WILL Blog | Taylor: The Most Important American Never Elected President

Published on: July 6, 2016

The Most Important American Never Elected President

During a recent trip to Richmond, Virginia, I made a brief stop at the longtime residence of Former Chief Justice of the United States Supreme Court John Marshall, located in downtown Richmond.  The residence is now owned and managed by Preservation Virginia and open to the public.  Marshall was born on September 24, 1755 and died 181 years ago today, July 6, 1835, making today a fitting opportunity to consider his legacy.

Marshall was the fourth and, to date, longest serving Chief Justice, occupying that position thirty-four years, from 1801-1835.  Preceding Marshall as Chief Justice were three men, John Jay, John Rutledge, and Oliver Ellsworth, all of whom – despite their qualifications and patriotism – did little to shape the Court as an institution or independent force in the new Republic.  That role fell to Marshall who helped define concepts and assumptions taken for granted today.

Marshall had a profound impact on our fledging nation through his myriad roles as citizen, soldier, lawyer, legislator, statesman, and jurist, such that columnist George Will labeled him as the most important American never elected President.  While not without flaws, Marshall takes the stand next to George Washington, James Madison, and a few others as one of the most influential statesmen in our Nation’s early history.

At age twenty, Marshall began service in the revolutionary army where he served six years, including battles at Brandywine, Germantown, and Valley Forge where he served alongside George Washington.  Marshall left the military in 1780 to study law and undertook one year of formal legal training at the College of William and Mary.  He then applied for admission to the Virginia Bar which, at that time, required a petition to the governor and subsequent oral examination by two practicing attorneys.

In 1787 Marshall ran successfully for the Virginia House of Delegates.  In 1788 he was subsequently elected as a Delegate to the Virginia Convention to debate ratification of the federal constitution.  It was through his role as a Delegate that Marshall would begin to receive the exposure and acclaim that would propel his career forward.  The Constitution was in trouble in Virginia, with passage by no means guaranteed.  One of the nation’s most powerful orators, Patrick Henry, allied against Marshall and the other pro-ratification Delegates.  At a key point in the debate, Marshall undertook an expansive explanation and defense of Article III of the proposed constitution, pertaining to the judicial power.  While lacking the bravado of Henry or the renown of James Madison, Marshall nevertheless undertook a defense of Article III that was relentless in scope and imminently well-reasoned.  His defense played a significant role in the Virginia’s ultimate ratification of the Constitution by a vote of 89-79.

Over the next ten years Marshall concentrated on his law practice, operated out of his home in Richmond.  Marshall engaged in the general practice of law with a focus on representing debtors and creditors trying to recover or avoid payment on pre-revolutionary war debts.  In 1797, Marshall was chosen by President Adams as one of three emissaries to France, charged with negotiating various controversies between the two nations.  The Mission to Paris, which became known as the “XYZ Affair” after the code names for French Foreign Minister Talleyrand’s three intermediaries, was unproductive and exceptionally frustrating for Marshall.  In Paris, Marshall and his fellow ambassadors confronted the manipulative and mercurial Talleyrand who refused to formally receive the Americans until they paid him a bribe and guaranteed a loan to the French Government to help finance their war against England.  Ultimately Talleyrand’s machinations would leak out in the American press, leading to disintegration of public support and a quick weakening of the French position and ultimate agreement to all of Marshall’s original terms.

In 1799 Marshall was elected by Virginians to the U.S. House of Representatives.  His sole term in Congress would be interrupted in 1800 when President Adams nominated him to be Secretary of State.  One year later Adams nominated him to be Chief Justice of the Supreme Court, a post he would hold until his death in 1835.

Marshall was an effective moderator of his fellow justices, dispensing with seriatim opinions where each justice wrote separately in favor of majority opinions which judges joined, or dissented from.  Realizing that his colleagues had their own perspectives which, in the end, Marshall could not command, Marshall led by persuasion and consensus building.  Aiding Marshall in his efforts was the justices’ shared living arrangements, including common meals and drinks during which they discussed and decided cases.

Marshall’s formal legal education of one year was limited by today’s standards.  However, with his year of formal training Marshall combined decades of practical experience as a lawyer, elected politician, ambassador, litigant, and government official.  Scholars have not always agreed that Marshall possessed a keen intellect, with earlier generations of biographers claiming his mind was not particularly strong.  These views have been refuted, however, with the consensus now being that Marshall possessed an acute intellect and legal mind.  But what emerges from Marshall’s life and study of his opinions, more than an encyclopedic grasp of the law, is wise judgment, proper application of principles to facts, appreciation of context, and an awareness of the Court’s role.

An example of this is Marshall’s most famous opinion, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).  When Marshall resigned his position as Secretary of State to become Chief Justice in 1801, James Madison, appointed by Thomas Jefferson, eventually took Marshall’s place.  Prior to Marshall’s departure and before President Adams’ term ended, Adams signed numerous commissions for federal judges and justices of the peace, including William Marbury’s commission to be Justice of the Peace in the District of Columbia.  Although Marshall signed it, Marbury’s commission was not delivered prior to Marshall leaving office or the end of Adams’s term, so the delivery was left to James Madison.  Jefferson refused to honor the commission so Madison never delivered it.  Previously, Congress had enacted and President Washington had signed the Judiciary Act of 1789, granting the Supreme Court original jurisdiction to issue writs of mandamus to persons holding office, under the authority of the United States.  Marbury filed suit in the Supreme Court demanding the Supreme Court issue a writ of mandamus to compel delivery of his commission.

In his opinion, Marshall held the following.  1) Marbury had a right to his commission as it had been lawfully executed and signed.  2)  The law granted Marbury a remedy, since every individual inflicted with a wrong has the right to claim protection of the laws.  3) The Supreme Court has authority to review acts of Congress and determine if they are constitutional.  4) Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond that specified in the Constitution, as the Judiciary Act of 1789 had done.  5) Therefore, the Supreme Court cannot issue the writ of mandamus Marbury seeks.

Through his reasoning and the structure of his opinion, Marshall established the enduring principle of American jurisprudence that, “It is emphatically the duty of the Judicial Department to say what the law is.”  Although other branches of the federal government may, at times, interpret the Constitution, the Judicial Branch’s interpretation must prevail.  But Marshall’s opinion also steered clear of the political question staring the Court in the face – i.e. could the Court actually make the President deliver the commission?  Marshall avoided that question by ruling that the Court had no authority to issue the writ in the first place.  In other words, the result of Marshall’s opinion was to establish the Supreme Court’s superiority in interpreting the Constitution and their authority to judge the constitutionality of federal laws, without requiring the Court, in the present case, to do anything.

Commentators on justices and the courts often chide jurists for confusing or conflating law and politics, adamantly noting that the job of the court is to interpret and apply the law and be apolitical.  While correct up to a point, it is also true that the law in general and the Constitution in particular are themselves political.  There are political compromises, constructs, checks and balances built into the law, such that courts and jurists necessarily act within a political framework.  Marshall understood this, as Marbury illustrates, and his political instincts informed his understanding of the Court’s role as well as his opinions.

Marshall can be seen as the reluctant jurist and public figure.  He eschewed public office early in his career to establish his law practice, refusing numerous appointments to federal and state office before he finally agreed to his appointment as Secretary of State.  He had the gift of personality and character.  He was well-liked wherever he went (except perhaps in France), and a popular social figure and host.  His rhetoric lacked the flash of Patrick Henry or the solemnity of James Madison.  But when he talked, people listened.  They were overcome by his logic and presentation, and most of the time they were persuaded.  His persuasion was not through force of gavel or position, but through appeal.

Above all, perhaps, Marshall’s professional identity and aspirations were intertwined with the success of the young Republic itself.  He had risked his life, been wounded, and delivered some of his finest oratory to ensure its establishment.  His tenure on the Supreme Court was the final chapter in his efforts to ensure the Nation’s success.  As such, he carried out in the Supreme Court what George Washington carried out as Commander of the Continental Army and during his eight years as President – Marshall helped define a nation.

Perhaps this is what we have most to learn from Chief Justice John Marshall.  He saw the Nation’s legacy as his legacy, and it was for the nation that he spent his best energy and most productive years of his life.  Marshall has been described as a man who almost always did the right thing and almost always made the right decisions.  His ability to do so was a result of his integrity, temperament, and commitment to a purpose larger than himself.  As such, he is a man worthy of emulation by modern day lawyers, jurists, and statesman.