John Marshall

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John Marshall
John Marshall by Henry Inman, 1832.jpg
4th Chief Justice of the Supreme Court
In office
January 31, 1801[1] – July 6, 1835
Appointed by John Adams
Preceded by Oliver Ellsworth
Succeeded by Roger Taney
4th United States Secretary of State
In office
June 13, 1800 – March 4, 1801
President John Adams
Preceded by Timothy Pickering
Succeeded by James Madison
Member of the U.S. House of Representatives
from Virginia's 13th district
In office
March 4, 1799 – June 7, 1800
Preceded by John Clopton
Succeeded by Littleton Tazewell
Personal details
Born John Marshall
(1755-09-24)September 24, 1755
Germantown, Virginia, British America
Died July 6, 1835(1835-07-06) (aged 79)
Philadelphia, Pennsylvania, U.S.
Political party Federalist
Spouse(s) Mary Willis Ambler
Relations 14 siblings
Children
  • Hon. Thomas Marshall
  • Rebecca Marshall
  • Dr. Jaquelin Ambler Marshall
  • Mary Ann Marshall
  • John James Marshall
  • Mary Marshall
  • John Marshall
  • James Keith Marshall
  • Charles William Marshall
  • Edward Carrington Marshall
[2]
Alma mater College of William and Mary
Religion Episcopalian
Parents
Signature
Military service
Allegiance  United States
Service/branch Culpeper Minutemen
Rank Captain
Battles/wars American Revolutionary War

John Marshall (September 24, 1755 – July 6, 1835) was the fourth Chief Justice of the Supreme Court of the United States (1801–1835). His court opinions helped lay the basis for United States constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches. Previously, Marshall had been a leader of the Federalist Party in Virginia and served in the United States House of Representatives from 1799 to 1800. He was Secretary of State under President John Adams from 1800 to 1801.

The longest-serving Chief Justice and the fourth longest-serving justice in U.S. Supreme Court history, Marshall dominated the Court for over three decades and played a significant role in the development of the American legal system. Most notably, he reinforced the principle that federal courts are obligated to exercise judicial review, by disregarding purported laws if they violate the Constitution. Thus, Marshall cemented the position of the American judiciary as an independent and influential branch of government. Furthermore, Marshall's court made several important decisions relating to federalism, affecting the balance of power between the federal government and the states during the early years of the republic. In particular, he repeatedly confirmed the supremacy of federal law over state law, and supported an expansive reading of the enumerated powers.

Some of his decisions were unpopular. Nevertheless, Marshall built up the third branch of the federal government, and augmented federal power in the name of the Constitution, and the rule of law.[3] Marshall, along with Daniel Webster (who argued some of the cases), was the leading Federalist of the day, pursuing Federalist Party approaches to build a stronger federal government over the opposition of the Jeffersonian Republicans, who wanted stronger state governments.[4]

Early years (1755 to 1782)[edit]

John Marshall was born in a log cabin close to Germantown, a rural community on the Virginia frontier, in what is now Fauquier County, near Midland, on September 24, 1755, to Thomas Marshall and Mary Isham Keith, the granddaughter of Thomas Randolph of Tuckahoe.[5] The oldest of fifteen, John had eight sisters and six brothers. Also, several cousins were raised with the family.[6] From a young age, he was noted for his good humor and black eyes, which were "strong and penetrating, beaming with intelligence and good nature".[7]

Thomas Marshall was employed in Fauquier County as a surveyor and land agent by Lord Fairfax, which provided Marshall with a substantial income.[8]

In the early 1760s, the Marshall family left Germantown and moved about 30 miles (48 km) miles to Leeds Manor (so named by Lord Fairfax) on the eastern slope of the Blue Ridge Mountains. On the banks of Goose Creek, Thomas Marshall built a simple wooden cabin, much like the one they left in Germantown, with two rooms on the first floor and a two-room loft above. Thomas Marshall was not yet well established, so he leased it from Colonel Richard Henry Lee. The Marshalls called their new home "the Hollow", and the ten years they resided there were John Marshall's formative years.

In 1773, the Marshall family moved once again. Thomas Marshall, by then a man of substantial means, purchased an estate adjacent to North Cobbler Mountain in Delaplane. The new farm was located adjacent to the main stage road (now US 17) between Salem (the modern day village of Marshall, Virginia) and Delaplane. When John was 17, Thomas Marshall built Oak Hill there, a seven-room frame home with four rooms on the first floor and three above. Although modest in comparison to the estates of George Washington, James Madison, and Thomas Jefferson,[9] it was a substantial home for the period. John Marshall became the owner of Oak Hill in 1785 when his father moved to Kentucky. Although John Marshall lived his later life in Richmond, Virginia, and Washington D.C., he kept his Fauquier County property, making improvements and using it as a retreat until his death.

Marshall's early education was superintended by his father who gave him an early taste for history and poetry. Thomas Marshall's employer, Lord Fairfax, allowed access to his home at Greenway Court, which was an exceptional center of learning and culture. Marshall took advantage of the resources at Greenway Court and borrowed freely from the extensive collection of classical and contemporary literature. There were no schools in the region at the time, so home schooling was pursued. Although books were a rarity for most in the territory, Thomas Marshall's library was exceptional. His collection of literature, some of which was borrowed from Lord Fairfax, was relatively substantial and included works by the ancient Roman historian Livy, the ancient Roman poet Horace, and the English writers Alexander Pope, John Dryden, John Milton, and William Shakespeare. All of the Marshall children were accomplished, literate, and self-educated under their parents' supervision. At the age of twelve John had transcribed Alexander Pope's An Essay on Man and some of his Moral Essays.

There being no formal school in Fauquier County at the time, John was sent, at age fourteen, about one hundred miles from home to an academy in Washington parish. Among his classmates was James Monroe, the future president. John remained at the academy one year, after which he was brought home. Afterward, Thomas Marshall arranged for a minister to be sent who could double as a teacher for the local children. The Reverend James Thomson, a recently ordained deacon from Glasgow, Scotland, resided with the Marshall family and tutored the children in Latin in return for his room and board. When Thomson left at the end of the year, John had begun reading and transcribing Horace and Livy.[10]

The Marshalls had long before decided that John was to be a lawyer. William Blackstone's Commentaries on the Laws of England had been published in America and Thomas Marshall bought a copy for his own use and for John to read and study. After John returned home from Campbell's academy he continued his studies with no other aid than his dictionary. John's father superintended the English part of his education. Marshall wrote of his father, "... and to his care I am indebted for anything valuable which I may have acquired in my youth. He was my only intelligent companion; and was both a watchful parent and an affectionate friend".[11]

Marshall served in the Continental Army during the American Revolutionary War and was friends with George Washington. He served first as a Lieutenant in the Culpeper Minutemen from 1775 to 1776, and went on to serve as a Lieutenant and then a Captain in the Eleventh Virginia Continental Regiment from 1776 to 1780.[12][13] During his time in the army, he enjoyed running races with the other soldiers and was nicknamed Silverheels for the white heels his mother had sewn into his stockings.[14] Marshall endured the brutal winter conditions at Valley Forge (1777–1778).[13] After his time in the Army, he read law under the famous Chancellor George Wythe in Williamsburg, Virginia, at the College of William and Mary, was elected to Phi Beta Kappa and was admitted to the Bar in 1780. He was in private practice in Fauquier County before entering politics.[15]

Political career (1782 to 1801)[edit]

In 1782, Marshall won a seat in the Virginia House of Delegates, in which he served until 1789 and again from 1795 to 1796. The Virginia General Assembly elected him to serve on the Council of State later in the same year. In 1785, Marshall took up the additional office of Recorder of the Richmond City Hustings Court.[16]

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 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. His most prominent opponent at the ratification convention was Anti-Federalist leader Patrick Henry. Ultimately, the convention approved the Constitution by a vote of 89-79. 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).[17]

Meanwhile, Marshall's private law practice continued to flourish. He successfully represented the heirs of Lord Fairfax in Hite v. Fairfax (1786), an important Virginia Supreme Court case involving a large tract of land in the Northern Neck of Virginia. In 1796, he appeared before the United States Supreme Court in another important case, Ware v. Hylton, a case involving the validity of a Virginia law providing for the confiscation of debts owed to British subjects. Marshall argued that the law was a legitimate exercise of the state's power; however, the Supreme Court ruled against him, holding that the Treaty of Paris in combination with the Supremacy Clause of the Constitution required the collection of such debts.[18][19]

Henry Flanders in his biography of Marshall remarked that Marshall's argument in Ware v. Hylton "elicited great admiration at the time of its delivery, and enlarged the circle of his reputation." Flanders also wrote that the reader "cannot fail to be impressed with the vigor, rigorous analysis, and close reasoning that mark every sentence of it."[20][21]

In 1795, Marshall declined Washington's offer of Attorney General of the United States and, in 1796, declined to serve as minister to France. In 1797, he accepted when President John Adams appointed him to a three-member commission to represent the United States in France. (The other members of this commission were Charles Cotesworth Pinckney and Elbridge Gerry.) However, when the envoys arrived, the French refused to conduct diplomatic negotiations unless the United States paid enormous bribes. This diplomatic scandal became known as the XYZ Affair, inflaming anti-French opinion in the United States. Hostility increased even further when the French Foreign Minister Talleyrand refused to negotiate with Marshall and Pinckney, prompting their departure from France in April 1798. Marshall's handling of the affair, as well as public resentment toward the French, made him popular with the American public when he returned to the United States.

In 1798, Marshall declined a Supreme Court appointment, recommending Bushrod Washington, who would later become one of Marshall's staunchest allies on the Court.[22] In 1799, Marshall reluctantly ran for a seat in the United States House of Representatives. Although his congressional district (which included the city of Richmond) favored the Democratic-Republican Party, Marshall won the race, in part due to his conduct during the XYZ Affair and in part due to the support of Patrick Henry. His most notable speech was related to the case of Thomas Nash (alias Jonathan Robbins), whom the government had extradited to Great Britain on charges of murder. Marshall defended the government's actions, arguing that nothing in the Constitution prevents the United States from extraditing one of its citizens.[23]

On May 7, 1799, President Adams nominated Congressman Marshall as Secretary of War. However, on May 12, Adams withdrew the nomination, instead naming him Secretary of State, as a replacement for Timothy Pickering. Confirmed by the United States Senate on May 13, Marshall took office on June 6, 1800. As Secretary of State, Marshall directed the negotiation of the Convention of 1800, which ended the Quasi-War with France and brought peace to the new nation.[24]

Chief Justice (1801 to 1835)[edit]

Marshall served as Chief Justice during all or part of the administrations of six Presidents: John Adams, Thomas Jefferson, James Madison, James Monroe, John Quincy Adams and Andrew Jackson. He remained a stalwart advocate of Federalism and a nemesis of the Jeffersonian school of government throughout its heyday. He participated in over 1000 decisions, writing 519 of the opinions himself.[25][26] While Chief Justice, he was elected a Fellow of the American Academy of Arts and Sciences in 1804.[27]

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.[28] His impact on constitutional law is without peer, and his imprint on the Court's jurisprudence remains indelible.[29]

Nomination[edit]

Marshall's Chief Justice nomination

Marshall was thrust into the office of Chief Justice in the wake of the presidential election of 1800. With the Federalists soundly defeated and about to lose both the executive and legislative branches to Jefferson and the Democratic-Republicans, President Adams 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 so as to deny Jefferson an appointment until two vacancies occurred.[30] As the incumbent Chief Justice Oliver Ellsworth was in poor health, Adams first offered the seat to ex-Chief Justice John Jay, who declined on the grounds that the Court lacked "energy, weight, and dignity."[31] Jay's letter arrived on January 20, 1801, and as there was precious little time left, Adams surprised Marshall, who was with him at the time and able to accept the nomination immediately.[32] The Senate at first delayed, hoping that Adams would make a different choice, such as promoting Justice William Paterson of New Jersey. According to New Jersey Senator Jonathan Dayton, the Senate finally relented "lest another not so qualified, and more disgusting to the Bench, should be substituted, and because it appeared that this gentleman [Marshall] was not privy to his own nomination".[33] Marshall was confirmed by the Senate on January 27, 1801, and received his commission on January 31, 1801. While Marshall officially took office on February 4, at the request of the President he continued to serve as Secretary of State until Adams' term expired on March 4.[34] 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."[35]

Unified majority opinions[edit]

Soon after becoming Chief Justice, Marshall changed the manner in which the Supreme Court announced its decisions. Previously, each Justice would author a separate opinion (known as a seriatim opinion) as is still done in the 20th and 21st centuries in such jurisdictions as the United Kingdom and Australia. Under Marshall, however, the Supreme Court adopted the practice of handing down a single opinion of the Court, allowing it to present a clear rule.[36] As Marshall was almost always the author of this opinion, he essentially became the Court's sole spokesman in important cases.

Personality, principles and leadership[edit]

Marshall's forceful personality allowed him to steer his fellow Justices; only once did he find himself on the losing side in a constitutional case.[22] In that case—Ogden v. Saunders in 1827—Marshall set forth his general principles of constitutional interpretation:[37]

To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers—is to repeat what has been already said more at large, and is all that can be necessary.

In his Ogden dissent, Marshall also adopted a definition of the word "law" that would later be denounced by the individualist anarchist Lysander Spooner: "a rule of civil conduct prescribed by the supreme power in a State."[38][39] Marshall was in the dissenting minority only eight times throughout his tenure at the Court, partly because of his influence over the associate justices. As Oliver Wolcott observed when both he and Marshall served in the Adams administration, Marshall had the knack of "putting his own ideas into the minds of others, unconsciously to them".[40] However, he regularly curbed his own viewpoints, preferring to arrive at decisions by consensus.[41] He adjusted his role to accommodate other members of the court as they developed.

Steel engraving of John Marshall by Alonzo Chappel

Marshall had charm, humor, a quick intelligence, and the ability to bring men together. His sincerity and presence commanded attention. His opinions were workmanlike but not especially eloquent or subtle. His influence on learned men of the law came from the charismatic force of his personality, and his ability to seize upon the key elements of a case and make highly persuasive arguments. Together with his vision of the future greatness of the nation, these qualities are apparent in his historic decisions and gave him the sobriquet, The Great Chief Justice.[42][43][44]

Marshall ran a congenial court; there was seldom any bickering. The Court met in Washington only two months a year, from the first Monday in February through the second or third week in March. Six months of the year the justices were doing circuit duty in the various states. Marshall was therefore based in Richmond, his hometown, for most of the year. When the Court was in session in Washington, the justices boarded together in the same rooming house, avoided outside socializing, and discussed each case intently among themselves. Decisions were quickly made usually in a matter of days. Marshall wrote nearly half the decisions during his 33 years in office. Lawyers appearing before the court, including the most brilliant in the United States, typically gave oral arguments and often did not present written briefs. The justices did not have clerks, so they listened closely to the oral arguments, and decided among themselves what the decision should be. The court issued only one decision; the occasional dissenter usually did not issue a separate opinion.[45]

While Marshall was very good at listening to the oral briefs, and convincing the other justices of his interpretation of the law, he was not widely read in the law, and seldom cited precedents. After the Court came to a decision, he would usually write it up himself. Often he asked Justice Joseph Story, a renowned legal scholar, to do the chores of locating the precedents, saying, "There, Story; that is the law of this case; now go and find the authorities."[46]

Impact[edit]

The three previous chief justices (John Jay, John Rutledge, and Oliver Ellsworth) had left little permanent mark beyond setting up the forms of office. The Supreme Court, like many state supreme courts, was a minor organ of government. In his 34-year tenure, Marshall gave it the energy, weight, and dignity of a third co-equal branch. With his associate justices, especially Joseph Story, William Johnson, and Bushrod Washington, Marshall's Court brought to life the constitutional standards of the new nation.[citation needed]

Marshall used Federalist approaches to build a strong federal government over the opposition of the Jeffersonian Democrats, who wanted stronger state governments.[4] His influential rulings reshaped American government, making the Supreme Court the final arbiter of constitutional interpretation. The Marshall Court struck down an act of Congress in only one case (Marbury v. Madison in 1803) but that established the Court as a center of power that could overrule the Congress, the President, the states, and all lower courts if that is what a fair reading of the Constitution required. He also defended the legal rights of corporations by tying them to the individual rights of the stockholders, thereby ensuring that corporations have the same level of protection for their property as individuals had, and shielding corporations against intrusive state governments.[47]

Marbury v. Madison[edit]

Marbury v. Madison (1803) was the first important case before Marshall's Court. In that case, the Supreme Court invalidated a provision of the Judiciary Act of 1789 on the grounds that it violated the Constitution by attempting to expand the original jurisdiction of the Supreme Court. Marbury was the first and only case in which the Marshall Court ruled an act of Congress unconstitutional, and thereby reinforced the doctrine of judicial review. Thus, although the Court indicated that the Jefferson administration was violating another law, the Court said it could not do anything about it due to its own lack of jurisdiction. President Thomas Jefferson took the position that the Court could not give him a mandamus (i.e. an order) even if the Court had jurisdiction:

In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed, it is in posse only, but not in esse, and I withheld delivery of the commissions. They cannot issue a mandamus to the President or legislature, or to any of their officers.[48]

More generally, Jefferson lamented that allowing the Constitution to mean whatever the Court says it means would make the Constitution "a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."[48]

Because Marbury v. Madison decided that a jurisdictional statute passed by Congress was unconstitutional, that was technically a victory for the Jefferson administration (so it could not easily complain). Ironically what was unconstitutional was Congress' granting a certain power to the Supreme Court itself. The case allowed Marshall to proclaim the doctrine of judicial review, which reserves to the Supreme Court final authority to judge whether or not actions of the president or of the congress are within the powers granted to them by the Constitution. The Constitution itself is the supreme law, and when the Court believes that a specific law or action is in violation of it, the Court must uphold the Constitution and set aside that other law or action, assuming that a party has standing to properly invoke the Court's jurisdiction. Chief Justice Marshall famously put the matter this way:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

The Constitution does not explicitly give judicial review to the Court, and Jefferson was very angry with Marshall's position, for he wanted the President to decide whether his acts were constitutional or not. Historians mostly agree that the framers of the Constitution did plan for the Supreme Court to have some sort of judicial review; what Marshall did was make operational their goals.[49] Judicial review was not new and Marshall himself mentioned it in the Virginia ratifying convention of 1788. Marshall's opinion expressed and fixed in the American tradition and legal system a more basic theory—government under law. That is, judicial review means a government in which no person (not even the President) and no institution (not even Congress or the Supreme Court itself), nor even a majority of voters, may freely work their will in violation of the written Constitution. Marshall himself never declared another law of Congress or act of a president unconstitutional.

Marshall, during "Marbury v. Madison" on the constitution:

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the Constitution is void." [50]

Burr conspiracy trial[edit]

The Burr trial (1807) was presided over by Marshall together with Judge Cyrus Griffin. This was the great state trial of former Vice President Aaron Burr, who was charged with treason and high misdemeanor. Prior to the trial, President Jefferson condemned Burr and strongly supported conviction. Marshall, however, narrowly construed the definition of treason provided in Article III of the Constitution; he noted that the prosecution had failed to prove that Burr had committed an "overt act", as the Constitution required. As a result, the jury acquitted the defendant, leading to increased animosity between the President and the Chief Justice.[51]

Fletcher v. Peck[edit]

Fletcher v. Peck (1810) was the first case in which the Supreme Court ruled a state law unconstitutional, though the Court had long before voided a state law as conflicting with the combination of the Constitution together with a treaty (Marshall had represented the losing side in that 1796 case).[19] In Fletcher, the Georgia legislature had approved a land grant, known as the Yazoo Land Act of 1795. It was then revealed that the land grant had been approved in return for bribes, and therefore voters rejected most of the incumbents; the next legislature repealed the law and voided all subsequent transactions (even honest ones) that resulted from the Yazoo land scandal. The Marshall Court held that the state legislature's repeal of the law was void because the sale was a binding contract, which according to Article I, Section 10, Clause I (the Contract Clause) of the Constitution, cannot be invalidated. Marshall emphasized that the rescinding act would seize property from individuals who had honestly acquired it, and transfer that property to the public without any compensation. He then expanded upon his own famous statement in Marbury about the province of the judiciary:

It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.

Based on this separation of powers principle,[52] Marshall questioned whether the rescinding act would be valid even if Georgia were a completely sovereign state independent of the federal Constitution. Ultimately, though, Marshall grounded the Court's opinion in the restrictions imposed by the federal Constitution. As in Marbury, this decision of the Court in Fletcher was unanimous.

McCulloch v. Maryland[edit]

The text of the McCulloch v. Maryland decision, handed down March 6, 1819, as recorded in the minutes of the Supreme Court of the United States.

McCulloch v. Maryland (1819) was one of several decisions during the 1810s and 1820s involving the balance of power between the federal government and the states where Marshall affirmed federal supremacy. He established in McCulloch that states could not tax federal institutions, and upheld congressional authority to create the Second Bank of the United States, even though the authority to do this was not expressly stated in the Constitution.

While Marshall's opinion in McCulloch was consistent with Marbury v. Madison, it cut the other way by affirming the constitutionality of a federal statute while preventing states from passing laws that violate federal law. The opinion includes the famous statement, "We must never forget that it is a constitution we are expounding." Marshall laid down the basic theory of implied powers under a written Constitution; intended, as he said "to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs ...." Marshall envisaged a federal government which, although governed by timeless principles, possessed the powers "on which the welfare of a nation essentially depends." It would be free in its choice of means, and open to change and growth.[53]

The Court held that the bank was authorized by the clause of the Constitution that states that Congress can implement its powers by making laws that are "necessary and proper", which Marshall said does not refer to one single way that Congress is allowed to act, but rather refers to various possible acts that implement all constitutionally established powers. Marshall famously provided the following time-honored interpretation of this clause in the Constitution:[54]

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

According to The New York Times, "Marshall did not intend his words as license for Congress to do whatever it wishes."[54] Instead, Marshall and the Court deemed the bank necessary and proper because it furthered various legitimate ends that are listed in the Constitution, such as regulating interstate commerce.

Cohens v. Virginia[edit]

Cohens v. Virginia (1821) displayed Marshall's nationalism as he enforced the supremacy of federal law over state law, under the Supremacy Clause of the Constitution. In this case, he established that the Federal judiciary could hear appeals from decisions of state courts in criminal cases as well as the civil cases over which the court had asserted jurisdiction in Martin v. Hunter's Lessee (1816). Justices Bushrod Washington and Joseph Story proved to be his strongest allies in these cases.

Like Marbury, this Cohens case was largely about the jurisdiction of the Supreme Court. The State of Virginia claimed that the Court had no jurisdiction to hear appeals from a state court in a case between a state and its own citizens, even if the case involved interpretation of a federal statute. Marshall wrote that his court did have appellate jurisdiction, but then went on to affirm the decision of the Virginia Supreme Court on the merits. Marshall wrote:

We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.

In Marshall's day, the Court had not yet been given the discretion whether or not to take cases.[55] Scholars such as Edward Hartnett contend that the Court's discretionary certiorari practice undercuts the rationale that Chief Justice Marshall gave in the Cohens case for reviewing the validity of state law, which was that the Court had no choice in the matter.[56]

The decision in Cohens demonstrated that the federal judiciary can act directly on private parties and state officials, and has the power to declare and impose on the states the Constitution and federal laws, but Marshall stressed that federal laws have limits. For example, he said, "Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the States."

In this case, the Court affirmed that the Virginia Supreme Court correctly interpreted a federal statute that had established a lottery in Washington D.C. Like the Jefferson administration in Marbury, the State of Virginia technically won this case even though the case set a precedent consolidating the power of the Court.

Gibbons v. Ogden[edit]

Gibbons v. Ogden (1824) overturned a monopoly granted by the New York state legislature to certain steamships operating between New York and New Jersey. Daniel Webster argued that the Constitution, by empowering Congress to regulate interstate commerce, implied that states do not have any concurrent power to regulate interstate commerce.[57] Chief Justice Marshall avoided that issue about the exclusivity of the federal commerce power because that issue was not necessary to decide the case. Instead, Marshall relied on an actual, existing federal statute for licensing ships, and he held that that federal law was a legitimate exercise of the congressional power to regulate interstate commerce, so the federal law superseded the state law granting the monopoly.

Webster was at that time a member of Congress, but nevertheless pressed his constitutional views on behalf of clients.[57] After he won this case, he bragged that Marshall absorbed his arguments "as a baby takes in his mother's milk", even though Marshall had actually dismissed Webster's main argument.[57]

In the course of his opinion in this case, Marshall began the careful work of determining what the phrase "commerce...among the several states" means in the Constitution. He stressed that one must look at whether the commerce in question has wide-ranging effects, suggesting that commerce which does "affect other states" may be interstate commerce, even if it does not cross state lines. Of course, the steamboats in this case did cross a state line, but Marshall suggested that his opinion had a broader scope than that. Indeed, Marshall's opinion in Gibbons would be cited by the Supreme Court much later when it upheld aspects of the New Deal in cases like Wickard v. Filburn in 1942. But, the opinion in Gibbons can also be read more narrowly.[58] After all, Marshall also wrote:

The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a state.....Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are....subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.

The immediate impact of the historic decision in Gibbons was to end many state-granted monopolies. That in turn lowered prices and promoted free enterprise.

Other key cases[edit]

Marshall wrote several other important Supreme Court opinions, including the following.

The Dartmouth College case

In Dartmouth College v. Woodward, 17 U.S. 518 (1819), the legal structure of modern corporations began to develop, when the Court held that private corporate charters are protected from state interference by the Contract Clause of the Constitution.

Johnson v. M'Intosh

In Johnson v. M'Intosh, 21 U.S. 543 (1823), the Court held that private American citizens could not purchase tribal lands directly from Native Americans (then called "Indians"). Instead, only the government could do so, and then private citizens could purchase from the government.

Worcester v. Georgia

In Worcester v. Georgia, 31 U.S. 515 (1832), a Georgia criminal statute, which prohibited non-Indians from being present on Indian lands without a license from the state, was held unconstitutional, because the federal government has exclusive authority in such matters. It is often said that, in response to the decision, President Andrew Jackson said something to the effect of: "John Marshall has made his decision; now let him enforce it!" More reputable sources recognize this as a false quotation.[59] In fact, the ruling in Worcester ordered nothing more than that Samuel Worcester be freed; Georgia complied after several months.

Barron v. Baltimore

In Barron v. Baltimore, 32 U.S. 243 (1833), the Court held that the Bill of Rights was intended to apply only against the federal government, and therefore does not apply against the states. The courts have since incorporated most of the Bill of Rights with respect to the States through the Fourteenth Amendment to the United States Constitution, which was adopted 33 years after Marshall's death.

Authorship of Washington biography[edit]

Marshall greatly admired George Washington, and between 1804 and 1807 published an influential five-volume biography.[60] Marshall's Life of Washington was based on records and papers provided to him by the late president's family. The first volume was reissued in 1824 separately as A History of the American Colonies.[61] The work reflected Marshall's Federalist principles. His revised and condensed two-volume Life of Washington was published in 1832.[62] Historians have often praised its accuracy and well-reasoned judgments, while noting his frequent paraphrases of published sources such as William Gordon's 1801 history of the Revolution and the British Annual Register.[63] After completing the revision to his biography of Washington, Marshall prepared an abridgment. In 1833 he wrote, "I have at length completed an abridgment of the Life of Washington for the use of schools. I have endeavored to compress it as much as possible. ... After striking out every thing which in my judgment could be properly excluded the volume will contain at least 400 pages."[64] The Abridgment was not published until 1838, three years after Marshall died.[65]

Other work, later life, legacy[edit]

Marshall loved his home, built in 1790, in Richmond, Virginia,[66] and spent as much time there as possible in quiet contentment.[67][68] While in Richmond he attended St. John's Church in Church Hill until 1814 when he led the movement to hire Robert Mills as architect of Monumental Church, which commemorated the death of 72 people in a theatre fire. The Marshall family occupied pew No. 23 at Monumental Church and entertained the Marquis de Lafayette there during his visit to Richmond in 1824. Marshall himself was not religious and never joined a church; he did not believe Jesus was a divine being, [69] and in some of his opinions referred to a deist "Creator of all things." For approximately three months each year, he would be away in Washington for the Court's annual term; he would also be away for several weeks to serve on the circuit court in Raleigh, North Carolina. He maintained the D. S. Tavern property from 1810-1813.[70]

In 1823, he became first president of the Richmond branch of the American Colonization Society, which was dedicated to resettling freed American slaves in Liberia, on the West coast of Africa. In 1828, he presided over a convention to promote internal improvements in Virginia.

Hans Kelsen was among the strongest supporters of Marshall's doctrine of judicial review along with John Hart Ely and Ronald Dworkin in the 20th century.

In 1829, he was a delegate to the state constitutional convention, where he was again joined by fellow American statesman and loyal Virginians, James Madison and James Monroe, although all were quite old by that time (Madison was 78, Monroe 71, and Marshall 74). Marshall mainly spoke at this convention to promote the necessity of an independent judiciary.

In 1831, the 76-year-old Marshall underwent an operation to remove bladder stones and recovered from it without complications. But his wife died at the end of the year and his health quickly declined from that point onward. In June 1835, he traveled to Philadelphia, Pennsylvania for medical treatment, where he died on July 6 at the age of 79, having served as Chief Justice for over 34 years.[71]

Two days before his death, he enjoined his friends to place only a plain slab over his and his wife's graves, and he wrote the simple inscription himself. His body, which was taken to Richmond, lies in Shockoe Hill Cemetery in a well kept grave.[72][73] The memorial inscription on his tombstone reads as follows: "Son of Thomas and Mary Marshall/was born September 24, 1755/Intermarried with Mary Willis Ambler/the 3rd of January 1783/Departed this life/the 6th day of July 1835."

Marshall was one of the last surviving Founding Fathers; among the few statesmen of the founding generation who survived him were James Madison, Aaron Burr, and Paine Wingate. He was also the last surviving Cabinet member from the John Adams administration. Some of the papers of John Marshall are held by the Special Collections Research Center at the College of William & Mary.[74]

The legacy on Marshall has had an active history of commentary concerning especially his contributions to the theory and practice of judicial review. Among his strongest followers in the European tradition has been Hans Kelsen for the inclusion of the principle of judicial review in the constitutions of both Czechoslovakia and Austria. In her recent book on Hans Kelsen, Sandrine Baume[75] identified John Hart Ely as a significant defender of the "compatibility of judicial review with the very principles of democracy." Baume identified John Hart Ely alongside Dworkin as the foremost defenders of Marshall's principle in recent years, while the opposition to this principle of "compatibility" were identified as Bruce Ackerman[76] and Jeremy Waldron.[77] In contrast to Waldron and Ackerman, Ely and Dworkin were long-time advocates of the principle of defending the Constitution upon the lines of support they saw as strongly associated with enhanced versions of judicial review in the federal government.

Monuments and memorials[edit]

John Marshall was honored on a Postal Issue of 1894
Marshall Memorial
by William Wetmore Story

Marshall's home in Richmond, Virginia, has been preserved by Preservation Virginia (formerly known as the Association for the Preservation of Virginia Antiquities). It is considered to be an important landmark and museum, essential to an understanding of the Chief Justice's life and work.[68] The United States Bar Association commissioned sculptor William Wetmore Story to execute the statue of Marshall that now stands inside the Supreme Court on the ground floor.[78] Another casting of the statue is located at Constitution Ave. and 4th Street in Washington D.C. and a third on the grounds of the Philadelphia Museum of Art. Story's father Joseph Story had served as an Associate Justice on the United States Supreme Court with Marshall. The statue was originally dedicated in 1884.[78]

Marshall memorialized on the 1890 $20 Treasury Note, and one of 53 people depicted on United States banknotes.

An engraved portrait of Marshall appears on U.S. paper money on the series 1890 and 1891 treasury notes. These rare notes are in great demand by note collectors today. Also, in 1914, an engraved portrait of Marshall was used as the central vignette on series 1914 $500 federal reserve notes. These notes are also quite scarce. (William McKinley replaced Marshall on the $500 bill in 1928.) Example of both notes are available for viewing on the Federal Reserve Bank of San Francisco website.[79][80] Marshall was also featured on a commemorative silver dollar in 2005.

On September 24, 1955, the United States Postal Service issued the 40¢ Liberty Issue postage stamp honoring Marshall with a 40 cent stamp.

Having grown from a Reformed Church academy, Marshall College, named upon the death of Chief Justice John Marshall, officially opened in 1836 with a well-established reputation. After a merger with Franklin College in 1853, the school was renamed Franklin and Marshall College. The college went on to become one of the nation's foremost liberal arts colleges.

Additionally, four law schools and one University today bear his name: The Marshall-Wythe School of Law (now William and Mary Law School at the College of William and Mary in Williamsburg, Virginia; The Cleveland-Marshall College of Law in Cleveland, Ohio; John Marshall Law School in Atlanta, Georgia; and, The John Marshall Law School in Chicago, Illinois. The University that bears his name is Marshall University in Huntington West Virginia. Marshall County, Illinois, Marshall County, Indiana, Marshall County, Kentucky and Marshall County, West Virginia are also named in his honor. A number of high schools around the nation have also been named for him.

John Marshall's birthplace in Fauquier County is a park, the John Marshall Birthplace Park, and a marker can be seen on Route 28 noting this place and event. North Marshall Mountain 38°46′34″N 78°12′11″W / 38.776°N 78.203°W / 38.776; -78.203[81] and South Marshall Mountain 38°46′19″N 78°13′12″W / 38.772°N 78.220°W / 38.772; -78.220[82] in Shenandoah National Park are named after him.[citation needed] Playing chess was "a favorite pastime" of Chief Justice Marshall. A sculpture, The Chess Players is located near a statue of the Chief Justice in John Marshall Park in Washington, DC.[83]

Marshall, Michigan was named in his honor five years before Marshall's death. It was the first of dozens of communities and counties named for him. Marshall County, Kentucky was named in his honor.

John Marshall was an active Freemason and served as Grand Master of Masons in Virginia in 1794-1795 of the Most Worshipful Grand Lodge of Ancient, Free, and Accepted Masons of the Commonwealth of Virginia.[84]

Virginia State Route 55, from Front Royal, Virginia to Gainesville, Virginia, is named "John Marshall Highway" in Marshall's honor.[85]

Prominent family connections[edit]

Marshall was a descendant of the Randolph family of Virginia, including William Randolph I and Thomas Randolph (of Tuckahoe).[86][87] Other prominent family connections include:

Bibliography[edit]

Primary sources[edit]

See also[edit]

Notes[edit]

  1. ^ "Federal Judicial Center: John Marshall". 2009-12-12. Retrieved 2009-12-12. 
  2. ^ "Marshall Genealogy". Retrieved 29 March 2014. 
  3. ^ Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (2000) p. 121
  4. ^ a b Jean Edward Smith, John Marshall: Definer of a Nation (1998) p. 8
  5. ^ Connelley, William Elsey; Coulter, E.M. (1922). "Capt. Pendleton Farmer De Weese Keith". In Kerr, Charles. History of Kentucky III. New York: The American Historical Society. p. 122. 
  6. ^ a b Jefferson's mother and Marshall's maternal grandmother were first cousins, because their fathers were both sons of William Randolph and Mary Isham. See Beveridge, Albert. The Life of John Marshall: Frontiersman, Soldier Lawmaker (Beard Books 2000).
  7. ^ Quoted in Baker (1972), p. 4 and Stites (1981), p. 7.
  8. ^ Smith, Jean Edward (1998). John Marshall: Definer of a Nation. Macmillan. pp. 26–27. ISBN 978-0-8050-5510-8. 
  9. ^ Oak Hill, Fauquier County, National Park Service, Department of the Interior.
  10. ^ Jean Edward Smith, John Marshall: Definer of a Nation (1998) p. 35
  11. ^ Smith, John Marshall: Definer of a Nation (1998) p. 22
  12. ^ John Marshall at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
  13. ^ a b "Life and Legacy", The John Marshall Foundation.
  14. ^ Stites (1981), pp. 11-65.
  15. ^ Smith, John Marshall: Definer of a Nation (1998) pp. 75-82
  16. ^ Smith, John Marshall: Definer of a Nation (1998) p. 105
  17. ^ Smith, John Marshall (1998) pp. 118-20
  18. ^ Smith, John Marshall: Definer of a Nation (1998) p. 157
  19. ^ a b Currie, David. The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, page 136 (Univ. of Chicago 1992).
  20. ^ Flanders, Henry. The Life of John Marshall, pp 38, and 30-31, Philadelphia, T. & J. W. Johnson & Co., 1905.
  21. ^ Marshall's argument at the bar in Ware v. Hylton is here.
  22. ^ a b "Ariens, Michael. "John Marshall."". 
  23. ^ Smith, John Marshall: Definer of a Nation (1998) pp. 258-9
  24. ^ Smith, John Marshall: Definer of a Nation (1998) pp. 268-86
  25. ^ John Edward Oster, The political and economic doctrines of John Marshall (2006) p. 348
  26. ^ Paul Johnson, A History of the American People, p. 237.
  27. ^ "Book of Members, 1780–2010: Chapter M". American Academy of Arts and Sciences. Retrieved July 28, 2014. 
  28. ^ John Marshall at Supreme Court Historical Society.
  29. ^ Oyez Project, Supreme Court media, John Marshall.
  30. ^ Stites (1981), pp. 77-80.
  31. ^ "John Jay to President John Adams, Jan. 2, 1801, in 4 THE CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY, (Henry P. Johnson ed., 1893)". 
  32. ^ Robarge, David (2000). A chief justice's progress: John Marshall from Revolutionary Virginia to the Supreme Court. Greenwood Publishing. p. xvi. 
  33. ^ Quoted in Stites (1981), p. 80.
  34. ^ Smith, John Marshall: Definer of a Nation (1998) p. 16
  35. ^ The Marshall Court, 1801-1835, Supreme Court Historical Society.
  36. ^ FindLaw Supreme Court Center: John Marshall
  37. ^ Currie, David (1992). The Constitution in the Supreme Court: The First Hundred Years, 1789–1888. Univ. of Chicago. pp. 152–5. ISBN 978-0-226-13109-2 .
  38. ^ Marshall, joined by Associate Justices Gabriel Duvall and Joseph Story, wrote:

    When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law. Law has been defined by a writer, whose definitions especially have been the theme of almost universal panegyric, "To be a rule of civil conduct prescribed by the supreme power in a State."

    Ogden v. Saunders, 25 U.S. 213, 347 (1827).

  39. ^ Spooner, Lysander (2008). Let's Abolish Government. Ludwig von Mises Institute. p. 87. ISBN 1-122-82097-6. "This definition is an utterly false one. It denies all the natural rights of the people; and is resorted to only by usurpers and tyrants, to justify their crimes....he gives this miserable definition, which he picked up somewhere—out of the legal filth in which he wallowed...." 
  40. ^ George Gibbs, Memoirs of the Administrations of Washington and John Adams, (1846), vol. II, p. 350.
  41. ^ Fox, John. "John Marshall". Expanding Democracy, Biographies of the Robes. Public Broadcasting Service .
  42. ^ Smith, John Marshall pp. 351–2, 422, 506
  43. ^ Albert Jeremiah Beveridge, The life of John Marshall: Volume 4 (1919) p. 94
  44. ^ Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (1996) pp. 15–6, 119–23; the statement to Story is on p. xiv.
  45. ^ G. Edward White, The Marshall Court and Cultural Change: 1815-1835 (abridged ed. 1991) pp 157-200
  46. ^ A reliable statement of the quote was recounted by Theophilus Parsons, a law professor who knew Marshall personally. Parsons, "Distinguished Lawyers," Albany Law Journal Aug. 20, 1870, pp 126-7 online. Historian Edward Corwin garbled the quote to: "Now Story, that is the law; you find the precedents for it," and that incorrect version has been repeated. Edward Corwin, John Marshall and the Constitution: a chronicle of the Supreme Court (1919) p 119.
  47. ^ R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court (2007) p. 251
  48. ^ a b "Jefferson, Thomas. Letter to Spencer Roane.". 
  49. ^ Gordon S. Wood, "Judicial Review in the Era of the Founding" in Is the Supreme Court the guardian of the Constitution? ed by Robert A. Licht (1993) pp 153-66
  50. ^ Coffman, Steve (2012). Words of the Founding Fathers. NC, USA: McFarland. p. 184. ISBN 978-0-7864-5862-2. 
  51. ^ "Linder, Doug. "The Treason Trial of Aaron Burr."". 
  52. ^ Burns, Arnold and Markman, Stephen. "Understanding Separation of Powers", Pace Law Review, 575, 589 (1987-01-01).
  53. ^ Edward Samuel Corwin, John Marshall and the Constitution: a chronicle of the Supreme Court (1919) p. 133
  54. ^ a b The New York Times Guide to Essential Knowledge: A Desk Reference for the Curious Mind. MacMillan. 2007. p. 661. ISBN 978-0-312-37659-8. 
  55. ^ Before the Evarts Act in 1891, the cases that could reach the Supreme Court were heard as a matter of right, meaning that the Court was required to issue a decision in each of those cases. See Russel R. Wheeler & Cynthia Harrison, Fed. Judicial Ctr., Creating the Federal Judicial System 17–18 (3d ed. 2005).
  56. ^ Hartnett, Edward. "Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill", Columbia Law Review, Volume 100 (November 2000).
  57. ^ a b c Hall, Kermit and John, Patrick. The pursuit of justice: Supreme Court decisions that shaped America, pages 29-36 (Oxford University Press 2006).
  58. ^ Virelli, Louis and Leibowitz, David. "'Federalism Whether They Want It Or Not': The New Commerce Clause Doctrine And the Future of Federal Civil Rights Legislation After United States v. Morrison", University of Pennsylvania Journal Constitutional Law, Volume 3, page 926 (2001).
  59. ^ Boller, Paul F.; John H. George (1989). They Never Said It: A Book of False Quotes, Misquotes, & False Attributions. New York, NY: Oxford University Press. p. 53. ISBN 978-0-19-506469-8. 
  60. ^ LCCN 10-16751
  61. ^ A History of the American Colonies.
  62. ^ Marshall, John; Widger, David, ed., Life of Washington (Document No. 28859 — Release Date 2009-05-18) at Project Gutenberg. Also see Vol 1. Vol 2.
  63. ^ Foran, William A (October 1937). "John Marshall as a Historian". American Historical Review 43 (1). pp. 51–64 url = http://www.jstor.org/stable/1840187 .
  64. ^ Note. Online Library of Liberty .
  65. ^ Marshall, John. Abridgment. Cary & Lea. 
  66. ^ "John Marshall House, Richmond, Virginia.". 
  67. ^ "National Park Service, Marshall's Richmond home.". 
  68. ^ a b National Park Service, "The Great Chief Justice" at Home, Teaching with Historic Places (TwHP) lesson plan
  69. ^ Smith. John Marshall. pp. 36, 406. .
  70. ^ Clarence J. Elder & Margaret Pearson Welsh (August 1983). "National Register of Historic Places Inventory/Nomination: D. S. Tavern". 
  71. ^ Smith. John Marshall'. p. 523. 
  72. ^ John Marshall at Find a Grave.
  73. ^ Christensen, George A (19 Feb 2008). "Here Lies the Supreme Court Revisited: Gravesites of the Justices". Journal of Supreme Court History (University of Alabama: Supreme Court Historical Society) 33 (1): 17–41. doi:10.1111/j.1540-5818.2008.00177.x. .
  74. ^ "John Marshall Papers". Special Collections Research Center, Earl Gregg Swem Library, College of William & Mary. Retrieved 4 February 2011. 
  75. ^ Baume, Sandrine (2011). Hans Kelsen and the Case for Democracy, ECPR Press, pp53-54.
  76. ^ Ackerman, Bruce (1991). We the People.
  77. ^ Waldron, Jeremy (2006). "The Core of the case against judicial review," The Yale Law Review, 2006, Vol. 115, pp 1346-1406.
  78. ^ a b Waite, Morrison Remick; Rawle, William Henry; Association, Philadelphia Bar (1884). Exercises at the ceremony of unveiling the statue of John by Morrison Remick Waite, William Henry Rawle, Philadelphia Bar Association - 1884 - Biography & Autobiography - 92 pp., pages 1, 3, 5 9, 23-29.. 
  79. ^ "Pictures of large size Federal Reserve Notes featuring John Marshall, provided by the Federal Reserve Bank of San Francisco.". 
  80. ^ Pictures of US Treasury Notes featuring John Marshall, provided by theFederal Reserve Bank of San Francisco.
  81. ^ "North Marshall". Peakbagger.com. Retrieved 4 October 2013. 
  82. ^ "South Marshall". Peakbagger.com. Retrieved 4 October 2013. 
  83. ^ Goode, James M; Seferlis, Clift A (2008). Washington sculpture : a cultural history of outdoor sculpture in the nation's capital. Baltimore: Johns Hopkins University Press. ISBN 9780801888106. Retrieved 2013-03-23. 
  84. ^ Tignor, Thomas A. The Greatest and Best: Brother John Marshall at masonicworld.com.
  85. ^ Adam Froehlig and Mike Roberson - Virginia Highway Index
  86. ^ Page, Richard Channing Moore (1893). "Randolph Family". Genealogy of the Page Family in Virginia (2 ed.). New York: Press of the Publishers Printing Co. pp. 249–272. 
  87. ^ Glenn, Thomas Allen, ed. (1898). "The Randolphs: Randolph Genealogy". Some Colonial Mansions: And Those Who Lived In Them : With Genealogies Of The Various Families Mentioned 1. Philadelphia, Pennsylvania: Henry T. Coates & Company. pp. 430–459. 
  88. ^ "Online review, John Marshall and the Heroic Age of the Supreme Court.". 

References[edit]

Further reading[edit]

External links[edit]

United States House of Representatives
Preceded by
John Clopton
Member of the U.S. House of Representatives
from Virginia's 13th congressional district

1799–1800
Succeeded by
Littleton Tazewell
Political offices
Preceded by
Timothy Pickering
United States Secretary of State
1800–1801
Succeeded by
James Madison
Legal offices
Preceded by
Oliver Ellsworth
Chief Justice of the Supreme Court
1801–1835
Succeeded by
Roger Taney