John Marshall — American Patriot, from battlefield to Supreme Court and beyond

Robert Cotner


R

obert Frost once observed, “The Founding Fathers didn’t believe in the future…they believed [the future] in.”1 Frost was absolutely correct: the men and women of the Revolutionary era believed America into being through deeds of war, in bold acts of independence, and by constitutional ratification.

One of the key figures of this era was John Marshall (1755-1835), whose life spanned the early years of the nation — from the battlefields of Brandywine and Valley Forge to the Supreme Court, where the shape of the Constitution was wrought into what we know to be the America of today.

Marshall began military training at the age of 18. “In the summer of 1775,” he wrote, “I was appointed a first lieutenant in a company of minute men designed for actual service.”2 Marshall served in the Continental Army for five years, closing out his military career as a captain and as deputy judge advocate on Washington’s staff — although he “relished the title ‘general’ that he subsequently earned in the Virginia militia.”3

Twenty-five years later, while Chief Justice of the Supreme Court, Marshall wrote his historic biography of George Washington, who became, through his service under Washington in the Continental Army and as neighbor to Washington in Virginia, Marshall’s mentor in all things political and legislative. In this biography, he gave one of the few first-hand accounts of the Revolution and a personal view of Washington, which influenced later biographies by Washington Irving and others. Jean Edward Smith reports that Marshall’s “war was not vindictive, and America’s enemies were not evil. Generosity, faith in the United States, and an even-handedness toward friend and foe characterized the wartime volumes of Marshall’s biography of Washington.”4

It fell to Marshall, in the course of his long life, to interpret for the nation what the Revolution and the new Constitution meant to forth-coming generations of Americans. Appointed by John Adams in one of the final acts of his administration, Marshall became Chief Justice of the Supreme Court in 18015 and served in that capacity until his death in 1835. It is instructive to realize that Marshall maintained the longest, and one of the most important intellectual engagements in American history, longer than that of any other American before or after him. He could well be ranked as one of Howard Gardner’s “Extraordinary Minds.”6

The diverse intellectual capabilities of John Marshall, using Gardner’s multiple-intellect analysis,7 reveal a person of rich and broad intellectual endowments. Of the seven intelligences delineated by Gardner, Marshall possessed four to a significantly high degree. Physically, he was gifted. Evidence of this physical prowess became obvious during the war years. As he traveled from the battle sites of the Revolution around Philadelphia, to his home in Richmond, VA, it was customary for him to walk the 250 miles, usually taking three weeks for the journey.8 As a competitor in camp contests, Smith says, Marshall was outstanding: “He excelled as a runner and according to numerous accounts he was the only man in the Continental Army who could high jump over six feet — a remarkable achievement in any era.”9 Standing six-feet-three-inches tall, he could have been, according to Marshall house docent E.L. Butterworth, an Olympic athlete in two sports.10 His bodily-kinesthetic gifts — to use Gardner’s terminology — served him well, as he was active and keen until his death.

Linguistically and logically, Marshall distinguished himself in the monumental, five-volume biography of George Washington (1805-1807) and the superb court documents he produced throughout his lifetime. From the earliest to the latest, he was a craftsman of the English language, expressing opinions with such care and skill that even opponents were often silenced with the opinions rendered. An early defining example is Marbury v. Madison (1803). In this case, all of the crosscurrents of American political life came into play in a situation pitting an Adams appointee to the federal court against Jefferson’s Secretary of State, James Madison.

James Simon, in What Kind of Nation, presents the case with clarity and power, detailing the masterful manner in which Marshall delivered the opinion for the majority: “With the extraordinary display of his judicial craft in Marbury, the chief justice had solved his, and the Court’s, looming political problem with the Jefferson administration. He had managed to lecture Jefferson and Madison on their executive responsibilities without giving them or the Republican Congress serious cause to attack him or his institution… But although Marshall had satisfied the Republicans’ short-term interests by rejecting Marbury’s claim, he had purchased an enormous piece of constitutional real estate for the Court. Marbury v. Madison established the Court’s authority to declare an act of Congress unconstitutional, a power that would prove to be of historic significance in securing the institution’s parity with Congress. Marshall’s opinion also served notice that the Court, not the president, would be the ultimate judge of claims of executive privilege, an authority of seismic proportions.”11

Newmyer comments on the Marbury opinion as well: it established “that the Court was first and foremost a legal institution whose procedures set it apart from and above the political branches.”12 In Newmyer’s view the power of Marshall’s intellect established the Court and the rule of law in America: “More than any other institution that competed for power and the respect of the American people during the early Republic, the Court under Marshall embodied the first principle of republican government that law, not men, should rule. It was a principle associated unavoidably with the intent of the Framers.”13

How, one might ask, did John Marshall, whose formal legal education consisted of classes between May 1 and August 28, 1780, at the College of William and Mary in Williamsburg, VA, under Professor George Wythe, achieve the unequaled success that he achieved?14 Beyond his extraordinary gifts of language and logic, one must cite his, to use Gardner’s term, high inter-personal intelligence. Smith observes that, as a Revolutionary soldier under most adverse conditions, Marshall “never complained, and when his fellow officers showed their discouragement, Marshall did his utmost to cheer them up.” One soldier wrote of him at this time, “He was an excellent companion, and idolized by the soldiers and his brother officers, whose gloomy hours were enlivened by his inexhaustible fund of anecdotes.”15

This interpersonal intelligence developed over the years and became the central ingredient in the great achievement of the Marshall Court. Meeting as they did in those days, in a small basement room of the U.S. Capitol, the Supreme Court justices accommodated themselves to the spartan conditions by, under Marshall’s leadership, living in the same boarding house and taking all of their meals together. These daily gatherings provided, again under the magnanimus and intelligent guidance of Marshall, a forum for deliberation and debate. The justices often came to consensus around the boarding house table. Newmyer defines interpersonal intelligence implicitly, observing that Marshall exerted his leadership of the Court by “maintaining a rational environment for debate, where the diverse talents of his colleagues could be utilized and where complex and unsettled legal questions could be disputed openly, fairly, and free of the partisan rancor that characterized foreign-policy debates in the political branches. In harnessing the justices to the legal work at hand, he succeeded admirably.”16

Even as the Supreme Court diversified, particularly during the presidency of Andrew Jackson, Marshall forged important decisions by his growing authority and his gifts of camaraderie in the human circle. Newmyer concludes, “Marshall’s ability to mobilize the majority and to speak for it, even when the justices composing it were not in perfect accord, was the hallmark of his chief justiceship.”17

A recent Supreme Court ruling in a 5-4 decision (Federal Maritime Commission v. South Carolina State Ports Authority, May 28, 2002) begins with this startling oxymoron, written by Justice Clarence Thomas: “Dual sovereignty is a defining feature of our nation’s constitutional blueprint.” “Divided sovereignty” was Marshall’s term for what Thomas seems to be saying. Thomas continues: “States, upon ratification of the Constitution, did not consent to become mere appendages of the federal government. Rather they entered the union ‘with their sovereignty intact.’”18

Thomas and his colleagues would have a difficult time with John Marshall ‘s view of “states’ rights,” expressed repeatedly in his 34-year tenure, but never more clearly than when he wrote these oft-quoted lines: “The American states, as well as the American people, have believed a close and firm union to be essential to their liberty and to their happiness. They have been taught by experience, that this union cannot exist without a government for the whole, and they have not been taught by the same experience, that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty, which belongs to independent states. Under the influence of this opinion, and thus instructed by experience, the American people, in the conventions of their respective states, adopted the present constitution.”19

If we have “dual sovereignty,” as Thomas asserts, the Supreme Court is no longer supreme, and the union of states under the Constitution may be in danger. This looms as one of the greatest threats from the Court in these days — to define itself out of existence. This issue was fought in Marshall’s favor through the American Civil War, which, in its proper light, must be seen as an extension of the American Revolution.

Another dimension — or extension — of the Marshall court and issues from the early Republic have to do with the corporate world of America. Through several key decisions, the Marshall court created and empowered the American corporation. What Marshall did not fully comprehend, and what seems not to be comprehended to this day, is that capitalist America is part and parcel of democratic America, and that Abraham Lincoln’s words, “of the people, for the people, by the people”— words adapted by Lincoln from Marshall’s writing — pertain to Americans as working people, consumers, and stockholders as well as voting citizens. Whether the corporation shall come to honor “the people” in its broad activities or create a new aristocracy by placing massive wealth in the hands of a few by virtue of their placement in the corporate hierarchy is yet to be resolved. As leader of the emerging market-nations, America is called upon to complete its revolution and place the people first and foremost in all concerns — social, political, and economic.

In the ongoing conflicts and their resolutions, Americans would do well to remember John Marshall and his believing into being of America — a process without end. Newmyer helps understand the great Chief Justice in these words: “More than [Alexander] Hamilton and perhaps more than the Framers themselves, [Marshall] was positioned to make ideas count. Creativity was not his forte; creative application was.”20 That, and a range of intellectual gifts, united with grace and dignity in the person of John Marshall, gave America singularity of being called union and inheritance of law called nation.

End notes

1 Interviews with Robert Frost, edit. Edward Connery Lathem, New York: Holt, Rinehart and Winston, 1966, p. 271.

2 Jean Edward Smith, John Marshall — Definer of a Nation, New York: Henry Holt and Co., 1996, p. 44. The second chapter of this book, “Soldier of the Revolution,” pp. 37-69, gives a fine account of the young Marshall’s work in George Washington’s army.

3 Smith, p. 68.

4 Smith, p. 69.

5 David McCullough, John Adams, New York: Simon & Schuster, 2001, pp. 560ff.

6 Howard Gardner, Extraordinary Minds, New York: Basic Books Inc., 1997. In this important study, Gardner creates four categories of “Extraordinary Minds”: the Master, the Maker, the Introspector, and the Influencer. Marshall, while capable in several categories, would be most significantly recognized as an “Influencer.”

7 Howard Gardner, Frames of Mind — Theories of Multiple Intelligences, New York: Basic Books, Inc., 1983, While Gardner’s analysis has had great influence in American and world pedagogy, it has seldom been used as a tool in understanding historical figures. Knowing the rich personal history of John Marshall, brought to light in the biographies of Albert J. Beveridge (The Life of John Marshall in four volumes, 1916-1919), and, more recently, by Jean Edward Smith and R. Kent Newmyer, such an analysis is both possible and, I trust, profitable.

8 Smith, p. 68.

9 Smith, p. 74.

10 E.L. Butterworth, in a tour lecture at the Marshall home, June 28, 2002.

11 James F. Simon, What Kind of Nation, New York: Simon & Schuster, 2002, p. 187.

12 R. Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court, Baton Rouge: Louisiana State University Press, 2001, p. 402.

13 Newmyer, p. 480.

14 Smith, pp. 70-86.

15 Smith, p. 64.

16 Newmyer, p. 275.

17 Newmyer, p. 403.

18 “Excerpts From Justices’ Ruling in Sovereignty Case,” The New York Times, May 29, 2002, p. A14.

19 Newmyer, pp. 367-368.

20 Newmyer, p.302.

























John Marshall

A hand-tinted, crayon- drawing of John Marshall, done in Richmond, VA, in 1808, when Marshall presided over the trial of Aaron Burr for treason. The artist was an exiled French military officer, Saint- Memin. Engraving by J.H.E. Whitney. Used through the courtesy of American Heritage Engravings, Alexandria, VA.

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