John Marshall is usually ranked as the most significant judicial figure in the history of the United States. Based on the number of recent works devoted to Marshall, there appears to be a renewed interest in his life and career. These works include a new edition of The Papers of John Marshall (ten volumes to date), Jean Edward Smith’s 1996 full biography that is especially good on Marshall’s private life, and excellent studies of his jurisprudence by Charles Hobson (1996), Herbert Johnson (1997), G. Edward White (1991), and Robert Lowry Clinton (1989). Building on this scholarship, R. Kent Newmyer’s objective was to produce an “interpretative biography” that combines a traditional narrative approach with a “study of Marshall’s jurisprudence.” The result is the most sophisticated one-volume treatment to date, full of mature insights and controversial theses about Marshall’s judicial ideas and decisions.
The biography begins with an examination of Marshall’s early years within the context of the American Revolutionary era. Influenced by a father who supported the revolutionary cause, Marshall at the age of twenty took up arms against the British in the 1775 battle of Great Bridge in Virginia. Even at this time, there is evidence that he was motivated primarily by a concern for the constitutional principles of “rights and liberties.” Marshall was already well acquainted with the British legal tradition, especially the common law as summarized in the writings of William Blackstone. Marshall later wrote that the revolution was not a struggle “against actual oppression,” but that it was “a war of principle against a system hostile to political liberty.” Newmyer finds that the war provided him with an education in constitutional principles and that his decision to participate in the war was his “first great constitutional decision.”
Following the war, Marshall was elected a member of Virginia’s legislature, where he became highly critical of its narrow localism. Marshall himself wrote that “the general tendency of state politics convinced me that no safe and permanent remedy could be found but in a more efficient and better organized general government.” Unhappy with the limited powers of the central government under the Articles of Confederation, he strongly argued in favor of the Constitution at the Virginia ratification, declaring that it would create “a well regulated Democracy.” Like other leading Federalists, Marshall acknowledged that the people were the ultimate source of national sovereignty, although he doubted that they had the virtue and wisdom to govern directly. Newmyer observes that the tension between these two ideas would always be a central problem in his jurisprudence.
Large chunks of Newmyer’s book are necessarily devoted to Marshall’s judicial opinions while serving as chief justice. Newmyer provides detailed analysis of the major cases, especially the three that were the most influential: Marbury v. Madison (1803), when the Supreme Court for the first time held that a congressional statute was unconstitutional, McCulloch v. Maryland (1819), which upheld the Bank of the United States and overturned a state tax on the bank, and Gibbons v. Ogden (1824), which ruled that Congress had the ultimate power to regulate interstate commerce. As an authority in constitutional law, Newmyer does an excellent job in choosing which cases to emphasize. Occasionally, however, he fails to provide sufficient explanation about the background to a few influential cases, such as Barron v. Baltimore (1833), which held that the Bill of Rights was not binding on the states.
Newmyer refers to the long debate between Marshall and Jefferson as “A Grand Creative Hatred,” in which each man fired the creative genius of the other. Their most fundamental disagreements involved federalism and the role of the courts. The chief justice believed that Jefferson wanted to subvert the rule of law, while Jefferson feared judicial tyranny and subversion of the legitimate powers of the states. Newmyer looks upon the Marbury decision as the chief justice’s first victory to put the rule of law over partisan politics, and in the impeachment trial of Samuel Chase and the treason trial of Aaron Burr he finds that Jefferson “came off as impetuous, vindictive, and self-righteous.”
Among the numerous components within Marshall’s constitutional jurisprudence, Newmyer argues...
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