The lives of John Marshall.

• Author: Gerhardt, Michael J.

INTRODUCTION

Near the end of John Ford's masterpiece The Man Who Shot Liberty Valence, (1) a newspaper reporter observes, "when the legend becomes fact, print the legend." (2) More than a few popular legends about John Marshall have been printed as fact over the years: that he was a zealous partisan committed to striking a blow at Jeffersonian democracy (and of course at Thomas Jefferson himself); (3) that he was a fine politician but a poor lawyer; (4) that he was a judicial activist and reactionary; (5) and that he intellectually dominated the other justices with whom he served on the Court. (6) Another popular legend holds that Marshall and Andrew Jackson were implacable enemies, as reflected in Jackson's reputed remark, "John Marshall has made his decision, now let him enforce it." (7) Legend further has it the Liberty Bell cracked upon announcing the news of Marshall's death. (8)

None of these legends is factually correct--the Liberty Bell, for instance, was already cracked when it announced Marshall's death. (9) The proliferation of these and other legends nonetheless is as good a demonstration as there is of Jack Balkin's astute observation that judicial greatness is a function of the future's use of the past. (10) From the moment Marshall died, one could have said of Marshall, as Edwin Stanton said of Lincoln at the moment he succumbed to an assassin's bullet, "now he belongs to the ages." (11)

The objective of this Article is to provide an overview of what the ages have made of John Marshall. My concern is not his life but his image. Hence, I place greater emphasis on how his image has been manipulated throughout American history than on his actual deeds and accomplishments. (12) My purpose is both to trace Marshall's shifting image(s) from the time of his death through the dawning of the modern era and to test the criteria that Balkin has suggested for measuring judicial greatness. The materials relevant to my inquiry are not so much the Court's official opinions but the public statements and sentiments of national political leaders, Supreme Court justices, and others who have helped to shape public images of Marshall over time.

This Article consists of six sections. The first five sections briefly sketch John Marshall's image in different eras--the Jacksonian, the Civil War and Reconstruction, the Progressive, the New Deal, and the dramatic first few years of the Warren Court. The final section considers some possible lessons that can be derived from this survey regarding Marshall's place in our history, including some relevant criteria for determining judicial greatness. The criteria, which cut across ideological and partisan divisions, include: (1) the longevity of service on the Court; (2) substantial participation in the decisions in some of the Court's most socially and politically significant opinions over time; (3) the basic qualities of a jurist's decisions (including, but not limited to, their relative craftsmanship particularly in terms of a distinctive writing style, creativity, influence, and durability); (4) leadership on and off the Court (including developing strong support from national political leaders and academic elites over time); and (5) distinctive or exemplary judicial temperament. For a jurist to qualify for greatness, he or she should satisfy not some but all of these criteria. John Marshall unquestionably meets all of them and thus easily qualifies as a great justice.

1. THE JACKSONIAN ERA

   It is tempting to think that in the few decades immediately following John Marshall's death there was a distinct image of Marshall that dominated the public consciousness. In fact, there was not. Instead, in the few decades immediately following his death, there was more than one salient image of Marshall put forward to the public, depending on the politics of the observers or commentators.

   Immediately following Marshall's death on July 9, 1835, there was a notable outpouring of praise that crossed party lines. (13) One eloquent eulogy came from President Jackson, who had led the Democratic movement that had helped to bury Marshall's own Federalist party some years before Marshall's death. In his eulogy, President Jackson acknowledged that although

   I sometimes dissented from the constitutional expositions of John Marshall, I have always set a high value upon the good he has done for his country. The judicial opinions of John Marshall were expressed with the energy [and clarity,] which were peculiar to his strong mind, and give him a rank among the greatest men of his age. (14) Many prominent Whigs, including their leader Henry Clay, praised Marshall, as did John Quincy Adams, by then a member of the House of Representatives. (15) Throughout this period, a relentless defender of the late Chief Justice's legacy both on and off the Court was his friend and colleague Associate Justice Joseph Story. (16)

   At the same time, the partisanship that predominated discourse regarding the Court during Marshall's tenure did not end with his death. Indeed, it persisted, if not intensified. A number of Democratic newspapers expressed their satisfaction that Marshall's death gave President Jackson a golden opportunity to appoint a successor. (17) In a series of partisan editorials on the significance of Marshall's record, the New York Evening Post was perhaps the most openly gloating of the Democratic papers. (18) It frankly labeled Marshall a partisan, who, in its estimation,

   distrusted the virtue and intelligence of the people, and was in favor of a strong and vigorous General Government, at the expense of the fights of the States and of the people. His judicial decisions of all questions involving political principles have been uniformly on the side of implied powers and a free construction of the Constitution. (19) The paper denounced Marshall for having "been, all his life long, a stumbling block and impediment in the way of democratick [sic] principles ..., and his situation, therefore, at the head of an important tribunal, constituted in utter defiance of the very first principles of democracy, has always been to us ... an occasion of lively regret." (20) It concluded, "[t]hat he is at length removed from that station is a source of satisfaction," and noting that while "we lament the death of a good and exemplary man, we cannot grieve that the cause of aristocracy has lost one of its chief supporters." (21)

   These comments sparked extremely sharp condemnation from the Whig newspapers. (22) For instance, the New York Courier retorted, "[t]he brutality of the Evening Post is meeting bitter rebuke from every quarter of the Union where its infamous notice of the death of Chief Justice Marshall has reached .... [Its editorial was] an atrocious outpouring of partisan venom." (23) The Philadelphia National Gazette responded that the Evening Post's editorials were "[an] endeavor to breathe the polluted breath of party upon the spotless ermine.... What has democracy in federalism or any other party appellation to do with the tribunal of justice?" (24) The Post responded that "democracy and federalism ... have much to do with that tribunal of justice to which belongs the expounding of Constitutional questions," and reiterated its view that "in all ... questions, the decision of which rested wholly on the construction to be given certain clauses of the Constitution,... Chief Justice Marshall threw the whole weight of his official influence on the aristocratick [sic] side of free construction." (25)

   To put these debates in broader perspective, one should recall that, to Marshall's critics, his chief justiceship strengthened the Court as a "fortress of conservatism." (26) Democrats, first under Thomas Jefferson and later under Andrew Jackson, derided Marshall as a conservative, because Marshall and his allies had resisted the changes that Jacksonian democracy promised. Marshall's detractors believed he had been instrumental in reading into the Constitution the policies and philosophy of the Federalist party long after it had ceased to exist. (27) To its critics, the Federalist party was the party of aristocracy (i.e., of those who had power and owned property at and since the time of the Constitution's founding), (28) and so to these critics anything Marshall did to advance his party's cause was construed as promoting aristocracy. As Chief Justice, he joined in upholding broad exercises of federal power at the expense of state sovereignty and in restricting state interferences with contract and property rights. (29) Whereas Marshall's defenders hailed his opinions for ensuring the viability of the newly formed national government, his critics condemned him for expanding federal power at the expense of the states, for his distrust of democratic institutions and populism, for thwarting state economic and social reforms, and for protecting the privileges and status of the propertied classes. (30)

   The obviously sharp partisan differences between those who supported Marshall's vision and those who denounced it were intensified by President Jackson's choice of a successor, Roger Taney. In many respects, Whigs viewed Taney as the antithesis of Marshall. Those sympathetic to Marshall's vision feared that, as one of Jackson's most loyal defenders, Taney would become an integral part of a governmental regime basically opposed to many of the principles for which Marshall stood. Whigs were especially fearful that the Court, under Taney's guidance, would surrender its guardianship of property rights, which it would leave to the mercy of state legislatures dominated by the masses. Whigs further feared Taney, whose nominations for Treasury Secretary and Associate Justice had been previously rejected by the Senate, would be eager to use his powers as Chief Justice to even the score with his political foes. In 1836, a shift in control of the Senate to the Democrats virtually guaranteed Taney's confirmation. (31)...