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David E. Johnson

Irreconcilable Founders: Spencer Roane, John Marshall, and the Nature of America’s Constitutional Republic Hardcover – May 12, 2021

by David Johnson (Author)

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Virginians dominate the early history of the United States, with Washington, Jefferson, Madison, Monroe, Patrick Henry, George Mason, George Wythe, and John Marshall figuring prominently in that narrative. Fellow Virginian Spencer Roane (1762–1822), an influential jurist and political thinker, was in many ways their equal. Roane is nonetheless mostly absent in accounts of early America. The lack of interest in Roane is remarkable since he was the philosophical leader of the Jeffersonians, architect of states’ rights doctrine, a legislator, essayist, and, for twenty-seven years, justice of the Virginia Supreme Court. He was the son-in-law of Henry, a confidant of Jefferson, founder of the influential Richmond Enquirer, and head of the “Richmond Junto.”

Roane’s opinions established judicial review of legislative acts ten years before Supreme Court Chief Justice Marshall did the same in Marbury v. Madison. Roane also brought down Virginia’s state-sponsored church. His descent into historical twilight is even more curious given his fierce criticism―both from the bench and in the Richmond Enquirer―of Marshall’s nationalistic decisions. Indeed, the debate between these two judges is perhaps the most comprehensive discussion of federalism outside of the arguments that raged over the ratification of the United States Constitution.

In Irreconcilable Founders, David Johnson uses Roane’s long-lasting conflict with Marshall as ballast for the first-ever biography of this highly influential but largely forgotten justice and political theorist. Because Roane’s legal opinions gave way to those of Marshall, historians have tended to either dismiss him or cast him as little more than an annoying gadfly. Equally to blame for his obscurity is the comparative inaccessibility of Roane’s life: no single archive houses his papers, no scholars have systematically reviewed his legal opinions, and no one has methodically examined his essays. Bringing these and other disparate sources together for the first time, Johnson precisely limns Roane’s career, personality, and philosophy. He also synthesizes the judge’s wide-ranging jurisprudence and analyzes his predictions about the dangers of unchecked federal power and an activist Supreme Court. Although contemporary jurists and politicians disregarded Roane’s opinions, many in today’s political and legal arenas are unknowingly echoing his views with increasing frequency, making this reappraisal of his life and reassessment of his opinions timely and relevant.

Print length

258 pages
Language

English
Publisher

LSU Press
Publication date

May 12, 2021
Dimensions

6 x 0.75 x 9 inches
ISBN-10

0807174807
ISBN-13

978-0807174807
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Editorial Reviews

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We have reached a point in American history where the federal government wields a disproportionate influence over American life, and where the federal Supreme Court is the all-powerful voice interpreting the Constitution. In this splendid, lucid, and concise treatment of the life and jurisprudence of one of our great neglected state judges, Virginia’s brilliant and irascible Spencer Roane―son-in-law to Patrick Henry and nemesis of Chief Justice John Marshall―David Johnson limns a competing tradition in American Constitutional thought that just might offer a crucial corrective to our current Constitutional quandaries. -- Stephen B. Presser, author of "Law Professors: Three Centuries of Shaping American Law"

This is an excellent work, and one that the American constitutional historians have been awaiting for about 100 years. We all know about Marshall's disagreements with Roane, which were of fundamental significance, and we know all about Marshall, the person. But who was Spencer Roane? This biography gives a well-balanced understanding of who he was and what his constitutional ideas were -- W. Hamilton Bryson, editor of "Virginia Law Books: Essays and Bibliographies"

About the Author

David Johnson graduated from the College of William & Mary and the University of Richmond School of Law. He serves as a judge of the circuit court of Chesterfield County and is the author of John Randolph of Roanoke. He and his wife live in Midlothian, Virginia.

Product details

Publisher ‏ : ‎ LSU Press (May 12, 2021)
Language ‏ : ‎ English
Hardcover ‏ : ‎ 258 pages
ISBN-10 ‏ : ‎ 0807174807
ISBN-13 ‏ : ‎ 978-0807174807
Item Weight ‏ : ‎ 1.2 pounds
Dimensions ‏ : ‎ 6 x 0.75 x 9 inches

Best Sellers Rank: #448,532 in Books (See Top 100 in Books)
- #221 in Legal History (Books)
- #403 in General Constitutional Law
- #903 in U.S. Revolution & Founding History

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Excellent Book

Reviewed in the United States 🇺🇸 on September 16, 2022

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This is an excellent, short, readable book about a largely forgotten, but important historical judge, Spencer Roane. Judge Johnson does a superlative job of condensing and simplifying complex legal principles. His insights foster a great understanding of John Marshall, the importance of his decisions, and the context in which they were made. Obviously Spencer Roane thought our nation should go in a different direction.

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Ronald H. Clark

The other side of McCulloch v. Maryland

Reviewed in the United States 🇺🇸 on June 25, 2021

Verified Purchase

This is a biography of Spencer Roane (1762-1822), a constitutional theorist and Virginia Court of Appeals judge who led the opposition to John Marshall's decisions supporting enhanced federal power. Most expressly, the two engaged in a newspaper war over McCulloch v. Maryland, which validated the idea of implied powers. While Roane today is not much spoken of, he was the leading proponent of the Constitution as a contract between the states and the concept of states' rights. So he is an important figure, but there was only one major biography prior to this book, Margaret E. Horsnell, "Spencer Roane: Judicial Advocate of Jeffersonian Principles" (1986). By recent standards, where bios run on for 500 or more pages, this concise volume at 236 pages gets the job done expeditiously without sacrificing quality. The author is a Virginia circuit judge.

The author concisely sketches Roane's education, focusing on his studies at William & Mary under that master of Virginia law and mentor of Jefferson and Madison and so many other outstanding Virginia lawyers, George Wythe. His early career as a supporter of disestablishment and service in the privy council and state senate are also covered. An entire chapter is devoted to Roane's explosive temper, which was in evidence at the Virginia ratification convention. Roane preferred authority kept by the states, and distrusted other delegates, like Madison and Marshall, who advocated substantial federal power. Nonetheless, at the very early age of 25 he was appointed to the Virginia judiciary. There he handled an important case anticipating judicial review.

The heart of the book involves Roane's warfare with Marshall's decisions, particularly the McCulloch decision which employing Hamiltonian arguments upheld the constitutionality of the Bank of the U.S., and thereby validated implied powers through the "necessary and proper" clause. Roane authored a series of newspaper articles skillfully attacking Marshall's reasoning; the Chief Justice replied in several anonymous articles of his own. Many scholar argue that McCulloch was the most important decision in American legal history. While the author well covers Roane's arguments, I think he was mistaken not to devote equal attention to Marshall's contentions. Cf. "John Marshall's Defense of McCulloch v. Maryland," edited by Gerald Gunther (1969, Stanford). He later attacked another Marshall decision holding that federal courts had the final say on interpreting federal law, including another series of newspaper articles. While Roane adhered to a states' rights orientation, the author is careful to state that he never did so relating to slavery, though he was a slave holder.

So Roane while wrong is nonetheless an important figure in American constitutional jurisprudence and deserving of more attention. Hopefully, this volume will contribute to that re-examination. The text is supported by 29 pages of notes, a bibliography and table of cases. Not a pleasant individual; but a crucially important one.

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stevo

Include Spencer Roane as a founder worth knowing.

Reviewed in the United States 🇺🇸 on November 5, 2021

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Include Spencer Roane as a founder worth knowing.

One person found this helpful

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Joe Ben House

Forgotten Figure That Needs to be Noticed

Reviewed in the United States 🇺🇸 on April 9, 2022

Irreconcilable Founders: Spencer Roane, John Marshall, and the Nature of America’s Constitutional Republic by David Johnson is published by Louisiana State University Press.

I imagine that I have come across the name Spencer Roane during my years of reading. However, I had no conscious memory of the name or the man. And the name of John Marshall is large and bold in the outlines and teachings of American history and government.

Sometimes, it is the less known person, the second fiddle, who really plays a critical role in events. Sometimes, it is the case of the minor figure who saw events more clearly than the well-known names. I have discovered many such men and women in history who don’t get the shout-outs, the references, the honors due to them.

With just a few minor changes here and there, Spencer Roane could have been well remembered. He could have and probably should have been on the Supreme Court. He was occasionally mentioned as a Vice Presidential candidate, although that is no pathway to certain fame. There were those who also thought he was of Presidential timber. But the “What If’s” of history cannot be substituted for the actual events.

Roane’s political life was found in the Virginia Supreme Court. His major writings were opinions that were usually objections to the national Supreme Court’s ruling under John Marshall. Roane’s causes were the “Lost Causes” of Jeffersonian rule, States Rights, limited government, and judicial restraint. He opposed the ratification of the Constitution for the same reasons that many wise men of his day did. The “Anti-Federalists” have to take the side of the British in the War for Independence, Mexico in the Mexican-American War, the Confederacy in the Late Unpleasantness, and others who lost the battles or issues of their day.

It is easy enough to generalize American history as a progress where things got better and better. There is lots of progress in history. It is easy enough to see a destiny, manifest or unfolding, where America does prove to be a light on a hill for all the world to see. Both liberals and conservatives today point to particular events as evidences of right overcoming wrong, And people will gleefully sing of “God’s truth marching on” in the context of America’s actions.

But such rosiness is not usually good history. Nor is it good or accurate commentary on the present situation. Spencer Roane railed, wrote, and argued for a restraint of our judiciary that speaks to issues still being battled over today.

Just yesterday, a new justice to the Supreme Court was confirmed. It takes no insight to know that she will embrace John Marshall’s vision far more than that of Spencer Roane. And I might suggest that she could no more explain Roane than she could explain what a woman is.

This is yet another book, like the two reviewed above, that is more relevant than today’s headlines. Thankfully, a biography of Roane (a short 120 pages, with an additional 70 pages of his writings) will broaden knowledge of the man. I can hope that from this academic study, Roane’s presence in our country’s history and ideas will start seeping into more minds and causing his name to get a host of mentions. I hope future history teachers will learn of him earlier than I did.

Many thanks to my friend, Gordon “Koty” Arnold, one of the brightest young scholars I know, for calling my attention to this book.

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