The Great Chief Justice: John Marshall and the Rule of Law.

• Author: Ely, Jr., James W.

By Charles F. Hobson Lawrence: University Press of Kansas, 1996. Pp. xv, 256. $35.00

Scholars have long agreed that John Marshall occupies a preeminent place in the growth of American constitutionalism. Marshall contributed significantly to constitutional law and cemented the institutional role of the Supreme Court as a coequal branch of government. Yet, despite numerous studies (see, for instance, Herbert A. Johnson, The Chief Justiceship of John Marshall, 1801-1835. Columbia, S.C.: University of South Carolina Press, 1997, and G. Edward White, The Marshall Court and Cultural Change, 1815-35. New York: Macmillan, 1988), Marshall has remained a surprisingly elusive subject for historians. The classic study by Albert J. Beveridge (The Life of John Marshall, 4 vols. Boston: Houghton Mifflin, 1916-19) is marred by both inaccuracies and undue partisanship. To complicate matters, Marshall's constitutional philosophy has too often been viewed in a simplistic mariner designed to validate twentieth-century notions of judicial review and enlarged governmental authority.

Against this backdrop, the volumes under review represent welcome and thoughtful additions to the Marshall literature. The works complement each other. Hobson has written an acute analysis of Marshall's jurisprudence and craft of judging. Smith has provided a well-balanced biography of Marshall, looking at the many facets of his long career. Both are sensitive to the interplay between legal developments and the political currents of the age.

Relying primarily on Marshall's judicial opinions, Charles F. Hobson in The Great Chief Justice: John Marshall and the Rule of Law proceeds to dispel a number of stubborn myths that cloud our understanding of Marshall's tenure as chief justice. He emphasizes that Marshall's genius lay not in innovative theorizing but in effectively articulating legal principles emanating from the formation of the American Republic. Marshall has long been linked with the assertion of judicial review in Marbury v. Madison (1803). As Hobson points out, however, by that time "the idea that courts could void laws contravening the Constitution was no longer seriously controverted" (p. 55). Not only was Marshall simply affirming a widely shared belief, but Marbury can best be seen as "a strategic retreat by the judiciary" (p. 49) to avoid a political confrontation with the executive branch. Indeed, Hobson maintains that Marshall's concept of judicial review was both narrow and defensive in nature, designed to safeguard the independence of the courts and to protect the frail national union from aggressive moves by the states. Marshall never made "any claim to judicial supremacy in expounding the Constitution or to exclusive guardianship of the fundamental law" (p. 67); nor did he envision broad judicial supervision of society.

Similarly, Hobson contends that Marshall's constitutional nationalism, as expressed in decisions such as McCulloch v. Maryland (1819), was not intended to enlarge the powers of the federal government. Rather, Marshall sought to restrict state encroachments on the exercise of legitimate congressional authority. According to Hobson, Marshall's language "did not signify approval of the idea of an evolving Constitution" (p. 119). In McCulloch, Hobson continues, Marshall "did not intend to suggest that Congress, in addition to its...