John Marshall through the eyes of an admirer: John Quincy Adams.

• Author: Hawkins, Michael Daly

The United States Supreme Court recently heard argument in a Fourth Amendment case the Founders could have never dreamed of: whether government use of a thermal imaging device, used to detect heat emissions from a building or dwelling, requires a search warrant before scanning the exterior of a home. (1) Before argument began, Chief Justice Rehnquist noted that this was the first session of the Court following the February 4th anniversary of the beginning of John Marshall's term as Chief Justice:

I am quite convinced that Marshall deserves to be recognized along with George Washington, Alexander Hamilton, and Thomas Jefferson as one of the Founding Fathers of this country. Marshall served as Chief Justice from 1801 until 1835. He authored more than 500 opinions, including most of the important cases the Court decided during his tenure. Using his remarkable ability to reason from general principles to conclusions based on these principles, he derived from the Constitution a road map of how its checks and balances could be enforced in practice.... It may be risky to suggest that any institution which has endured for over 200 years, the way the Supreme Court of the United States has, could be [the result of] the length and [sic] shadow of one individual, but surely there is only one individual who could possibly qualify for this distinction, and that is John Marshall. (2) The Chief Justice was quite right to mark the occasion, as a predecessor had one hundred years earlier. (3) It happily coincides with another important milepost: the 250th anniversary of the birth of James Madison. Two individuals more central to the development and understanding of the United States Constitution would be very hard to find. Madison, for example, was a principal contributor to the Constitution and author of the Bill of Rights, whose contribution is so remarkably enduring that the latest amendment to the Constitution, added in 1992, came off his pen in 1789. (4) His role in the creation of the "extended national republic" is rightfully described by Professor Jack Rakove as having had many partners, but few equals. (5) Charles Evans Hughes, who would serve as Chief Justice more than a century later, describing Marshall's impact, said simply, "Marshall's preeminence was due to the fact that he was John Marshall." (6)

This discussion focuses on Marshall. His appointment, coming at the end of the term of John Adams in 1801 following a bitterly contested election, had an impact on the development of constitutional law as we have come to know it that can only be described as profound. I choose a rather unique pair of eyes to look at Marshall: John Quincy Adams. Adams knew Marshall well; his father had appointed the Virginian to the Supreme Court--an act Quincy would describe as "one of the most important services rendered by [his father] to his country." (7) Quincy admired Marshall's view of the role of the courts in resolving disputes between the federal and state governments, a view seriously at odds with the "judge-as-machine" philosophy of Marshall's cousin Thomas Jefferson. (8)

It seems entirely appropriate to pay attention to the thoughts of the son of a former President who assumed the office in his own right following an extraordinarily close election. (9) We also enjoy an advantage in doing so, for John Quincy Adams left us an extensive record of his observations of the times in which John Marshall lived and worked: a detailed diary, begun at age eleven and carefully maintained for nearly seventy years. John Quincy Adams (JQA) enjoyed a view of the first half of the nineteenth century shared by few others:

He walked with Czar Alexander I on the boulevards of St. Petersburg; he had an audience with George III ...; he dined with Wellington; he saw Napoleon return to Paris from Elba; and he exchanged views with Mme. de Stael and Jeremy Bentham and Talleyrand. He saw George Washington receive the Creek Chiefs, he dined repeatedly at the new White House with Jefferson.... He sat [at] the [Impeachment] trial of [Supreme Court Justice] Samuel Chase, and heard Aaron Burr make his farewell address.... He commented on the transcendentalism of Emerson and the novels of Bulwer; he shook the hand of Dickens; and superintended the erection of the sculptures on the portico of the Capitol.... To him more than any other American we owe the preservation of the Smithson[ian].... He taught oratory in Harvard University. He published original poetry, and versified Horace and La Fontaine; he read Bancroft and Byron; he expounded Shakespeare.... He was the chief author of the Monroe Doctrine. (10) JQA was an unabashed admirer of the man he called "Judge Marshall." (11) He was in a position, however, to make first hand judgments about...