John Marshall:
Definer of a Nation

736 pages,
ISBN: 080501389X

Post Your Opinion
Prof. Smith is Read in Washington
by Jason Hanson

According to a White House press release, President Clinton wants to read this biography by a University of Toronto political scientist, Professor Jean Edward Smith (also the author of a forthcoming life of Mackenzie King). Since there is a good chance that Clinton will be called upon to nominate at least one more Supreme Court judge, it makes sense that he would want to read about John Marshall, the first significant Chief Justice of the United States Supreme Court. If Clinton starts to read this book, he will probably finish it. It is thoroughly researched, well-written, and captivating.
John Marshall lived a full life. He lived in interesting times, and he took advantage of those times. Born into a working-class Virginia family (somewhat distantly related to the wealthier Thomas Jefferson), Marshall joined George Washington's army and fought against the British during the American War of Independence. After the war, he became a successful attorney, argued the Federalist cause in the Constitutional Debates, and was well on his way to making a tidy fortune at the bar (and through land acquisitions), when he succumbed to the repeated invitations of George Washington and the second President, John Adams, to enter political life.
Like the young John A. Macdonald, the young Marshall was not wealthy; he needed to practise law to provide for his family. Like Macdonald, Marshall enjoyed drinking and despite (or perhaps partly because of) his gregarious personality was recognized as a superior politician by both friend and foe. (In 1807 during the Aaron Burr treason trial, Thomas Jefferson referred to Marshall and himself as "giants".) Although he was skilled at politics, Marshall did not jump at political appointments. Consider the impressive list of jobs he turned down: Attorney General, U.S. Minister to France, Associate Justice of the U.S. Supreme Court, and Secretary of War.
Eventually, George Washington convinced him to run for Congress. He won. After a year in Congress, he accepted President Adams's invitation to become Secretary of State, perhaps because he saw it as a way of honourably shortening his political career. (He could leave politics at the end of Adams's term without either failing to run for re-election or suffering personal defeat at the ballot box.) In the last few days of the Adams administration, he was appointed Chief Justice of the United States Supreme Court. There, he made his real mark on the American regime.
Professor Smith has a real knack for summarizing the significant points of the Marshall Court's decisions in a way that is easily understood without legal training. More importantly, the Court's rulings are presented in their political context. This is not a book for lawyers.
This book is about politics. In his preface, Professor Smith implies that he wrote it for young Americans. But Canadians can and should read it. No detailed knowledge of American history is necessary. Perhaps recognizing that his intended audience may know little of eighteenth- and nineteenth-century American history, Smith skilfully introduces characters and events, gently informing the readers of basic facts without condescension. As Canadians embark on yet another round of constitutional discussions leading to some sort of muddled consensus or crisis, Smith's presentation of Marshall and the Marshall Court gives Canadian readers some helpful perspectives in three domains: jurisprudential, constitutional, and personal.
The jurisprudential perspective shows the value of unanimous court opinions setting out the interpretation of a new (or, as in the Canadian case, recently revamped) constitution. As Smith makes clear, Marshall went to extraordinary lengths to convince his fellow judges that the Court's rulings should be unanimous: one judgement, one opinion. Under his guidance, all judges lodged at the same Washington boarding-house or hotel when the Court was in session. They had a daily routine. After eating their dinner at five o'clock, the Justices started their "evening conference", where, according to Marshall, he would "pass the evening in consultation with the Judges." No notes were kept, but cases were discussed, and, Smith ventures, "the position of the Court determined." Professor Smith delicately comments that these meetings were "undoubtedly lubricated with well-chosen Madeira." The Chief Justice, whose capacity for alcohol was impressive, had a preference for Madeira.
For the first ten years of his tenure, the single opinions of the Court were pronounced by Marshall. As Smith puts it, that practice "gave the decisions an aura of finality separate opinions could not supply." Consider the famous Marbury v. Madison case. It was politically charged and pitted the Democratic-Republicans (led by the recently elected President, Thomas Jefferson) against the Federalists (whom Marshall had recently led while he was in Congress). The Marshall Court's unanimous opinion ducked the fight by ruling that it had no power or jurisdiction to decide the case because the law that purported to give the Court the power to decide it was unconstitutional. While that decision seems uncontroversial today, at the time it was far from clear that the Court had the power to override the will of the Legislature by nullifying laws that the Court thought were unconstitutional. The Legislature was elected, the Court was not. The U.S. Constitution nowhere says that it is the court's job to strike down laws that the Court thinks are unconstitutional. But the unanimous opinion of the Marshall Court in Marbury enshrined that principle in the law and "sold" it to the public. A five-four Supreme Court judgement where the majority consists of five separate opinions might have had the same legal effect, but would not have had the same moral, political, or social effect.
The present Canadian Supreme Court is the opposite of the Marshall Court. There is almost always at least one dissent and a hodge-podge of concurring judgements. Two generations of Canadian law students have been taught to admire and to emulate the late Chief Justice Bora Laskin because he almost always dissented. Smith's book is helpful because it presents the Marshall alternative-an alternative that is not popular today but was quite useful when the Marshall Court was building a nation.
One of the major constitutional themes in the book relates to the relationship between the central government in Washington and the state governments (for example, in Richmond, Virginia). Marshall was a Federalist. He believed that an effective central government (with division of powers) was essential for liberty and democracy. The Democratic-Republicans, led by Jefferson, favoured "states rights". Before Canadians embrace "devolution" or any kind of new federalism that gives more powers to the provinces, we owe it to ourselves to examine the Marshall-Jefferson debate.
As Smith points out, even in Marshall's lifetime, the eerie (and I would say inevitable) synergy between "states rights" and "pro-slavery" factions had already developed. John Marshall believed that liberty and democracy are best achieved through the rule of law and the dispersion of power which requires an effective central government and not overly strong states (checks and balances between different spheres of government and checks and balances within each sphere of government). On the other hand, the Canadian political elite repeatedly tells us that the provinces must have more power. Professor Smith's presentation of Marshall gives the reader a helpful counter to today's constitutional dogma.
On a personal level, Marshall's example helps us avoid despair. Marshall reminds those who love liberty that in times of constitutional turmoil, it is probably not prudent and it is certainly not honourable to remain silently absorbed in commercial affairs. Surprisingly, at several points of his life, Marshall thought that the American union was perilously close to failure. He kept going and quite clearly improved the nation. But in the end, Marshall's nation did fail. Although the Marshall Court held that a slave was a person, and not a thing, a later court said the opposite. Marshall's hometown of Richmond became the capital of the Confederate States of America.
Marshall may be said to be a "Definer of a Nation" only because a generation after he died, Abraham Lincoln successfully waged the Civil War against the "states rights", "pro-slavery" South. Without Lincoln, the American experiment fails. But without Marshall, there is no Lincoln-at least not the Lincoln we know. As Professor Smith states, "The Marshall Court established the ground rules of American government. The Constitution reflected the will of the people, not the States.and the people made it supreme." Lincoln used that constitutional rationale as the basis for his legal arguments in support of the Union cause.
To say that Marshall needed Lincoln is no criticism. The same could be said of Washington. Professor Smith's book reminds us that Marshall properly belongs in the company of Lincoln and Washington. The Lincoln and Washington monuments are two of the three great American symbols. The third is the Liberty Bell. The Liberty Bell cracked when tolling the death of John Marshall.

Jason Hanson is a Toronto lawyer.


Home First Novel Award Past Winners Subscription Back Issues Timescroll Advertizing Rates
Amazon.ca/Books in Canada Bestsellers List Books in Issue Books in Department About Us