Garrett Epps, a former reporter for The Washington Post, teaches Constitutional Law at the University of Baltimore School of Law and is Supreme Court Correspondent for the Atlantic.
To call John Marshall the Babe Ruth of American constitutional law is an understatement. He didn’t just master the game; he made it up. In his new biography of Marshall, Richard Brookhiser summarizes the chief justice’s triumph thus: “He gave the office what its first occupant, John Jay, had complained it lacked: dignity.”
Brookhiser is an editor at National Review and an indefatigable chronicler of the founding generation. He has produced studies of George Washington, Alexander Hamilton, James Madison and Gouverneur Morris. He is, however, not a lawyer, and in “John Marshall: The Man Who Made the Supreme Court,” his focus is on politics, not law: “I keep my eye, as Marshall always did, on the politics that surrounded him.” It’s an understandable, but regrettable, lapse. Marshall’s great talent was his legal creativity, which takes hard work for a layperson or lawyer to appreciate. Brookhiser also underestimates the chaos and danger of the politics that he does highlight. Perhaps for that reason, he doesn’t give Marshall his full due.
“John Marshall” is, to be sure, entertaining and instructive — worthy to be set beside its author’s earlier works. It would be ideal reading for a student contemplating law school. And in addition to the pleasure of its prose, it may, one hopes, whet appetites for an even deeper look at the career of “the Great Chief Justice.”
Marshall lacked the self-creating fire of a Washington, the scattershot genius of a Jefferson and the inner demons of a Hamilton. He rose thanks to a knack for being in the right place at the right time. He served in the Continental Army under Washington at Valley Forge; succeeded at the Virginia bar; took on a diplomatic mission that made him a national hero; was elected to Congress, then appointed secretary of state by John Adams; and after Adams lost the White House to Thomas Jefferson, Marshall served as chief justice for 34 years until his death in 1835.
Over those decades, he united the court into a powerful institution, largely on the strength of opinions he wrote. His landmark rulings are at best eloquent and usually persuasive. In McCulloch v. Maryland, he laid out the contours of Congress’s commerce power; in Burr v. United States , he blunted the law of treason as a tool to punish political enemies; in Dartmouth College v. Woodward, he anchored the constitutional underpinnings of contract law; in Johnson v. M’Intosh, Cherokee Nation v. Georgia and Worcester v. Georgia, he gave birth to the entire field of federal Indian law.
But his most important creation is the doctrine of Marbury v. Madison — the idea that the Supreme Court has the power and the duty to invalidate acts of Congress that it finds in conflict with the Constitution. That result was by no means inevitable; to reach it, Marshall had to navigate a treacherous political landscape. If Brookhiser aims to reveal the politics surrounding Marshall’s career, he disappoints somewhat at this point. A fuller political profile of the Marshall years would give the reader more of the scope of his unlikely triumph.
Consider Brookhiser’s brief summary of America’s first constitutional crisis, the Alien and Sedition Acts controversy. Adams’s Federalists, he writes, “struck at enemies at home with laws allowing the president to deport aliens he deemed dangerous and the federal courts to prosecute libels on the federal government.” This understates both the sweep and the aim of the acts. They were, in fact, essentially part of an attempted coup by the Federalist Party. Faced with almost certain defeat in 1800, the Federalists tried to shut down criticism of their leaders. The acts didn’t aim at libels on the “federal government” — they made it a crime to criticize the president or Congress. But they pointedly did not outlaw criticism of the vice president — who was Jefferson, the certain challenger to Adams in 1800. The acts also put in place sweeping restrictions on immigrants. They were accompanied by a clumsy attempt to take control of the electoral college away from the states and put it into Federalist hands.
After passage of the laws, as many as 20 Jeffersonian newspaper editors were prosecuted, and many were jailed; one member of Congress, Rep. Matthew Lyon of Vermont, was convicted of sedition. The attempt backfired: Jefferson and his supporters swept the elections in 1800, and the Federalists faded into history.
But before they exited, the lame-duck Federalist Congress installed dozens of loyalists on the bench. In fact, they created an entirely new layer of “circuit courts” full of partisans — and they installed Marshall as chief justice.
As soon as he took office, Jefferson — a distant cousin whom Marshall despised — sought to neuter the court and rid himself of Marshall.
Marshall headed off those efforts through his response in Marbury v. Madison. Federalist William Marbury had been approved as a justice of the peace by the outgoing Federalist Congress but was barred from the bench by Jefferson. Marbury sought an order from Marshall requiring Jefferson to allow him to serve. If the Supreme Court ruled against Marbury, it would be admitting that Jefferson’s partisan purge was lawful. If it ruled against Jefferson, the new president would gleefully tear up the order. There was no clear law that gave the court the power to issue orders to the president, and Marshall had no means of enforcing such an order. The Jeffersonian Congress could accuse Marshall of over-reaching — and impeach him. But the chief justice proved too wily for Jefferson and Congress. In his opinion, he explained that Jefferson had lawlessly deprived Marbury of his property, in fact, his job — and in 18th-century political terms, that was the essence of tyranny. But instead of ordering Jefferson to return it, Marshall invalidated the statute that gave the Supreme Court jurisdiction over the case. Thus, Marshall could issue no order, and no order could be defied. In this environment, the purge fizzled.
Marshall’s move in Marbury was brilliant and uniquely influential. Its doctrine that federal courts can invalidate acts of Congress has, for good or ill, been law ever since.
But Brookhiser’s account misses the fireworks: “The law and the Constitution disagreed,” he writes. “Either the law would have to be overruled, or the Constitution ignored.” But Marbury wasn’t an easy case; it was more like a magic trick. In fact, Marshall invented the supposed conflict between law and Constitution so that he could assert his authority without losing it.
Brookhiser brings to vivid life the gaudy facts and seamy characters behind such great cases as Dartmouth College and McCulloch. And he summarizes the one area where Marshall’s legal imagination was lacking — the law of American slavery. He cites historian Paul Finkelman’s recent finding that Marshall owned many more slaves than had been thought: at least 130, in his home and on his country plantations. In his 2018 book, “Supreme Injustice,” Finkelman also reported that, in seven suits brought by slaves seeking freedom under the law, Marshall never sided with the slaves. Brookhiser confines his narrative to Marshall’s decision in a case concerning the Antelope, a slave ship seized by the Coast Guard in 1825 — long after Congress outlawed the transatlantic slave trade.
Deciding the fate of the human cargo, the most creative legal mind in American history turned to stone. He could easily have read federal statutes to require that all the slaves be transported to Africa and freed. But because some of the “owners” had title to the slaves under Spanish law, Marshall wrote, they could reclaim them. Brookhiser mournfully notes that Marshall sometimes “smuggled the language of nature and of rights into constitutional law,” but didn’t do so here. “Africans might not be protected by it, but contracts were.”
Marshall’s reluctance to confront slavery clouds his legal legacy more than his admirers like to admit: Two decades after his death, his successor, Roger B. Taney, issued a decision that echoed Marshall’s respect for slave “property” rights. In that decision, for only the second time in history, the Supreme Court used the Marbury doctrine to invalidate an act of Congress. That case was the disastrous D red Scott v. Sandford.
By Richard Brookhiser
Basic. 336 pp. $30