jefferson was in truth often interested more in advancing his own ideas and ambition than in honoring the Constitution.

cover_john_marshall

Marshall’s legacy as the 4th Chief Justice of the Supreme Court was the assurance of “the integrity and eminence of the Constitution and the federal government.” Marshall, who was the longest serving Chief Justice in American history, signed over 1,180 decisions, writing 549 of them. As Unger shows:

In the course of his Supreme Court leadership Marshall stood at the center of the most riveting – and most important – courtroom dramas in the nation’s formative years. Case by case he defined, asserted, and when necessary, invented the authority he and the Court needed to render justice, stabilize the federal government, and preserve the Union and its Constitution.”

Because of Marshall’s efforts, the judiciary became an equal branch of the federal government. But it was not a predetermined outcome. When Jefferson didn’t get his way, he used every means at his disposal to try to vitiate the judiciary. To his chagrin, however, even when he appointed his own men to the bench, they became so impressed with Marshall’s erudition, devotion to the law, and integrity, that one by one, they became Marshall men instead of Jefferson men.

To this day, the decisions written or influenced by Marshall continue to shape the American polity. From his opinion in Marbury v. Madison, in which he established the independence of the federal judiciary, to his insistence in U.S. v. Burr that no one, not even the president, is above the law, Marshall made a lasting and positive imprint on the character of the country. And while Jefferson continued to insist, even when retired, that the federal and state governments represented two independent and equal sovereigns, Marshall, in McCulloch v. Maryland, set forth the precedent that state action may not impede valid constitutional exercises of power by the Federal government. The United States would be a radically different place had it not been for “the great,the good, the wise” John Marshall, as he was described by another famous and well-respected Supreme Court Justice, Joseph Story.

Chief Justice John Marshall

Chief Justice John Marshall

Discussion: One reason I like Unger very much as a historian is that he has always been able to avoid portraying the Founding Fathers in sepia tones with golden halos. He is not loathe to point out, for example, that Jefferson was a vicious man who operated sub rosa through lackeys to destroy the careers and lives of anyone and everyone who disagreed with him. He is not reluctant to provide evidence for how much of the Declaration of Independence was lifted by Jefferson from other writings, such as those of John Locke, or how pusillanimously Jefferson behaved when the fighting broke out in the American Revolution. He also takes Jefferson to task for his treasonous acts against President John Adams when Jefferson himself was serving as Vice President. (This includes the concealment of evidence by Jefferson that would exonerate Adams from charges of impeachment, a movement for which Jefferson was leading the chorus.) And he doesn’t hesitate to speak of Jefferson’s bribes to members of the press to calumniate his opponents; his threats to start a Civil War if he were not elected in 1800; his blatant disdain of the Constitution when it got in the way of what he wanted to do; and his attempts to emasculate the judiciary so that it could not rule against any of his decisions.

Thomas Jefferson by Rembrandt Peale

Thomas Jefferson by Rembrandt Peale

Jefferson largely escapes such a close look at his behavior because of the need for the American narrative to show him as a great man, who joined other great men to create a great nation. Even the recent DNA evidence of Jefferson’s long-time affair with Sally Hemings has been downplayed, and those who acknowledge it are quick to point out Jefferson’s long-standing relationship with her, as if his alleged monogamy would make up for his taking up with a fifteen-year old girl when he was forty-six, a girl who was in his care as a slave, unable not to do his bidding. The entire time she was his mistress, she continued to serve as his slave, in addition to being pregnant almost continuously when he was in town. She was not even freed by his will when he died. But collective memory serves to establish moral, political, and social lessons, and to help form an understanding of who we are as a people. Truth can often fall by the wayside.

Unger, however, has a respect for facts.

He also has a keen eye for those early figures in our history who displayed more character, more nuance, more courage, and more loyalty to the aims of the young country. One of those was John Marshall. This well-written story will keep your attention from beginning to end. Highly recommended!

Rating: 5/5

Published by Da Capo Press, a member of the Perseus Books Group, 2014

November 12, 1816 – Thomas Jefferson Expresses Favor For Crushing Monied Corporations

On this day in history, Thomas Jefferson penned a letter to Tom Logan conveying his fears about the rise of aristocracy in the U.S.:

I hope we shall … crush in [its] birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”

Thomas Jefferson by Rembrandt Peale, 1805

Thomas Jefferson by Rembrandt Peale, 1805

This was not a new theme of Jefferson’s, but it usually was couched in attacks on Alexander Hamilton. Most recently, this quote was cited by Justice John Paul Stevens in concurring in part and dissenting in part in the Opinion of the Court for Citizens United v. Federal Election Comm’n (No. 08-205, decided January 21, 2010). Justice Stevens (who retired on June 29, 2010) employed entertaining sarcasm in noting:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind. While individuals might join together to exercise their speech rights, business corporations, at least, were plainly not seen as facilitating such associational or expressive ends.”

Justice John Paul Stevens

Justice John Paul Stevens

November 4, 1732 – Birthdate of Thomas Johnson

On this day in history, Thomas Johnson was born in Maryland. Johnson was admitted to practice law in 1760, and attended both the first and second meetings of the Continental Congress. He also helped draft the 1775 Maryland Declaration of Rights and later served as Governor of Maryland.

Thomas Johnson

Thomas Johnson

Johnson was appointed to the U.S. Supreme Court in 1791. Johnson had intended to retire from what had been a busy public life because of age and infirmity. But at the request of President George Washington, who was a longtime acquaintance and business partner, Johnson made an attempt at the post of Associate Justice, only to discover shortly that “[t]he office and the man do not fit.” However, while sitting in the Court, he did deliver its first reported decision, Georgia v. Brailsford, 2 U.S. 2 Dall. 402 402 (1792). This case held that “[a] State may sue in the Supreme Court to enjoin payment of a judgment in behalf of a British creditor taken on a debt, which was confiscated by the State, until it can be ascertained to whom the money belongs.”

Johnson resigned less than a year later.

Two later cases also called Georgia v. Brailsford followed this one, Georgia v. Brailsford (1793) 2 U.S. 415, continuing the case of Georgia v. Brailsford (1792), and Georgia v. Brailsford (1794) 3 U.S. 1, involving jury nullification.

August 8, 2009 – The First Hispanic Joins the Supreme Court

On this date, Sonia Sotomayor became the first Hispanic to take the oath of office to the Supreme Court. It was also the first time an oath-taking ceremony at the Court was open to broadcast coverage. Previously, oath-taking ceremonies held at the Court, other than formal investiture ceremonies, were private events and not open to the media.

Sotomayor, of Puerto Rican descent, is also the Court’s 111th justice and its third female justice.

220px-Sonia_Sotomayor_in_SCOTUS_robe

Sotomayor was nominated to the U.S. District Court for the Southern District of New York by President George H. W. Bush in 1991, to the U.S. Court of Appeals for the Second Circuit by President Bill Clinton, and to the U.S. Supreme Court by President Barack Obama, to replace retired Justice David Souter.

July 23, 1936 – Birthdate of Justice Anthony M. Kennedy

On this day in history, Anthony Kennedy was born in Sacramento, California. Kennedy graduated cum laude from Harvard Law School and entered private law practice in California. He befriended many politicians, including Ed Meese, and donated large sums of money to Republican officials in the state. When Meese went to work for Ronald Reagan, Meese recruited Kennedy to help Reagan draft a tax cut plan. Reagan was impressed with Kennedy and recommended him for a vacancy on the U.S. Court of Appeals for the Ninth Circuit, which Kennedy joined in 1975 as the youngest federal judge in the country.

When Supreme Court Justice Lewis Powell retired in 1987, Reagan first nominated Robert Bork, but he failed to win confirmation. Reagan then turned to Douglas Ginsburg, who withdrew himself from consideration after only nine days when allegations leaked concerning his past marijuana use. Reagan, on the advice of Meese, finally turned to Kennedy to fill the vacancy on the Supreme Court. Kennedy’s nomination encountered little resistance and he was unanimously confirmed by the Senate and he took his seat on February 18, 1988.

Justice Anthony Kennedy

Justice Anthony Kennedy

Today, Kennedy is frequently viewed as the Court’s swing vote on social issues and has consequently held special prominence in several politically-charged, highly anticipated 5 to 4 decisions, including the notorious Citizens United v. Federal Election Commission (Docket No. 08-205), for which he delivered the opinion in 2010.

You can access an extensive list of articles about and analyses of the Citizens United decision here.

Supreme Court Revisionism

The New York Times reported recently:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice.”

For example, this past April, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the EPA for seeking cost-benefit authority in a 2001 case. But as the New York Times noted, that “he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.”

After law professors pointed out the mistake, Justice Scalia quickly altered the opinion, revising the text and substituting the heading “Our Precedent.”

Justice Scalia, proponent of "originalism" except in the case of his own opinions

Justice Scalia, proponent of “originalism” except in the case of his own opinions

Now, there is a way to find out quickly and easily when revisions happen. David Zvenyach, General Counsel to the Council of the District of Columbia, recently launched @Scotus_servo, a Twitter account that alerts followers whenever a change is made to a Supreme Court opinion.

The process uses an application written in JavaScript that crawls through the “slip” opinions posted to the Supreme Court website. If the application, which performs a crawl every five minutes, detects a change, it notifies the automated Twitter account, which tweets out an alert. Shortly thereafter, Zvenyach sends out a manual tweet that calls attention to the change. Here is an example:

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Since Zvenyach launched his twitter account, Joshua Tauberer (@JoshData) came up with a way to highlight the changes and he tweets them out in a “before” and “after” format like this example:

Screen Shot 2014-06-14 at 11.39.36 AM

These changes should make interesting complications for legal researchers.

June 14, 1943 – Justice Jackson Fixes A Star in our Constitutional Constellation

On this date, the Supreme Court decided West Virginia State Board of Education v. Barnette (319 U.S. 624).

The Court’s opinion, delivered by Justice Robert H. Jackson, held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school.

It might be noted in addition that up until 1942, many children in America used the “Bellamy salute” to accompany the American Pledge of Allegiance. (Francis Bellamy authored the Pledge, and described the salute shown below to accompany it.) After the Fascists adopted this style of salute, Congress officially adopted the hand-over-heart stance to be used while the Pledge is recited.

American students citing the Pledge with the Bellamy salute

American students citing the Pledge with the Bellamy salute

In West Virginia State Board of Education v. Barnette, Justice Jackson memorably wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Justice Robert H. Jackson

Justice Robert H. Jackson

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