In today’s Washington Post, George Will notes that most of America has missed the 250th anniversary of the birth of Chief Justice John Marshall, who served as Chief Justice of the United States for 35 years.
Marshall is the most important American never to have been president. Because of his shaping effect on the soft wax of the young republic, his historic importance is greater than that of all but two presidents — Washington and Lincoln. Without Marshall’s landmark opinions defining the national government’s powers, the government Washington founded might not have acquired competencies — and society might not have developed the economic sinews — sufficient to enable Lincoln to preserve the Union.
In law school one of the first Constitutional law cases you are taught is Marbury v. Madison, which established the precedent that the Supreme Court had the authority to declare laws passed by Congress to be unconstitutional. This power is set forth nowhere in the Constitution and debate has raged in some circles over the years whether the decision was correct or not, but, in the end, it is clear that the power of judicial review is inherent in the very idea of a Supreme Court and an essential element of the system of checks and balances established by the Founders. By and large, the Marbury decision was a product of the will of Chief Justice Marshall.
And as for those who still to this day question its wisdom, Will makes this point:
Among the many recent fine biographies of America’s Founders, none is finer than Jean Edward Smith’s 1996 book “John Marshall: Definer of a Nation.” Smith locates Marshall’s greatness in this fact: Unlike Britain’s constitutional documents, which are political documents that it is Parliament’s prerogative to construe, the U.S. Constitution is a legal document construed by courts, not Congress. When judicial supervision of our democracy seems tiresome, consider the alternative.
The Marbury decision helped to solidify the idea that America is a nation of laws, not of men.
In many other respects, the cases decided during the 35 years that Marshall served as Chief Justice helped define the new republic.
The Framers’ fundamental task was to create a federal government with powers impervious to encroachments by the states. The Framers had been frightened by the states’ excesses in using political power on behalf of debtors against creditors and to limit competition by mercantilistic practices such as granting monopolies. Marshall made constitutional law a bulwark of the sanctity of contracts, the bedrock of America’s enterprise culture. And by protecting the private rights essential to aspirational individualism, Marshall’s court legitimized an inequality — not of opportunity but of outcomes — compatible with a republic’s values.
Will ends his column with in interesting piece of historical trivia:
Marshall’s life of strong, consequential prose had, Smith writes, a poetic coda. Marshall died in Philadelphia, birthplace of the Constitution into which he breathed so much strength and meaning. The Liberty Bell, while tolling his death, cracked. It never rang again.
I was in the District Friday morning for an appearance in Bankruptcy Court. As you walk the courtyard from the D.C. Superior Court building to the E Barrett Prettyman United States Court House, there stands an imposing statute of Marshall sitting like a judge of old looking out over the courtyard. One can only wonder what he would think of what has happened to the republic he helped to shape.
Linked with today’s Beltway Sunday Drive
