Richard Nisley


John Marshall, on his birthday
History - American Released - Sep 17, 2017

September 24 is John Marshall’s birthday. By nearly all accounts, John Marshal is our greatest Supreme Court Chief Justice. A goodly number of his words issued from the bench have been chiseled in stone, but he was anything but a marble man, as the following will attest. It’s a letter to his to wife written while riding circuit in South Carolina:

Raleigh Jany 2nd 1803

“My dearest Polly

“You will laugh at my vexation when you hear the various calamities that have befallen me. In the first plan when I came to review my funds, I had the mortification to discover that I had lost 15 silver dollars out my waist coat pocket. They had worn through the various mendings they had sustained & sought their liberty in the sands of Carolina.

“I determined not to vex myself with what could not be remedied & ordered (our son) Peter to take out my clothes that I might dress for court when to my astonishment & grief after fumbling several minutes in the portmanteau, staring at vacancy & sweating most profusely he turned to me with the doleful tidings that I had no pair of breeches. You may be sure this piece of intelligence was not very graciously received; however, after a little scolding I determined to make the best of my situation & immediately set out to get a pair made.

“I thought I would be sans culotte only one day . . . but not a tailor in town could be prevailed on to work for me. . . . I have the extreme mortification to pass the whole time without the important article of dress I have mentioned. I have no alleviation of this misfortune but the hope that I shall be enabled in four or five days to commence my journey homeward & that I shall have the pleasure of seeing you & our dear children in eight or nine days after this reaches.

“In the meantime I flatter myself that you are well & happy.

“Adieu my dearest Polly

I am your ever affectionate

J. Marshall”

John Marshall was born in a log cabin on the Virginia frontier in 1755, and never left home until he joined Washington's army. He was home-schooled by his strong-willed father, who rose to prominence in local and state politics. There was a copy of Alexander Pope’s “Essay on Criticism” in the little cabin, and Marshall all but memorized it. Later on he got a few months’ legal lectures at the College of William and Mary—that was all. He married, settled permanently in Richmond, and by character and brilliance rose to prominence in the bar. He served briefly as secretary of state under John Adams; Adams then appointed him chief justice of the Supreme Court. Years later, Adams wrote: ”My gift of John Marshall to the people of the United States was the proudest act of my life.”

At the time of Marshall’s appointment (1801), the Supreme Court was supreme in name only. It met in a dank, cramped 24-by-30-foot committee room in the basement of the Capitol building. The nation’s highest court had little power, and was despised by President Thomas Jefferson. How did Marshall make the Judicial Branch of government the equal of the Executive and Legislative Branches? By picking a Constitutional issue so trivial as to seem ridiculous, and decided it in a way that gave Jefferson a "victory" while asserting the court's own right to overthrow acts of Congress that conflicted with the United States Constitution. This was Marbury v. Madison (1803), the landmark case that established the precedent of Judicial Review.

MAKING CONVERTS

There followed a series of decisions that cemented the rule of law, the sanctity of property, the corporation clothed like an individual, the rights of expanding U.S. capitalism, and the supremacy of the federal government. Politically motivated decisions? Jefferson thought so. He appointed judges of different persuasion to the court, only to have the charismatic Marshall make converts of them all. Marshall made their living arrangements in the backwoods capital a kind of cozy bachelor's club, where the judges lived, ate, and studied court cases together. The pleasant atmosphere coupled with Marshall's humor and congeniality discouraged bitter disagreement. As new judges replaced old, Marshall won them all over, confounding the presidents who appointed them.

For 35 years, and five presidential administrations, John Marshall’s was the voice of the Supreme Court. Marshall rarely cited cases. He launched his opinions as though they were inevitable deductions from self-evident propositions. When a legal precedent was called for, he would ask Justice Joseph Story—a renowned legal scholar—to find the appropriate citations. “There, Story; that is the law in this case; now go and find the authorities.”

“By a few opinions—a mere handful—he gave institutional direction to the inert ideas of a paper scheme of government. . . . His opinions had the persuasiveness of compelling simplicity.” — Justice Felix Frankforter

“There fell to Marshall perhaps the greatest place that was ever filled by a judge.” — Justice Oliver Wendell Holmes

“He exercised a magnetic force on his Court contemporaries and on his time. All greatness has a historical reference, a context. The question is what a man does with it. It is hard to envisage any other judge doing as much as Marshall did, and with his unmistakable flourish of grandeur.” — Max Lerner, professor, syndicated columnist, and author

MARSHALL ETCHED IN STONE

“We must never forget that it is a Constitution we are expounding.”

“This provision is made in a Constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

“It is emphatically the province and duty of the judicial department to say what the law is . . . If two laws conflict with each other, the courts must decide on the operation of each. . . . This is the very essence of judicial duty.”

“Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”

“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”

“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

- END -
Copyright © 2012-2017 Richard Nisley - All Rights Reserved.