Saturday was the 250th anniversary of the birth of Chief Justice John Marshall, who was, without question, the greatest Chief.
Marshall was a Virginian and a hero of the American Revolution. He was an outstanding lawyer. And during his 34 service on the High Court, he demonstrated his Solomon-like legal wisdom.
There was no shortage of tributes paid to the Chief Justice this weekend. But I’d like to draw your attention to three in particular, and I’ve added my own thoughts at bottom.
First, Matthew Franck’s heart-felt post over at Bench Memos urges readers to take up a glass of Madeira and drink a toast to the Chief. As a man who shares Prof. Franck’s affinity for Madeira, I was all too glad to do so.
Second, make sure to read this Washington Times op/ed by Professors David Marion and Roger Barrus, both of historic Hampden-Sydney College. They highlight an often overlooked element of the Chief’s jurisprudence and his non-legal writings: his belief in the importance of the “people’s virtues.”
Marshall’s reputation as the greatest and most influential of America’s judges has obscured the fact Marshall assumed his duties as chief justice in 1801 amid charges the institution he would lead had been radically politicized by Federalists like President John Adams, who appointed him. Thomas Jefferson and many of his followers — the “Republicans” of the day — questioned whether a Marshall court would adequately protect the democratic rights and liberties of the people. The Alien and Sedition Acts, passed in 1798, were taken as conclusive proof of the Federalists’ antidemocratic tendencies.
In short, the political climate in 1801 was not all that different from the present, as Democrats and Republicans square off over qualifications of candidates for judicial offices and even more over the role of the federal courts in government.
The situation then and now bears out Alexander Hamilton’s observation that the judicial branch, dubbed by him as the “weakest” of the departments, would be critically important to preserving the bona fides of the republic.
Marshall and Jefferson were political opponents but were in complete agreement that the success of self-government required the intellectual and moral development of the American people. For people to be able to govern themselves politically, they must be able to govern themselves individually.
Unwilling to leave much to chance, Marshall engaged himself in shaping the nation’s cultural climate. His biography of George Washington was manifestly an exercise in civic education. His commitment to civic education was in evidence as early as 1784, when he joined James Madison, James Monroe, and others to form the Virginia Constitutional Society, established to provide instruction in vital matters of public interest.
Here there is a profound difference between Marshall and his jurisprudence on the one hand and many contemporary jurists on the other. The attention Marshall devoted to the people’s virtues in his writings is notably absent in much contemporary jurisprudence. A recognition of the constitutional significance of culture does not appear in the decisions that have defined the right of privacy out of emanations from penumbras around a number of constitutional amendments.
Perhaps the 250th anniversary of Marshall’s birth will lead to a reconsideration of his jurisprudence, which was much more respectful of the role of religion in public life because it was informed by a recognition of the importance of character and culture in democratic self-government.
I am glad to benefit once again from the professors’ insight, as I did so many times during my time at Hampden-Sydney. Indeed, if I know anything of Constitutional law, it due only to Dr. Marion’s year-long course as well as his patience and expertise. (But the logical blunders and errors of argument are all mine.)
Third, is columnist George Will’s own tribute to the Chief. Will’s column, as usual, is beautifully written, so I am glad to let it speak for itself. Take a moment and read it all.
For my own part, I’ll add this personal note. Growing up in Richmond, Virginia, it seemed that everyone could readily trace their lineage to George Washington, Thomas Jefferson, or James Madison. (And if one could find George Washington in the family tree, that also got you Robert E. Lee Ã?Â¢Ã¢â??Â¬- a twofer that led to no end of bragging.) I was never able to point to such star-power in my own family tree. But I never much cared. That’s because at a young age, one of my wiser relatives told me that the great Chief Justice lurked in our past and took the time to explain why that was important.
I recall learning that John Marshall had helped to ensure that ours would be a nation of laws, where the law protected the citizens. And I learned that his contribution was critical to building a nation that would preserve the test of time.
This led me to a simple conclusion: there are many figures from American history that are better known that the Chief Justice. But it’s hard to argue that many were more important.
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