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The Great Chief Justice: John Marshall and the Rule of Law

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John Marshall [1755-1835] was Chief Justice of the United States for the last 34 years of his life. During his long tenure, he turned the Supreme Court from an afterthought into a primary tool for the centralization of federal power; he defined America, though we can still debate whether he got the definition right. This book details how Marshall went about his task.....

This is NOT a biography of John Marshall [see my other reviews]; it is a series of case studies which trace the expanding power of the Federal Judiciary...Marbury v. Madison established the principle of Judicial review of legislative decisions...Virginia v. Cohens asserted federal authority in state affairs...the National Bank...land titles...Indian treaties......there is still disagreement over some of Marshall's decisions, and there was hell to pay over some of them at the time. "John Marshall has made his decision; now let's see him enforce it"...the various ramifications of that statement {which Andrew Jackson MAY not have ever made} are mind boggling....

Charles Hobson is editor of The John Marshall Papers, one of the 2 or 3 greatest living Marshall scholars, and a nice guy [as was Marshall]; he has written a five star book. Do I actually recommend it? Maybe. If you are an attorney or historian with an interest in the topic, it is an absolutely essential volume. Well written, well organized; for me, it was a page turner. For the casual reader, don't waste your money, or insult Mr. Hobson. You will need a good background in either Law [not me], or history [me] to understand it.

This is an excellent, accessible, readable judicial biography of our greatest Supreme Court justice. At the same time, it is a masterly exposition of Marshall's judicial philosophy and development by one of the greatest scholars of John Marshall, the editor of the Marshall papers (and also the James Madison papers). The book is essential for understanding Marshall's thought and his contributions to the nation. Places Marshall's writings and his judicial philosophy in their historical context, stripping away the anachronistic assumptions that mar much judicial discussion of the great Marshall opinions. I disagree with the previous reviewer's statement that only historians and lawyers can understand the book; it is accessible to general readers in my opinion.

The Great Chief Justice by Charles Hobson is a biography of John Marshall focused primarily on Marshall's judicial career and decisions. It also provides a thorough description of the evolution of the American legal system that influenced the development of Marshall judicial philosophy early in his career and then was shaped by the decisions of the Supreme Court under his leadership. Hobson has produced an excellent and scholarly work. However, it is not light reading - I found myself referring to Black's Law Dictionary every few pages - so I'll digress for a brief description of two other excellent books on Marshall.

* Readers seeking a thorough description (524 pages plus notes) of Marshall's life would probably be better served reading Jean Edward Smith's John Marshall - Definer of a Nation which provides a thorough biography of Marshall's life outside the court as well as a solid description of the court's operations and decisions during his tenure as chief justice.

* Those looking for a more concise treatment (301 pages) of Marshall's career might want to consider James Simon's What Kind of Nation which describes the conflicts (philosophical, political, legal, and personal) between Chief Justice Marshall and President Thomas Jefferson who both took office in 1801. Their struggle over the interpretation of the Constitution was nearly as fundamental to the evolution of our current constitutional framework as were the constitutional convention and state ratifying conventions.

Back to Hobson's The Great Chief Justice. One of my goals in studying Marshall was to develop an appreciation of the origins of judicial review, the authority of the court to declare laws enacted by congress and signed by the president to be unconstitutional and therefore null and void. Hobson provided copious background.

Under English common law, dating back perhaps to Magna Carta (1215), judges decisions were based on precedents set by the decisions in prior cases. With a growing multitude of available precedents, the selection of the prior cases most relevant to a situation became more and more complex. Small differences in the particular facts underlying a new case required judicial discretion in the selection the relevant precedents. Different judges could easily apply their discretion to select different precedents and reach different decisions, thereby further complicating the decisions of future judges. Judicial discretion in common law was established well before the American colonies.

The concept of judicial review of the constitutionality of laws never took root in England for the simple reason that England doesn't have a written constitution. Nevertheless, the possibility of judicial review was alluded to by noted English jurists Sir Edward Coke who suggested that the common law could control the acts of parliament (case of Dr. Bonham, 1610) and Sir William Blackstone who suggested that if a statute created an unintended consequence that was unreasonable, judges could "expound the statute by equity" to avoid the consequence.

In the 169 years between Jamestown and the Declaration of Independence, bodies of case law and statutes grew up in the thirteen colonies and slowly diverged from English common law. The tradition of judicial discretion became firmly rooted in the colonies as judges sought the relevant statutes and precedents to individual cases.

The basis for most colonial laws derived from the royal charters granted by the Stuart kings when the colonies were founded. The early Stuarts (prior to 1688) viewed themselves as absolute monarchs and issued their colonial charters without reference to parliament. Typical of these charters was that of Virginia in which James I granted the colony the authority to establish its own laws (1607). The Glorious Revolution (1688) led to the removal of James II from the throne by parliament and the declaration that "The Parliament of England is that supreme and absolute power, which gives life and motion to the English government" (Earl of Shaftesbury). However, no modifications were made to the royal colonial charters which remained the basis for colonial laws. In effect, the royal colonial charters served as prototype constitutions. The conflict between the self-governing colonies and parliament's "supreme and absolute power" came to a head in the American Revolution. The colonists effectively declared that certain acts of parliament were inconsistent with the colonies rights under their royal colonial charters. In other words, such acts of parliament were declared "unconstitutional" by the Continental Congress which was the sole representative of the separate colonial governments.

Under the Articles of Confederation, the newly independent states retained complete sovereignty, including control of the only systems of courts. There was little need for judicial review of laws enacted by the Confederation Congress since the states could generally ignore them with impunity.

Within the states, however, the concept of judicial review took root prior to the framing and ratification of the US Constitution. In 1782, Chancellor George Wyeth of the Virginia High Court of Chancery observed that it was the duty of a judge "to point to the constitution [of Virginia]" and say to an overreaching legislature, "Here is the limit of your authority; and, hither, shall you go, but no further."

The basis for judicial review under the US Constitution is embedded in Articles VI and III. Article VI states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land." Implicit in this statement is the proviso that an act of congress that is not "in Pursuance" of the Constitution is not the "supreme Law of the Land." Article III states that "...the supreme Court shall have appellate jurisdiction both as to Law and Fact...". Appellate jurisdiction as to Law gives the court the authority to determine the applicability and meaning of laws to individual cases. Combining this authority with the text quoted above from Article VI convinces me that the court would be justified in declaring an act of congress that conflicted with the Constitution to be "not the law supreme law of the land", null and void, unconstitutional.

Now we can jump forward to 1803 and the Marbury versus Madison decision of the Marshall Court. I won't summarize the case here but do plan to do so in my review of James Simon's book cited at the beginning of this review. In that decision, the court held that the Judiciary Act of 1789 had granted original jurisdiction to the Supreme Court in cases other than specified in Article III, Section 2, of the Constitution. Since that paragraph of the Constitution goes on to say that in all other cases the Supreme Court shall have appellate jurisdiction, the section of the Judiciary Act granting expanded original jurisdiction conflicts with the Constitution. In Marbury vs Madison, the court declared that portion of the Judiciary Act unconstitutional.

This was the first time that the Supreme Court had declared an act unconstitutional. Marshall was exceptionally sensitive to the possible repercussions and wisely chose the case in which to assert the court's authority of judicial review. Negating the relevant section of the Judiciary Act reduced the authority of the Supreme Court itself, but had no direct impact on congressional or presidential authority.

Hobson paints a vivid picture of why Marshall's sensitivity was warranted. In the years from 1798 to 1801, the nation went through the most traumatic political turmoil in its history (with the exception of the Civil War). This was the time of the Alien and Sedition Acts which were enacted in response to the quasi-war with France and the attempts of the French minister to the US, "Citizen" Genet, to arouse the American people against their government. These Acts were blatantly unconstitutional. The Alien Act gave the president authority to deport any non-citizen based only on his judgment, with no justification required, and without any form of due process. The Sedition Act declared criticism of the president or congress a crime and enabled the government to fine or jail US citizens. These acts were passed by the Federalist controlled congress and signed by President Adams. Vice President Jefferson and the Republican party took strenuous exception to these acts. Jefferson and James Madison covertly drafted documents that became the Kentucky and Virginia Resolutions which challenged the constitutionality of the acts and, in the case of Jefferson's draft of the Kentucky Resolution, declared them null and void within that state. (Jefferson's draft was provided to John Breckenridge who softened the language slightly before submitting it to the Kentucky legislature.) Meanwhile, all federal judges at the time were Federalist appointees, many of whom took on highly active and partisan roles in enforcing the acts on Republican defendants. Supreme Court Justice Samuel Chase, the only Supreme Court Justice ever impeached (but not convicted), was known to tell juries in these cases that a defendant's attempt to prove the truth of his criticisms was, in fact, evidence of his guilt under the Sedition Act. It is no wonder that Jefferson referred the Federalist controlled government (president, congress, and courts) collectively as "the reign of witches".

The federal judiciary, including the Supreme Court, was suffering from self-inflicted wounds when Marshall, another Federalist, was appointed Chief Justice by the lame duck President Adams and confirmed by the lame duck Federalist Senate. Marshall, to his eternal credit, devoted himself to avoiding further political turmoil and restoring the reputation of the courts.

In fairness to the author, I must add that the above review only covers the first half of his book. The topics which follow (property rights and the contract clause, national supremacy and states' rights, limits of judicial power) depend so heavily on the Marbury decision that I feel that I've covered the most important points. And, this review is already too long. My thanks to anyone who reads this far.

The Great Chief Justice: John Marshall and the Rule of Law. By Charles F. Hobson. (Lawrence: University Press of Kansas, 1996. 256 pp. ISBN 0-7006-0788-9. Call no. KF8745.M3 H63 1996)

In The Great Chief Justice Charles F. Hobson applauds John Marshall for legitimizing the Constitution and for his model service in the United States Supreme Court from 1801-1835. Hobson states, Marshall as chief justice "solidified the practice of judicial review by adapting the methods of common law interpretation to the task of expounding the constitution." As evidence of Marshall's greatness, the author investigates the "great cases" in combination with his early private practice in Virginia. Since 1979 Charles Hobson has researched and edited The Papers of John Marshall and is well versed in Marshall's entire life, both biographical and judicial. Hobson asserts, "His masterly opinions laid the foundations of our constitutional law and furnished a set of principles that continue to animate it."

Chief Justice begins with a brief biography of Marshall and an explanation of his record of public appointments and positions in chapters one and two. Hobson points out the Chief's home state of Virginia had an anti-federalist majority and this political scene influenced him to be non-political in nature. While practicing there, Hobson asserts, Marshall observed the lack of education in the judiciary circles around him. This void of knowledge drove him to be versed in all types of law doctrines including common, natural, ecclesiastic, merchant and royal laws from Europe. Hobson feels all this training, observation and education permitted him a mindset of an "independent-minded jurist" that helped him find a keen sense of power within the courtroom.

Chapters three and four investigate the province of judicial review and the power of the contract clause in the Marshall court. Hobson calls Marbury v. Madison (1803) Marshall's first great opinion, setting precedent for the court's power over legislative powers within the nation. With this decision, Marshall assured the U.S. government was, "a government of laws, and not of men." Hobson claims there were three goals Marshall attained with the Marbury case; 1) a defense of the judiciary branch as independent of government, 2) to resist states encroachment on the Federal government, and 3) to protect private rights from infringement of governmental acts. Marshall's reading of the contract clause in Article 1 Section 10 of the Constitution was in the spirit of the rights of the people. Hobson explains how Marshall felt the general language used by the framers was their way of embracing future evils not yet known. Marshall read the contract clause expansively and until the Fourteenth Amendment was enacted, the contract clause served as the court's chief weapon in preserving private people from encroaching state legislators.

Chapters five, six and seven articulate Marshall's other great cases and opinions. Hobson highlights the Cherokee cases as Marshall's only involvement in a political disagreement with disastrous outcomes. The presidency of Andrew Jackson was a time of great upheavals in the Nation, and the Marshal court attempted to interject natural laws to save the tribe from annihilation. Hobson assures us Marshall did all he could in Worcester v. Georgia but the President would not ease on the policy of Indian suppression. In the end, Marshall's use of precedents and his discrete construction of laws revolutionized our legal system as we have come to know it, but did little to save the Cherokee peoples from removal. Charles F. Hobson gives us a human picture of a founding father, someone who can be related to and admired at the same time.

Chief Justice Marshall was a leader when the country needed a strong forward thinking Chief Justice of the Supreme Court. The rule of law might not have happened without his long stay on the bench. This is an excellent book that delved into his decision making thought process on a variety of cases. Not a bio-but more legal and decision making thought process. In addition to his famous cases, many lesser known, but precedent setting cases. Not being a lawyer, I appreciated the book for going into the parts of law that are meaningful for me as a business owner and for the thought process to make the decisions. He made sure that the Supreme Court was not a pawn of either party or of either the other two branches of the government. It was worth my while and well researched.

"The Great Chief Justice" is a fascinating, clearly-written intellectual biography of John Marshall, the Supreme Court's greatest Chief Justice. If a book about Constitutional history can be described as "lovely," then this is it.

Marshall led the Court in 1801-35, when the Constitution was still young and its meaning still up for grabs. He was a a brilliant legal craftsman who forged a "nationalist" jurisprudence that conferred broad powers on the federal government and gave the last word on Constitutional interpretation to the federal judiciary. "The Great Chief Justice" unveils the legal logic behind this jurisprudence, moving back and forth between the details of court cases and the big picture of Anglo-American legal history and early 19th-century American politics.

The book is the best place to turn for an introduction to Marshall's legal thought. Highly recommended. Six stars!