September 24, 1755 – Birth of John Marshall, Fourth Chief Justice of U.S. Supreme Court

John Marshall was born in a rural community on the Virginia frontier, in what is now Fauquier County, on September 24, 1755.

His parents decided John was to be a lawyer, and John’s father bought him a copy of William Blackstone’s Commentaries on the Laws of England for John to read and study. After serving in the Continental Army during the American Revolution, Marshall read law under the famous Chancellor of the College of William and Mary, George Wythe; was elected to Phi Beta Kappa; and was admitted to the Virginia Bar in 1780. He was in private practice in Fauquier County before entering politics.

In 1788, Marshall was selected as a delegate to the Virginia convention responsible for ratifying or rejecting the United States Constitution, which had been proposed by the Philadelphia Convention a year earlier. Together with his fellow Virginians James Madison and Edmund Randolph, Marshall led the fight for ratification. He was especially active in defense of Article III, which provides for the Federal judiciary. Marshall identified with the new Federalist Party (which supported a strong national government and commercial interests), and opposed Jefferson’s Republican Party (which advocated states’ rights and idealized the yeoman farmer and the French Revolution).

John Marshall painting from 1797

In 1798, Marshall declined a Supreme Court appointment by President John Adams, recommending Bushrod Washington, who would later become one of Marshall’s staunchest allies on the Court. Instead, Adams named Marshall as Secretary of State.

Adams and the Federalists were defeated in the presidential election of 1800, but the President and the lame duck Congress passed what came to be known as the Midnight Judges Act, which made sweeping changes to the federal judiciary, including a reduction in the number of Justices from six to five (upon the next vacancy in the court) so as to deny Jefferson an appointment until two vacancies occurred. In addition, since the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams nominated Marshall. Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31, 1801. President John Adams offered this appraisal of Marshall’s impact: “My gift of John Marshall to the people of the United States was the proudest act of my life.”

Marshall served as Chief Justice during the administrations of six Presidents: John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson. He helped to establish the Supreme Court as the final authority on the meaning of the Constitution in cases and controversies that must be decided by the federal courts. According to the Oyez Project, Marshall’s impact on constitutional law is without peer, and his imprint on the Court’s jurisprudence remains indelible.

In the excellent book 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.

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.

John marshall painting 1828

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.

Daguerreotype of Supreme Court justice Joseph Story, 1844

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 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

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

John Marshall by Henry Inman, 1832