Posts Tagged ‘positive law’

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.


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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Cardinal George of Chicago is one of the Catholic Church’s sharpest thinkers and clearest voices on the relationship of law and culture in the United States today. I am working my way through his new book, God in Action: How Faith in God Can Address the Challenges of the World, and will occasionally post excerpts.

When American law was mostly common law, as it was when Holmes addressed his Boston listeners, its relationship to culture was harmonious, because the law was almost wholly derivative from the culture. The common law was conceived of as the distillation of shared practice, of culturally common activities. The law was not any judge’s say-so or even the say-so of the judiciary as a body; judicial declarations counted, rather, as so much evidence of the law. The law remained the common practices of the people, discerned more or less adequately by judges but not made or determined by them.

. . .

We live in an age of statutes, administrative rules, executive orders, treaties, and judicial decisions conceived differently—more creatively and more like legislation—than was the common law. Law characteristically is, for us, the purposive ordering of norms, first imagined, debated, and then given life, once and for all, on a certain date, down at city hall, up in the statehouse, or in a court in Washington, D.C. All these forms of law, these enactments, bind by dint of someone’s or some institution’s authority, not by dint of prior custom and practice. The modern relationship between law and culture is therefore fragile, more complex and problematic.

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