John Marshall and the Creation of a National Government

Abstract

John Marshall and the Creation of a National Government MICHAEL W. MCCONNELL At the beginning ofthe twenty-first century, 200 years after his appointment to the Supreme Court ofthe United States, John Marshall is an iconic figure. Albert Beveridge, his first great bi­ ographer, observed: “He has become akind ofmythical being, endowed with virtues and wisdom not ofthis earth. He appears to us as a gigantic figure looming, indistinctly, out ofthe mists ofthe past.”1 He holds special meaning for us who are lawyers, judges, and students of the law. He is ourFounder. Formany ofus, he is ourhero. He is the one who showedthat law—no less than war, legislation, administration, or popular leadership—is central to the creation ofa national govern­ ment, and even to the creation of a people. I doubt there is a judge—or wannabe judge—in the country who does not, in some way, try to take John Marshall as his model. In his day, Marshall was regarded as a champion of conservative values. He dis­ trusted direct democracy and favored checks and balances against democratic excess. He protected vested rights against the incursions of populist legislatures. He also stood up for civil liberties—as in his opposition to the Alien and Sedition acts—and saw no funda­ mental difference between civil rights and property rights. He was sharply critical of the French Revolution. He favored strong central government, a strong executive, an independ­ ent judiciary shielded from popular opinion, and a strong military. His jurisprudence bore striking similarity to the political program of the Whig Party of John Quincy Adams and Henry Clay—which, not surprisingly, infuri­ ated their politically more successful oppo­ nents, the Jeffersonian Republicans and the Jacksonian Democrats. Yet despite this background, today he is claimed and admired by people across the po­ litical spectrum. For example, take a look at the Web page of the American Constitution Society. This is a new—and quite welcome— organization of law students and lawyers that hopes to become the left-wing counterweight to the Federalist Society. According to its Web 274 JOURNAL OF SUPREME COURT HISTORY page, its goal is to counter what it calls the “dominant” conservative vision of law that “pervades” academic scholarship, judicial in­ terpretation, and legislative and executive de­ cisionmaking. Yet John Marshall, the pillar of the Federalist-Whig conservative establish­ ment in his day, is at the top of its list of Su­ preme Court Justices who “embody” its anti­ conservativejurisprudential ideals.2 In his own time, Marshall did not enjoy such universal esteem. It is difficult to appre­ ciate his greatness unless we understand why he was controversial as well as why he was admired. In his day, Marshall was excoriated for his conservative politics, for his antipopu­ list view of the judicial function, for his na­ tionalism, and above all for his ability to dis­ guise his supposedly partisan purposes behind a beguiling screen of legalism. No less a figure than Thomas Jefferson complained that “the state has suffered long enough ... from the want of any counterpoise to the rancorous hatred which Marshal [sic] bears to the government of his country, and from the cunning and sophistry within which he is able to enshroud himself.”3 To John Tyler, Jefferson wrote that in Marshall’s hands, “the law is nothing more than an am­ biguous text, to be explained by his sophistry into any meaning which may subserve his per­ sonal malice.”4 There were two basic themes ofJeffersonian’s attack: (1) that Marshall pro­ moted a movement toward consolidated gov­ ernment at the expense of state authority, and (2) that he promoted the power of unelected and unaccountable courts at the expense of elected officials. Thus, in a letter to former Secretary of the Treasury Albert Gallatin in 1820, Jefferson complained that “the steady tenor” of the Court has been to “break down the constitutional barriers between the co­ ordinate powers of the States and of the Union.”5 To another associate, Jefferson de­ scribed the judiciary under Marshall as a “subtle corps of sappers and miners con­ stantly working underground to undermine the foundations of our confederated fabric.”6 Combining the issues of federal...