When the new millennium begins in 2001, it will be exactly 200 years since John Marshall was appointed Chief Justice of the Supreme Court. Certainly a giant among giants of the founding generation, John Marshall has been the subject of voluminous, microscopic, literary attention, resulting in the accolade, "The Great Chief Justice," a title accorded to him and no other. Charles F. Hobson, editor of The Papers of John Marshall at the Institute of Early American History and Culture, has now joined the coterie of Marshall admirers, not with a biography in the grand style of Albert Beveridge (1916-1919) or Leonard Baker (1974), but with a superb analysis focused almost exclusively on Marshall the jurist. His purpose is to explicate comprehensively Marshall's jurisprudence, to ascertain his assumptions, beliefs, ideas and motives through a careful reading of his judicial writings.
Within a framework of seven chapters, the author summarizes Marshall's life prior to 1801, analyzes the influential opinions that became the corpus of constitutional law for the experiment in republican government, illuminates Marshall's views on the limits of judicial power, and counters the charge that Marshall was indifferent to, even disdainful of, precedent. The book's central theme is that John Marshall was first and foremost a jurist and expounder of the Constitution, remaining true to Madisonian principles, and cannot be charged with using his personal views to distort his legal judgment. He sought only to create an image of the Supreme Court as a disinterested umpire acting in the public interest and as a mitigating force against the pernicious effects of factional politics.
Among the influences that shaped John Marshall's judicial philosophy, the most significant, Hobson contends, was his twenty-year experience in the courts of Virginia, a time during which he became a student and practitioner of English common law and equity. As Chief Justice he essentially transposed and assimilated the common law methodology into the emerging constitutional law of the new American nation. He had benefited markedly from his practice before two of Virginia's most esteemed judges, George Wythe and Edmund Pendleton, especially the latter. What they taught and what Marshall absorbed so well was that judges in America had broad discretion in deciding cases since they had to choose from a variety of sources: English common and statutory law, acts of the colonial and state legislatures, and a growing body of American common law. More important, Marshall learned that judicial discretion was to be exercised within narrow limits and that a judge should never decide a case according to his personal sense of justice. Thus, judging was a matter of interpretation, of application, of discerning what the law is, of adapting existing rules to new circumstances, but always with the caveat that law in its pristine form was conceived to be a set of eternal and unvarying standards. According to Hobson, John Marshall never wavered from this understanding of the judge's role during his 35 years on the bench, and legal scholarship appraising his work has distorted his jurisprudence with its tendency to concentrate on constitutional cases. Only 97 of the 1235 cases decided by the Marshall court fall into the category of constitutional law, and a more comprehensive analysis of the litigation during his tenure reveals a traditional judicial outlook dedicated to preserving the distinction between legislative and judicial functions. Thus, to distill the essence of Marshall's jurisprudence, Hobson places his constitutional opinions within the broader context of statutory interpretation.
Hobson's assessment of Marshall's opinions in the great constitutional cases can be summarized as follows. Marbury v. Madison was not a bold declaration of power but simply a cementing of the concept of judicial review into American constitutional law. Contrary to myth, the Supreme Court did not use Marbury as an opportunity to assert the doctrine of judicial review, but simply restated widely accepted principles and beliefs. Moreover, Marshall entertained no claim to judicial supremacy since he believed that legislative and executive construction of the Constitution must prevail in all instances that did not take the form of a legal dispute. As set forth in Marbury, judicial review is narrow in scope and stands in sharp contrast to the status which the doctrine has acquired in the 20th century.
To explain Marshall's contract clause decisions (Fletcher, Dartmouth, Sturges and Ogden) as a product of his belief in the inviolability of property rights is "simplistic and reductionist." His view of the contract clause was, after all, consistent with that of the framers. Protection of the rights of property was one of the fundamental purposes of the Constitution, and a crabbed construction of the contract clause would not have been a fair interpretation of original intent. In reading the clause expansively, Marshall believed that he was adhering to the letter and spirit of the Constitution. It was essential that he define "impair," "obligation" and of course "contract," and in this respect he established the principle that the intention of the Constitution was embodied in its words which were to be interpreted literally unless such a construction produced a manifestly absurd or unjust result. Marshall's conclusions with respect to the meaning of the words in the contract clause were not the result of personal bias, but were the intended construction derived from an understanding of the common law and a fair reading of the constitutional text. Hobson contends that although Marshall and his fellow jurists invoked natural law and natural rights in their opinions, Marshall never used unwritten general principles to annul a law. Rather he strove to reconcile the constitutional text with natural law, and in exercising judicial review he consistently measured the statute against the standard of a written constitution.
With respect to national supremacy and states rights, Marshall's nationalism was based on the theory that the Constitution was a "constituent act" of the people of the United States and not a compact among sovereign states. In none of the prominent cases involving the juxtaposition of the national and state governments -- McCulloch, Gibbons, Cohens and Osborn -- did Marshall advocate his brand of nationalism. He formulated his conclusions only after an exhaustive investigation into the meaning of constitutional language. He presented a "masterly statement" of constitutional nationalism which enhanced federal powers, restricted the states, and asserted the Supreme Court's role as the arbiter of conflicts that inevitably arose out of the new federal system. Yet, Hobson observes, Marshall's constitutional nationalism was largely defensive in character, not designed to build a powerful national government but rather an effort to erect a protective screen against the anti-federal forces that might imperil the new American order.
In Hobson's view of Marshall's jurisprudence the pervasive theme of his opinions was his attempt to delineate the limits of judicial power, to clarify that frequently hazy boundary between law and politics. As Marshall declared in Marbury, the judicial branch disclaims "all pretensions" to decide questions "in their nature political." Courts possess no will independent of the Constitution and federal and state statutes; it is their duty to declare what the law is and not what it should be, the latter being a legislative function. In his endeavor to separate law from politics, however, he never sacrificed legal rights in order to avoid political conflict. In McCulloch he placed in Congress and ultimately on the American people much of the burden for settling the meaning of the Constitution. Never were statutes to be construed as violating natural law or the law of nations; they were to be measured against the constitutional text and to be in accord with the fundamental principles of society and government, including the natural law tradition that lay at the foundation of that text. Scholarship has often grossly exaggerated the degree to which Marshall wrote on a clean slate. He sought to bring precedent in line with principle wherever possible, but in constitutional cases he believed that appeals to extra-constitutional authority were largely irrelevant or inappropriate in deciding cases more dependent on the meaning of words than on prior case law. His constitutional universe was neither narrow nor partisan but reflected a broad consensus which embraced both the majority that approved the Constitution and the minority that accepted that decision.
Hobson underscores the crucial point that John Marshall's expansive reading of the Constitution did not lay the groundwork for the Supreme Court's judicial imperium of the 20th century. His theory of judicial review did not portend judicial supremacy. We may ask then, to what extent does the modern Supreme Court remain in the Marshall tradition? Would John Marshall have embraced substantive due process rather than rely upon the contract clause as adequate protection for property rights? Would he have accepted the concept of derivative rights, flowing from purported constitutional penumbras and emanations? Would he have agreed to invalidate laws on natural law principles that empower judges to create new rights? Would he have accepted the view that the Supreme Court can virtually write a statute in its zeal to prevent the states from interfering with a right, such as abortion, a right created by judicial fiat with no constitutional language to support it? If Hobson's observations on the jurisprudence of John Marshall are correct, the answer to all of the above is no. The modern Supreme Court has for many years rejected the cautious, limited concepts Marshall expounded and, despite its denials, has become a quasi-legislative branch of the government.
Based not only upon the prodigious output of scholarly efforts to understand and assess John Marshall and his era, but also upon a close reading of his personal papers, public and private, Hobson gives the reader a new insight into John Marshall's jurisprudential mind. His analytical treatise is written with skill, grace and a firm understanding of, and sympathy with, his subject. Perhaps a bit too much sympathy. My only quarrel with the author is his unwillingness to see any flaws in Marshall's work, scarcely a word of adverse criticism. John Marshall had his imperfections and the fact that some of his critics over the years, including fellow Federalists of his own day, had misgivings about his talents, his judicial reasoning and his motives, not all of which may have been noble and pure, does not detract from his generally wise and influential leadership in the infant American republic. On balance, however, the book sets a standard of excellence, a model for its genre, and I expect it will be, as it should be, required reading for anyone who seeks an understanding of the origins of American constitutional law, including the current justices on the Supreme Court.
