Marshall, John (1755–1835)

• Author: Robert K. Faulkner
• Pages: 1672-1676

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John Marshall, the third CHIEF JUSTICE of the Supreme Court (1801?1835), is still popularly known as the "Great

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Chief Justice" and the "Expounder of the Constitution." He was raised in the simple circumstances of backwoods Virginia, but his mother was pious and well educated and his father was a leader of his county and a friend of GEORGE WASHINGTON. Even though Marshall had little formal education, his extraordinary powers of mind, coupled with equity and good humor, made him a natural leader as a young soldier of the Revolution, as a member of the Richmond bar (then outstanding in the country), and as a general of the Virginia militia. He became nationally prominent as a diplomat, having outwitted the wily Charles Talleyrand while negotiating with France's Directory (1797?1798), and as a legislator, having supported Washington's FEDERALISM first in the Virginia Assembly (1782?1791, 1795?1797) and then in the HOUSE OF REPRESENTATIVES (1799?1800). In June 1800 President JOHN ADAMS named Marshall to replace the Hamiltonian John Pickering as secretary of state, and in January 1801, after the strife-ridden Federalists' epochal defeat, appointed him Chief Justice when JOHN JAY, the first Chief Justice, declined to preside again over "a system so defective."

From its inception Marshall had defended the Constitution. His experience in Washington's ragtag army had made him a national patriot while rousing his disgust with the palsied Confederation. At the crucial Virginia ratifying convention (June 1788) he replied in three important speeches to the fears of PATRICK HENRY and other Anti-Federalists. The proposed Constitution, he argued, was not undemocratic, but a plan for a "well-regulated democracy." It set forth in particular the great powers of taxing and warring needed by any sound government. The state governments would retain all powers not given up expressly or implicitly; they were independently derived from the people. A mix of dependence upon the people and independence and virtue in the judges would prevent federal overreaching. If a law were not "warranted by any of the powers enumerated," Marshall remarked prophetically, the judges would declare it "void" as infringing "the Constitution they are to guard." Two other nonjudicial interpretations of the Constitution are notable. In 1799 Marshall wrote a report of the Virginia Federalists defending the constitutionality of the ill-famed Sedition Act of 1798 (a law he nevertheless had opposed as divisive in the explosive political atmosphere surrounding the French Revolution). If the NECESSARY AND PROPER CLAUSE authorizes punishment of actual resistance to law, he argued, it also authorizes punishment of "calumnious" speech, which is criminal under the COMMON LAW and prepares resistance. A speech to Congress in 1800, once famous in collections of American rhetoric, defended the President's power required by JAY ' STREATY to extradite a British subject charged with murder on a British ship. Because the criminal and the location were foreign, Marshall argued, the question was not a case in law or equity for United States courts; although a treaty is a law, it is a "political law," the execution of which lies with the President, not the courts. The judiciary has no political power whatever; the President is "the sole organ of the nation in its external relations."

As Chief Justice, Marshall raised the office and the Supreme Court to stature and power previously lacking. After having two Chief Justices in eleven years, the Court had Marshall for thirty-four, the longest tenure of any Chief Justice before or since. Individual opinions SERIATIM largely ceased, and dissents were discouraged. The Court came to speak with one voice. Usually the voice was Marshall's. He delivered the OPINION OF THE COURT in every case in which he participated during the decisive first five years, three-quarters of the opinions during the next seven years, and almost all the great constitutional opinions throughout his tenure. Marshall's captivating and equable temper helped unite a diverse group of justices, many appointed by Republican Presidents bent on reversing the Court's declarations of federal power and restrictions of state power. In the face of triumphant Jeffersonian Republicans, suspicious of an unelected judiciary stocked with Federalists, Marshall was wary and astute. His Court never erred as the JAY COURT did in CHISHOLM V. GEORGIA (1793), which had provoked the...