Download The Significant Marshall: A Review of Chief Justice John

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The Significant Marshall
The Significant Marshall: A Review of Chief Justice John Marshall’s Impact on Constitutional Law
Andrew Armagost
Pennsylvania State University
PL SC 471 – American Constitutional Law
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Abstract
Over the course of more than two centuries of Supreme Court decisions, no other Chief Justice
has contributed to defining and establishing fundamentals of constitutional law as John Marshall.
Inheriting a federal judiciary which lacked most of the common legal concepts found today, Chief Justice
John Marshall was an essential contribution to the development of the federal government through the
various decisions he and his fellow Justices held.
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American constitutional law, throughout more than two centuries, has been developed through
the many Supreme Court landmark cases and by some of the most profound legal scholars. Deciding
issues relating to judicial power, national supremacy, the Commerce Clause, the Necessary and Proper
Clause, the Contract Clause, and limitations of the Bill of Rights, the Marshall Court was the fundamental
institution establishing definitions and precedence for future cases. Unlike any other period of time
since the Marshall Court, their decisions created the foundations for the development of constitutional
law. Through the Marshall Court's landmark decisions in Marbury v. Madison, Martin v. Hunter's Lessee
and Cohens v. Virginia, McCulloch v. Maryland, Gibbons v. Ogden, and Barron v. Baltimore, Chief Justice
John Marshall was one of the most significant and influential contributors to American constitutional
law.
Prior to Chief Justice John Marshall’s appointment in 1801, the Supreme Court had significantly
less authority and influence on the operation of the federal government. Initially, the judicial branch of
the federal government was established by Article III, Section I, which read;
The judicial Power of the United States shall be vested in one Supreme Court and in such inferior
Courts as the Congress may from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated
Times, receive for their Services a Compensation which shall not be diminished during their
Continuance in Office.
While this section of the constitution created the federal judiciary, it was the enactment of the Judiciary
Act of 1789 by the First United States Congress that outlined the details of the court system. This act
created one Chief Justice and five Associate Justices on the Supreme Court; gave appellate jurisdiction to
the court over the circuit and district courts, the state courts which either held invalid any statute or
treaty of the United States or held valid any state law or practice that was challenged as being
inconsistent with the federal constitution, treaties, or law; created the 13 judicial districts and the
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federal district and circuit courts; and created the Office of Attorney General. This legislation was the
fundamental act of Congress which created the structure and authority of the federal judiciary.
However, the authority of the Supreme Court had not yet been fully established, despite the
enactment of the law. Under Section Two of Article III, the Supreme Court was given original jurisdiction
in certain circumstances and appellate jurisdiction in all other matters brought before the court. Yet the
complete extent to which the court had authority in original and appellate jurisdiction was not explicitly
defined and the Marshall Court would be the ultimate decision in the matter. As we will later discuss,
the Marshall Court’s landmark decisions greatly defined the authority of the court as the Justices
thought was initially intended by the authors of the Constitution. Today, these landmark decisions are
referred to as judicial review and national supremacy. By the definitions provided by the Marshall Court,
the authority and jurisdiction of the Supreme Court was more appropriately established.
During the first three years of the Supreme Court, few cases were brought before the Justices.
Under Chief Justice John Jay from 1789 to 1794, five cases were heard, all but one of which had little
significance in the operations of the federal government. The most significant case of the Jay Court was
Chisholm v. Georgia, which granted the authority to the federal judiciary to hear cases between private
citizens and a state. In response, Congress established the Eleventh Amendment, which created
sovereign immunity, prohibiting citizens of one state directly bringing suit against another state without
that state’s consent. It was later, under Chief Justice Oliver Ellsworth that the Supreme Court made the
next two influential decisions. First, in Hollingsworth v. Virginia, the Supreme Court held that the
President had no role in the ratification of a Constitutional amendment, specifically deciding on the
ratification of the Eleventh Amendment and George Washington’s role. Second, the Court exercised for
the first time its original jurisdiction between two States in New York v. Connecticut.
Near the end of John Adams’s term as President, the chief executor nominated, and Congress
approved, the appointment of John Marshall in early 1801. Arguably one of the most important
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appointments to the Supreme Court, the new Chief Justice would provide an influential and
intellectually profound philosophy to the court. Marshall’s impact, however, could surely be considered
the result of his personal and professional development. Born the eldest of fifteen to Thomas Marshall,
a farmer and leader of Fauquier, John Marshall gained his values and habits from his father’s service as
surveyor, justice of the peace, sheriff, vestryman, militia leader, and burgess of the county (Hobson,
1996). His early formal education consisted of one year at the school of Reverend Archibald Campbell
and one year under the tutoring of James Thomson. Following these two years, Marshall served as an
officer of the county militia and an officer of the Continental Army for the Virginia line.
By the end of the war, Marshall had attended lectures of Professor George Wythe at the College
of William and Mary between battles, constituting his formal education in law. Unlike most legal
practitioners at the time who commonly learned from apprenticeships, Marshall gained formal study in
law from these attendances, which most scholars suggest gave him an important advantage over others
in the profession. In 1780, Marshall was admitted to the Bar and began his private practice, which he
continued until entering politics two years later. His career in politics began by being elected to the
Virginia House of Delegates, serving from 1782 until 1789 and 1795 to 1796. During the absence of this
seat between 1789 and 1795, Marshall served as a Virginia delegate to the Virginia convention, which
was responsible for the ratification or rejection of the proposed Constitution and continued his private
practice on the side.
After serving as a delegate to the Virginia House and prior to his appointment as Chief Justice,
John Marshall was nominated and held numerous political positions. Over these years, Marshall
declined three appointments; the Attorney General of the United States, an Associate Justice of the
Supreme Court, and a minister to France. However, Marshall accepted an appointment to a commission
representing the United States in France and was elected to the United States House of Representatives
for a district in Virginia. Finally, upon the resignation of Chief Justice Oliver Ellsworth due to poor health,
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John Marshall was appointed the successor to the position of the court’s leader during the tense
Presidential election between John Adams and Thomas Jefferson.
According to Charles Hobson, John Marshall’s philosophy and definition of common law is
“human reason applied by courts, not capriciously but in a regular train of decisions, to human affairs
according to the circumstances of the nation, the necessity of the times, and the general state of things”
(Hobson, 1996). Hobson suggests that Marshall’s most important personal characteristic was that, while
he gained the scholarly experience and skills from his formal legal education, Marshall attained a
practical understanding and acquired mastery of common law principles through application and
preparation in his private practice. Thus, as Hobson might suggest, Marshall possessed a well-rounded
understanding of law that balanced what he had learned from the College with the experiences and
application within his law practice in which few others in the legal profession had developed. The
development of his knowledge in law, from formal education and practice, was fundamental to building
his philosophy and definition of common law cited by Hobson.
With well-developed legal knowledge, John Marshall led many of the court’s decisions during his
term. His leadership as Chief Justice is illustrated in the opinions of the Marshall Court and his influence
was a significant element in the cases which were of constitutional matters. Through the decisions in
Marbury v. Madison which established judicial review, Barron v. Baltimore which defined the limitations
of the Bill of Rights, and Martin v. Hunter’s Lessee and Cohens v. Virginia which established national
supremacy, the Marshall Court made important contributions to constitutional law.
The first significant decision made by the Marshall Court was Marbury v. Madison. During the
tense struggle between Federalists and Republicans, the switch from the administration of John Adams
to Thomas Jefferson was surely controversial. The Marbury case dealt with the discrepancies that arose
from this switch. In sum, the administration, after the previous administration failed to deliver
commission to William Marbury in time, decided to ignore their responsibility for delivery and instead,
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gave it to a person of Jefferson’s preference. John Marshall, delivering the opinion of the court, held
that Marbury, despite the switch from one administration to another, was entitled to his commission by
virtue of due process and had a right to remediation. However, Marshall’s most significant finding,
which established judicial review, held that Congress’s delegation of authority in granting writ of
mandamus outside of its appellate jurisdiction, given by the enactment of the Judiciary Act of 1789, was
unconstitutional and the court, therefore, denied the petition.
In establishing judicial review, John Marshall and his court decided one of the most important
cases in constitutional law. Because of the function that judicial review gave to the Supreme Court, the
judiciary had developed a significant influence in the operation of the federal government. Unlike any
other decision, Marbury v. Madison provided the Supreme Court the authority to declare an act of
Congress unconstitutional and consequently creating a voice for the court in the creation and removal of
laws by the federal government. As most legal scholars would support, Marshall’s decision marked the
beginning of the federal judiciary’s power and authority in government affairs.
According to William Nelson, the initial reactions by the public and government officials were
primarily positive (Nelson, 2000). Nelson attributes several reasons to the surprisingly positive opinion
by the people. First, there existed the perception by the public that in establishing judicial review, the
Supreme Court was removing itself from the political stream of government and the people were
supportive of a politically separate judiciary. A second reason Nelson gives notes that while this case
established judicial review to the federal courts, the legal concept of judicial review was already being
developed by the states and therefore was not relatively an original doctrine. Furthermore, Nelson
suggests that since a significant amount of Americans were property owners, the court’s ruling that the
law may serve as a protection of private property and as an actor in remediation of a violation of a
property right greatly pleased the general public.
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While Marbury v. Madison was a significant decision that established the Supreme Court’s
authority in relation to the federal government, this case was not the only of its type by the Marshall
Court. Through Martin v. Hunter’s Lessee, Cohens v. Virginia, and McCulloch v. Maryland, the Supreme
Court created national supremacy, providing the appellate jurisdiction and authority to the federal
courts in cases appealed from the states. In Cohens v. Virginia, the declaration of the federal authority
over state courts was clearly provided by John Marshall, who stated,
The constitution and laws of a State, so far as they are repugnant to the constitution and laws of
the United States, are absolutely void. …. The exercise of the appellate power over those
judgments of the State tribunals which may contravene the constitution or laws of the United
States, is, we believe, essential to the attainment of objects [of vital interest to the nation].
Unlike Marbury v. Madison, the states’ reaction to the Marshall Court’s decision was generally negative
as the states argued their sovereign immunity from federal court’s authority provided by the Eleventh
Amendment. However, the decisions in Martin, Cohens and McCulloch provided further authority to the
federal judiciary that had not been declared previously and which the states must have accepted.
The Marshall Court further developed its influence in the operations of the federal government
and made significant contributions to American constitutional law through the decision in Barron v.
Baltimore. Whereas the previous cases discussed have expanded the role of the federal judiciary and the
constitution, the court in Barron explicitly defined the limitations of the protections granted by the Bill
of Rights by holding that such rights provided protection exclusively from the federal government and
not from the states. As a result, the Baron decision provided a limitation of federal power by granting
the states authority to establish their own protections rather than imposing the Bill of Rights to the
states. The Marshall Court’s reasoning held that the text of the Bill of Rights, had the authors wanted
the application of the amendments be to the states, would have expressed such wishes within the
document’s writing. As Marshall noted in his decision, the Fifth Amendment, which was the
constitutional issue before the court, did not explicitly mention the protections granted by the Fifth
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Amendment shall be applied to the states and therefore did not provide protection unless granted by
the state.
In McCulloch v. Maryland, the Supreme Court under Chief Justice John Marshall established
precedence to issues regarding the Necessary and Proper Clause of the Constitution. Possibly one of his
most profound decisions, John Marshall defined the basic principles and authority of the federal
legislature. Although Marshall upheld the constitutionality of Congress’ establishment of a National
Bank pursuant to its powers granted by the Necessary and Proper Clause, the decision clearly
forewarned Congress that “its discretion was not boundless” (Hobson, 1996, p. 161) as to give the
federal legislature unlimited authority and assured to the people of the nation that such overstep from
its granted power was subject to the striking by the federal courts and the political discourse of the
people. One of the more significant aspects of this case, as mentioned by Ira Strauber, is that “[w]hile
ambiguity about sovereignty is inevitable, Marshall does not succumb to it; rather he uses it to confirm
Maryland’s positive-law authority while denying the appropriateness of state sovereignty theory for
describing constitutional politics” (Shevory, 1989, p. 141). Evidently, the impact of McCulloch was
significant since the decision established important precedence to the Necessary and Proper Clause as
well as greatly illustrated the insightful and magnificent legal ideology and personality of John Marshall.
The Marshall Court provided further definition and precedence to constitutional law by
addressing the Commerce Clause in the court’s decision in Gibbons v. Ogden. In this decision, John
Marshall first examined the relationship of the state and the federal government. Second, Marshall
defined commerce regarding Congress’ authority as constituting not only the buying and selling of
goods, but commercial intercourse, which intended to include all commercial relations. Finally, the Chief
Justice analyzed the extent of the commerce power in regards to ‘among the states,’ holding that
Congress’ interstate commerce power did not stop at the boundaries of the states, but rather involved
commerce between one state and another. Through this ruling, Marshall provided “prescient
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anticipation of the consolidating potential of the commerce clause” (Hobson, 1996, p. 145) through its
inherently broad scope of Congressional powers. Much like the previous cases, Gibbons further
expanded the positive authority of the federal government.
Surely, John Marshall served as one of the most significant Chief Justices of the US Supreme
Court, contributing to the creation of numerous constitutional precedents. The court’s decisions in
Marbury v. Madison, Martin v. Hunter's Lessee and Cohens v. Virginia, McCulloch v. Maryland, Gibbons
v. Ogden, and Barron v. Baltimore were relatively profound cases which defined and applied matter of
judicial power, national supremacy, the Commerce Clause, the Necessary and Proper Clause, the
Contract Clause, and limitations of the Bill of Rights. Much of these decisions would remain primarily
unchanged throughout the remainder of the nineteenth century.
Few other Supreme Court periods have had the impact on the establishment and development
of constitutional matter as the Marshall Court. However, the Chase Court, led by Chief Justice Salmon
Chase between 1864 and 1873, did also have similar significance in its decisions, particularly Ex parte
McCardle, Mississippi v. Johnson, Paul v. Virginia, and the Slaughterhouse Cases. Whereas the Marshall
Court provided significant precedence to issues of federal judicial authority and certain constitutional
clauses, the Chase Court made significant contributions through decisions regarding the authority of the
Supreme Court in issuing injunctions against the President, Congressional power to limit the Supreme
Court’s appellate jurisdiction, the Privileges and Immunities Clause, the Commerce Clause, and the
separation of powers.
Known as the Conservative Court Eras, the Supreme Court between 1889 – 1937, under Chief
Justices Fuller, White, Taft, and Hughes, was another influential period in the development of
constitutional law. Throughout this period the Supreme Court decided several important cases which
dealt with the Commerce Clause, the Taxation and Spending power of Congress, the Takings Clause, and
the Bill of Rights. In contrast to the expansion of federal power through the Marshall Court decisions,
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the Conservative Court era provided for the limitation of the federal government, favoring private
interests over government police powers. It was this court that ultimately fell to the more federalism
approach sought after during the Roosevelt administration by the effects of the notorious ‘switch in
time’. Despite the important impact the Conservative Court Era had in the development of
constitutional law, the Marshall Court provided a greater foundation in precedence and definition and
lacked the inevitable overturning that the Conservative Court would experience. Certainly, therefore,
the Marshall Court was a more significant era of Supreme Court history in establishing constitutional
law.
Herbert Johnson accurately illustrates John Marshall, stating that “[n]ot only did Marshall
establish the Court’s practice of issuing majority opinions, but his mode of analyzing constitutional
issues provided American federal law with a precise vocabulary and a clear view of what the issues
would be in defining the nature of the Union” (Johnson H. A., 1997, p. 261). Indeed, Marshall’s carefully
construed decisions were specifically drawn to meet the needs of the United States in order to properly
establish the federal judiciary as a contributor to maintaining the Union. More importantly, Johnson
appropriately characterizes Marshall’s significance in noting that, “[t]o this day, discourse about
constitutional law must begin with Marshall’s basic principles” (Johnson H. A., 1997, p. 262).
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References
Clinton, R. L. (1989). Marbury v. Madison and Judicial Review. University Press of Kansas.
Gibbons, J. (2002). Chief Justice John Marshall and Federalism. St. John's J. Legal Comment, 16, 351.
Hobson, F. C. (1996). The Great Chief Justice: John Marshall and the Rule of Law. University Press of
Kansas.
Johnson, H. A. (1997). The Chief Justiceship of John Marshall, 1801-1835. Columbia, SC: University of
South Carolina Press.
Johnson, H. A. (1998). Chief Justice John Marshall (1801-1835). Journal of Supreme Court History, 23, 320.
Jones, M. (1956). Chief Justice John Marshall: A Reappraisal. The American Historical Review, 62(1), 147148.
Kent, C., & Capehart, R. (2003). Chief justice John Marshall and state competiton for economic
development. Journal of State Taxation, 22(1), 72.
Nelson, W. E. (2000). Marbury v. Madison. University Press of Kansas.
Olken, S. (1997-1998). Chief Justice John Marshall in Historical Perspective. J. Marshall L. Rev., 31, 137.
Robarge, D. (2000). A Chief Justice's Progress: John Marshall from Revolutionary Virginia to the Supreme
Court. Westport, CT: Greenwood Press.
Shevory, T. C. (1989). John Marshall's Achievement: Law, Politics, and Constitutional Interpretations.
Westport, CT: Greenwood Press.