Spirit of the Law
By Mortimer Sellers
Sunday, March 16, 1997; Page X03
John Marshall's most distinguished biographer, Albert Beveridge, complained that the chief justice's virtues and wisdom seem so great in retrospect that "he has become a sort of mythical being . . . not of this earth . . . a gigantic figure looming, indistinctly, out of the mists of the past." Jean Edward Smith repeats this observation, without entirely overcoming its implications. Biographers of John Marshall face the same difficulty that Marshall himself confronted in writing the biography of George Washington. Both men's strength was their soundness. They almost always did the right thing and made the right decisions. Such implacable reason makes for limp entertainment. Volatile and self-indulgent contemporaries such as Thomas Jefferson and Alexander Hamilton provide livelier reading with their intrigues, passions and unconquerable will to power. Washington and Marshall were better men, better company, more convivial and no less determined. But their interest today lies in their deeds, not their psychology. Marshall's greatest Supreme Court opinions speak for themselves, and his biographers must often simply repeat what Marshall said, as Smith does throughout his book.
Jean Smith has an excellent eye for the pithy quote, relishing Beveridge's description of Marshall as a "hurricane" who "made love as he made war, with all his might." But Smith's own attempts at poetic writing are more pedestrian, as when he compares Pierre-Augustin Caron de Beaumarchais to a "tennis ball." He also spends too much time explaining the contemporary relevance of John Marshall's judicial decisions, with references to their implications for Richard Nixon, the Truman administration and modern Vietnam.
What mattered more in Marshall's own lifetime was his war service under George Washington and permanent devotion to the Union. When Washington's legacy of moderation and good sense seemed threatened during John Adams's administration, the former president and commander-in-chief called Marshall to Mt. Vernon and begged him to enter Congress. Marshall refused for personal reasons and was sneaking away before dawn when Washington, dressed once more in his old uniform as lieutenant general, confronted Marshall at the stables, and ordered him to serve the nation. The younger patriot could only obey. Smith admits that the more dramatic elements of this story may not be true but wisely repeats them anyway, for their value as moral inspiration. Many episodes in Marshall's life could come straight from Livy or Plutarch, and, like Washington, Marshall cultivated such comparisons.
All Americans should read the life of John Marshall, who never forgot the principles he fought for in Germantown and starved for at Valley Forge and, above all, that the Constitution is the will of the people, which the people made supreme. Marshall could not believe that Americans relinquished their old English rights, before or after the revolution. "The many, as often as the few," he said, "can abuse power, and trample on the weak, without perceiving they are tyrants." When he sewed "Liberty or Death" onto his shirt before the battle of Great Bridge, he meant to vindicate Sir Edward Coke's dictum that acts of the legislature repugnant to the constitution are unwarranted and void. Marshall opposed the Alien and Sedition Acts, reprobated the Kentucky and Virginia Resolutions and preserved the union as a government of laws and not of men. John Adams remembered the proudest act of his life as "the gift of John Marshall to the people" as Chief Justice of the United States.
Enemies of the Constitution and national government faced in Marshall an opponent "noiseless as time, and greedy as the grave." Representative Edward Everett of Massachusetts observed the old man's strength: "In his youth, he was dissipated: attended horse races and cock fights, gamed, bet, and drank. In my youth I was . . . demure." Yet Marshall walked miles to the Capitol every morning, while the congressman drove. In a day when the chief justice of the United States has ornamented his robe with comic-opera stripes and gold brocade, we can better appreciate Marshall's republican simplicity. He introduced honest black to the bench, and did his own shopping.
As secretary of state and principal minister of the United States, John Marshall presided over the federal government's transfer from civilized Philadelphia to Washington City, where people "live like fishes, by eating each other." Fellow Virginian Thomas Jefferson had already initiated the partisan campaign that would make him president, and Marshall realized that "American principles" and "union" faced imminent collapse. Almost alone for 35 years, Marshall stood firm with his court against faction and confusion. When John Marshall died, the Liberty Bell cracked and fell silent tolling the nation's loss. Jean Edward Smith has written the exemplary life of a great man. I hope some modern judges read it.
Mortimer Sellers is the author of "American Republicanism: Roman Ideology in the United States Constitution."
© 1997 The Washington Post Co.
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