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Having recently solicited critical comments on a draft paper, I enjoyed reading John Marshall’s comments to an author who had sent him a copy of his book on political economy:

I have read your ‘Thoughts on Political Economy’ with great attention and pleasure, and am gratified that an American has taken up the subject. It is not less important than abstruse, and presents perhaps as many questions, the solution of which, on full investigation, will be different from our impressions on a first view, as any science whatever. You have thought upon it profoundly, and if I am not sure that every proposition you law down is entirely accurate, I am convinced that many are, and that all deserve consideration.

Ltr from John Marshall to Daniel Raymond, Sept. 25, 1821.

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I had the privilege recently of attending a faculty seminar sponsored by The John Marshall International Center for the Study of Statesmanship at University of Richmond’s Jepson School of Leadership Studies. The discussion leader for the seminar was R. Kent Newmyer. The opportunity to learn about Marshall from Newmyer and the other participants in the seminar (including Charles Hobson and Robert Faulkner) was a highlight of the academic year. While I suspect that the conversations from this seminar will be generative for a time to come, I think it worthwhile now to reflect for a moment on one of the final topics of discussion: John Marshall’s greatness.

Is Marshall’s kind of greatness still achievable? That is a difficult question with other difficult questions nestled inside and growing out of it. My tentative answer is conditional: Marshall’s kind of greatness is achievable if one believes in law the way that he believed in law.

Marshall’s greatness was inseparable from his belief in law. But what does it mean to believe in law in this way? Justice Story, who knew and loved Marshall deeply, drew on the language of worship in discussing Marshall as a lawyer:

He loved the law as a science, and not as a trade; and felt the full dignity of being a minister at its altars. He deemed himself under deep responsibility, not to his client alone, but to the court, and to the cause of public justice. . . . He argued for the law, and with the law, and from the law.

Source: Joseph Story, Life, Character, and Services of Chief Justice Marshall: A Discourse Pronounced on the 15th of October, 1835, at the Request of the Suffolk Bar, in The Miscellaneous Writings of Joseph Story 639, 687-88 (William W. Story, ed.).

Story uses the similar imagery of ministering at the altars of Justice in describing Marshall as the nation’s Chief Magistrate:

Yes, this great and good man was all, that we could ask, or even desire for the station. He seemed the very personation of Justice itself, as he ministered at its altars–in the presence of the nation–within the very walls, which had often echoed back the unsurpassed eloquence of the dead, of Dext, and Pinkney, and Emmett, and Wirt, and of the living also, nameless here, but whose names will swell on the voices of a thousand generations. Enter but that hall, and you saw him listening with a quiet, easy dignity to the discussions at the bar; silent, serious, searching; with a keeness of thought, which sophistry could not mislead, or error confuse, or ingenuity delude; with a benignity of aspect, which invited the modest to move on with confidence; with a conscious firmness of purpose, which repressed arrogance, and overawed declamation. You heard him pronounce the opinion of the Court in a low but modulated voice, unfolding in luminous order every topic of argument, trying its strength, and measuring its value, until you felt yourself in the presence of the very oracle of the law.

Source: Joseph Story, Life, Character, and Services of Chief Justice Marshall: A Discourse Pronounced on the 15th of October, 1835, at the Request of the Suffolk Bar, in The Miscellaneous Writings of Joseph Story 639, 692 (William W. Story, ed.).

Looking back at these statements from almost 180 years ago, there are many challenges to adopting the same perspective toward Marshall that Story had toward him. Not least of these is the difficulty of entering into the understanding of law that Marshall and Story possessed. In his eulogy address, Story describes Marshall as ministering at the altars of law at one point, and ministering at the altars of Justice at another point. And one of the most challenging aspects of Marshall’s constitutional thought to understand is the relationship between positive law and natural justice. (For a sense of the complications, take a look at Marshall’s dissent–his only dissent in a constitutional case–in Ogden v. Saunders, 25 U.S. 213 (1827).)

Another difficulty is understanding their perspective toward the Supreme Court as an institution. The talk of altars and the echoes of eloquent advocates might conjure to mind today’s Marble Temple. But that building was not completed until a century after Marshall’s death.

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The Supreme Court’s current webpage “The Court Building,” opens with a statement that links the Republic’s “faith” with the Supreme Court’s importance:

“The Republic endures and this is the symbol of its faith.” These words, spoken by Chief Justice Charles Evans Hughes in laying the cornerstone for the Supreme Court Building on October 13, 1932, express the importance of the Supreme Court in the American system.

By the 1930s, however, conceptions of law had changed significantly from the time of Marshall. The Court finally had a temple to the rule of law, but did the Justices still share the faith of their fathers? I do not know. But I completely reject the false faith later professed in the plurality opinion of Planned Parenthood v. Casey:

Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.

Planned Parenthood v. Casey, 505 U.S. 833, 868 (1992) (Opinion of O’Connor, J., Kennedy, J., & Souter, J.)

In this linking of the Court’s sociological legitimacy with “the character of a Nation of people who aspire to live according to the rule of law,” we see a danger in traveling too far down one path pursued in establishing John Marshall’s greatness. An appreciative admirer of Joseph Story, there is nevertheless appropriate caution in Professor Newmyer’s statement that “Story appreciated Marshall almost to the point of idolatry.” (Heroic Age at 407) That caution is the recognition of a need to stop short of idolatry in appreciating any great man. Newmyer explains that “Story and other antebellum mythmakers laid the foundation of [Marshall’s] enduring fame” “[b]y fusing Marshall with the Supreme Court and the Court with the Constitution.” (Heroic Age at 470) After rejecting Casey‘s false faith, we must retrieve the orthodoxy of a rule of law and not of men. And for that, we need a grand reaction, a great fission.

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The Chief Justiceship of the United States is a station full of perplexing duties, and delicate responsibilities, and requiring qualities so various, as well as so high, that no man, conscious of human infirmity, can fail to approach it with extreme diffidence and distrust of his own competency. It is the very post, where weakness, and ignorance, and timidity must instantly betray themselves, and sink to their natural level. It is difficult even for the profession at large fully to appreciate the extent of the labors, the various attainments, the consummate learning, and the exquisite combination of moral qualities, which are demanded to fill it worthily.

Joseph Story, Life, Character, and Services of Chief Justice Marshall: A Discourse Pronounced on the 15th of October, 1835, at the Request of the Suffolk Bar, The Miscellaneous Writings of Joseph Story (William W. Story, ed., 1852) 639.

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In answering the Republican claim that jurisdiction over the murder committed by Thomas Nash (aka Jonathan Robbins) against a foreign citizen on a British ship was established by arraignments in a federal court in Trenton, Congressman John Marshall argued:

It has also been contended that the question of jurisdiction was decided at Trenton, by receiving indictments against persons there arraigned for the same offence, and by retaining them for trial after the return of the habeas corpus.

Every person in the slightest degree acquainted with judicial proceedings, knows that an indictment is no evidence of jurisdiction; and that, in criminal cases, the question of jurisdiction will seldom be made but by arrest of judgment after conviction.

The proceedings, after the return of the habeas corpus, only prove that the case was not such a case as to induce the Judge immediately to decide against his jurisdiction. The question was not free from doubt, and, therefore, might very properly be postponed until its decision should become necessary.

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After President Adams extradited Thomas Nash (aka Jonathan Robbins), whom the British then executed, Republicans criticized the President on the grounds that he had usurped judicial authority because extradition was regulated by treaty, and “the Constitution of the United States declares that the Judiciary power shall extend to all questions arising under the Constitution, laws, and treaties, of the United States.” 10 Annals of Congress 533 (1800) (quoting a Republican resolution for censuring the President).

Congressman John Marshall’s defense of the Administration’s actions includes a penetrating discussion of the limited power of the federal judiciary. Marshall argued that the decision whether to extradite Nash “was a case for Executive and not Judicial decision.” 10 Annals of Congress 605 (1800). The report of his floor speech continues:

He [Marshall] admitted implicitly the divisions of powers, stated by the gentleman from New York [who had offered the resolution censuring the President], and that it was the duty of each department to resist the encroachment of the others.

This being established, the inquiry was, to what department was the power in question allotted?

The gentleman from New York had relied on the second section of the third article of the Constitution, which enumerates the cases to which the Judicial power of the United States extends, as expressly including that now under consideration. Before he examined that section, it would not be improper to notice a very material misstatement of it made in the resolutions, offered by the gentleman from New York. By the Constitution, the Judicial power of the United States is extended to all cases in law and equity, arising under the Constitution, laws, and treaties of the United States; but the resolutions declare that Judicial power to extend to all questions arising under the Constitution, treaties, and laws of the United States. The difference between the Constitution and the resolutions was material and apparent. A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the Judicial power extended to every question under the Constitution, it would involve almost every subject proper for Legislative discussion and decision; if, to every question under the laws and treaties of the United States, it would involve almost every subject on which the Executive could act. The division of power which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the Judiciary. But it was apparent that the resolutions had essentially misrepresented the Constitution. He did not charge the gentleman from New York with intentional misrepresentation; he would not attribute to him such an artifice in any case, much less in a case where detection was so easy and so certain. Yet this substantial departure from the Constitution, in resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. It manifested the course of reasoning by which the gentleman had himself been misled, and his judgment betrayed into the opinions those resolutions expressed. By extending the Judicial power to all cases in law and equity, the Constitution had never been understood to confer on that department any political power whatsoever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.

A case in law or equity proper for judicial decision may arise under a treaty, where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. As under the fourth or sixth article of the Treaty of Peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States; or, as would be an article, which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the Judicial power cannot extend to political compacts; as the establishment of the boundary line between the American and British dominions; the case of the late guarantee in our Treaty with France, or the case of the delivery of a murderer under the twenty-seventh Article of our present Treaty with Britain.

The gentleman from New York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign government? Permit me, said Mr. M., but not triumphantly, to retort the question. By what authority can any court render such a judgment? What power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal, yet they must possess it, if this article of the treaty is to be executed by the courts.

(1o Annals of Congress 606-07 (1800) (emphasis added))

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