John Marshall

by Harlow Giles Unger

  As the Court was to reconvene in Washington a few weeks later, Justice Story found the Chief Justice in his hotel room in tears, still inconsolable over his wife’s death. He confessed to Story of crying each night.

  “It was the will of God,” he sobbed, “to take to itself the companion who had sweetened the choicest part of my life . . . the woman I adored. From the hour of our union . . . I never ceased to thank heaven for this its best gift. . . . I have lost her!”34

  As Marshall’s wife had lain dying, President Andrew Jackson easily won reelection to a second term, and when the time came the Chief Justice, still bereft over the loss of his wife, administered the oath of office to the President for a second time. Jackson tried consoling Marshall. He too had lost his wife—shortly before his first inauguration.

  In the vicious campaign that preceded Jackson’s first election to the presidency, opposition newspapers alleged that Jackson’s wife had entered into an adulterous relationship with Jackson before she had divorced her first husband and married the President. Shocked by what she read, she collapsed—a stroke perhaps, or a heart attack. She died several days later and was buried on Christmas Eve without seeing her husband assume the presidency.

  AFTER JACKSON HAD SWORN TO “PRESERVE, PROTECT, AND DEFEND” THE Constitution a second time, South Carolina’s legislature stunned the President and the nation by passing a law echoing Jefferson’s belief in a state’s right to nullify federal laws it deemed unconstitutional. It declared a federal tariff law on imports “null, void, and no law, nor binding” upon South Carolina.* Two states—South Carolina and Georgia—now stood in defiance of the federal government. The Union was dissolving.

  “The laws of the United States must be executed,” President Jackson raged, then signed a Proclamation against Nullification that remains one of the most important presidential acts in American history.

  “My duty is emphatically pronounced in the Constitution,” he stormed. “I have no discretionary power on the subject.”

  I consider the power to annul a law of the United States assumed by one state, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed. . . . Those who told you that you might peaceably prevent the execution [of federal laws] have deceived you. . . . Their object is disunion. But be not deceived . . . disunion by armed force is treason. Are you really ready to incur its guilt?35

  The President ordered Treasury Department cutters—later called the Coast Guard—into Charleston Bay to enforce the tariff law. South Carolina’s legislature responded by authorizing the governor to call out the militia and, if necessary, draft able-bodied men between the ages of eighteen and forty-five. It appropriated $200,000 for military preparations for civil war.

  The President, in turn, called on Congress for a Force Bill, authorizing him to use federal troops and ships to crush South Carolina’s rebellion. After Congress enacted token tariff reductions as a sop to the South, officials from other southern states condemned South Carolina’s Nullification Act, with Alabama’s legislature declaring it “dangerous.” Mississippi charged South Carolina with “reckless precipitancy,” and Georgia’s legislature surprised the nation (and the South Carolina legislature) by calling the Nullification Act “rash and revolutionary.”

  With that, South Carolina yielded, postponing for twenty-eight years the Civil War it would eventually thrust on the nation at Fort Sumter. After forcing South Carolina to retreat on nullification, Jackson convinced Georgia’s governor to submit to the Supreme Court order for Reverend Worcester’s release. The state legislature agreed to repeal the law that led to Worcester’s arrest, and the governor ordered his release and that of his fellow missionary.

  President Jackson’s recognition of his obligation and that of all Presidents to enforce Supreme Court decisions cemented the court’s foundation as the third coequal branch of the American government. Instead of resting in legal oblivion, Worcester v. Georgia emerged as one of the Supreme Court’s most important cases, ensuring military support, if necessary, to enforce its decisions as supreme laws of the land.

  “Who would have dreamed of such an occurrence,” Justice Story wrote to his wife about President Jackson. “The Chief Justice and myself have become his warmest supporters.”36

  BY 1835 ASSOCIATE JUSTICE WILLIAM JOHNSON HAD DIED AND GABRIEL Duvall had grown deaf and resigned—each of them replaced with Jacksonians who might have radicalized the Court. Like the Jeffersonians before them, however, they immediately fell under Marshall’s spell. The Court and its decisions remained as centrist as Marshall himself—at one and the same time liberal and conservative in the literal sense of both words. They protected and preserved individual liberties that did not infringe on the liberties of others or cross the line between liberty and license. They sustained and conserved the spirit of the Constitution “to form a more perfect union.”

  Late in June 1835 Marshall collapsed on his daily walk to Polly’s grave, two miles outside of town. He had been suffering from liver disease for some time. His youngest son, Edward—like his brothers, a farmer on the family’s Fairfax lands—took him to Philadelphia to Dr. Physick. His oldest son, fifty-one-year-old Thomas Marshall, was on his way to join them when a thunderstorm erupted, forcing him to take shelter. When a bolt of lightning hit the building, its chimney collapsed and killed him. Edward withheld the news from his father.

  John Marshall died six days later, on July 6, 1835, two months short of his eightieth birthday, the last but one of the heroic Men of Monmouth.

  Edward Marshall and John Marshall’s other surviving children buried the Chief Justice next to their mother in Richmond’s Shockhoe Hill Cemetery. Until Polly’s death, Marshall had planned to retire with her at his boyhood home at Oak Hill, near the farms of his sons and grandchildren, but her death left him feeling so utterly alone that he spent his last days and hours visiting her grave.

  “John Marshall died last Monday,” John Quincy Adams wrote in his diary a few days later.

  He was one of the most eminent men that this country has ever produced. . . . Marshall has cemented the Union which the crafty and quixotic democracy of Jefferson had a perpetual tendency to dissolve. Jefferson hated and dreaded him. . . . Marshall, by the ascendency of his genius, by the amenity of his deportment and by the imperturbable command of his temper, has given a permanent and systematic character to the decisions of the Court, and settled many great constitutional questions favorably to the continuance of the Union.37

  Marshall’s colleague Associate Justice Joseph Story delivered a eulogy to the Chief Justice in Boston, asking, “When can we expect to be permitted to behold so much moderation united with so much firmness, so much sagacity with so much modesty, so much learning with so much experience?”

  Ambition never seduced him from his principles . . . amid the extravagances of party spirit. . . . If we were tempted to say in one word what it was in which he chiefly excelled other men, we should say in wisdom. . . . The Constitution, since its adoption, owes more to him than to any other single mind. . . . Whether it lives or perishes, his exposition of its principles will be an enduring monument to his fame.38

  Aaron Burr Jr. outlasted Marshall and the other heroic Men of Monmouth. After years of practicing law successfully but unobtrusively, Burr died in New York, on Staten Island, on September 14, 1836. He had no heirs, but the faculty, students, and alumni of Princeton College, led by a military band and a color guard, buried him with full military honors at the foot of his father’s and grandfather’s graves in Princeton Cemetery.

  James Madison, the last living member of the Virginia Dynasty, died a few weeks before Burr, on June 28, 1836.

  ON APRIL 12, 1861, SOUTH CAROLINA’S STATE MILITIA OPENED FIRE on federal defenses at Fort Sumter, in Charleston Harbor, setting off a civil war that would claim more than 600,
000 American lives. New England’s Nathaniel Hawthorne lamented to a friend, “We were never one people and never really had a country.”39

  Although Chief Justice John Marshall did not live to see the outbreak of civil war, he sensed its approach. “I yield slowly and reluctantly to the conviction that our Constitution cannot last,” he admitted to his friend Associate Justice Joseph Story in 1832. “The case of the South seems to be desperate. Our [Supreme Court] opinions are incompatible with a united government.”40

  For once, however, Supreme Court Justice John Marshall’s opinion proved wrong. The Constitution would not only last; the Marshall court decisions would prove so compatible with a united government that two centuries later—despite civil war and four presidential assassinations—both the Union and Constitution remain in place, sustaining what is now the oldest system of self-government in the history of man.

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  * The state seizure of Dartmouth College did not involve eminent domain or state seizure of private property for public use. At the time the state granted the charter to Dartmouth College it could have established a public institution but instead signed a contract, or charter, with the trustees of the college to establish a private college. The Supreme Court, therefore, did not rule on any question of eminent domain but on the state’s breach of its contract.

  * The number of states at the time.

  * Considered the “father of American surgery,” Dr. Philip Syng Physick (1768–1837) lived in a Federal-style house (Physick House) that can still be visited on Fourth Street in Philadelphia. His name became a synonym for the practice of medicine in America and, later, for purgatives designed to cleanse the body of illness.

  * To protect cotton mills in the Northeast, Congress had imposed tariffs on foreign textiles. Southern cotton growers feared England, the biggest manufacturer and exporter of finished cotton goods—and biggest buyer of raw cotton from the American South—would retaliate by imposing tariffs on southern cotton.

  Appendix

  Nine Great Cases of John Marshall’s Supreme Court

  JOHN MARSHALL’S SUPREME COURT HANDED DOWN 1,180 DECISIONS OVER thirty-five years, with Marshall writing 549 of them. Many formed the foundation of American constitutional law. They established the Supreme Court as supreme arbiter of the Constitution and American laws and the federal judiciary as the third coequal branch of the federal government with the executive and legislative branches.

  Above all, Marshall’s Court gave the American people—“We the people”—a means of redress against tyranny by federal, state, and local government. Scholars may disagree about which were the most important decisions and argue—correctly—that the following list omits many important ones. One renowned constitutional scholar lists more than 200 such cases.1 This miniscule compendium, however, is arbitrary and entirely personal—the prerogative of an author. Far from all-inclusive, it includes the first decisions in three key areas: establishment of federal government sovereignty over the states, protection of individual rights against arbitrary government actions, and recognition of the US Supreme Court as “supreme in the exposition of the law of the Constitution,” as Chief Justice Marshall phrased it. These are the Supreme Court decisions that transformed all other Supreme Court decisions into “the supreme law of the land.”2

  Marbury v. Madison (1803)

  The case: Appointed justice of the peace by President John Adams, William Marbury asked the Supreme Court for a writ of mandamus to force Secretary of State James Madison to deliver Marbury’s commission and allow him to assume his post as a justice of the peace. The Court ruled that Madison (and President Jefferson) had violated the Constitution by withholding Marbury’s commission but that the federal law allowing Marbury to demand a writ of mandamus from the Supreme Court was unconstitutional and, therefore, void. It was the first time the Supreme Court declared an act of Congress unconstitutional.

  What it did: Established Supreme Court power of judicial review to void federal laws as unconstitutional. The Court also denied the President authority to remove a federal judge from the bench.

  United States v. Peters (1809)

  The case: Pennsylvania’s state legislature passed a law voiding a federal Continental Prize Court award to a privateer. The Marshall Court declared the legislature’s action—and the law it passed—unconstitutional, effectively upholding the supremacy of federal courts over state courts and voiding state claims to sovereignty in areas the Constitution placed under the jurisdiction of the federal government.

  What it did: Established Supreme Court powers to review and void state laws and state court decisions as unconstitutional. It asserted the supremacy of federal over state authority for the first time.

  Fletcher v. Peck (1810)

  The case: John Peck sold Robert Fletcher 15,000 acres of Indian lands that Peck and other speculators had bought at below-market prices by bribing Georgia legislators. When a reform legislature passed a law canceling the sales, the Court voided the law as a violation of Article I of the Constitution, which prohibits states from passing “any law impairing the obligation of contracts.” The court regretted the corruption that underlay the transactions but said it did not represent a basis for violating the Constitution.

  What it did: Affirmed inviolability of contracts between individuals and between governments and individuals.

  Martin v. Hunter’s Lessee (1816)

  The case: During the Revolution land speculator David Hunter had purchased a 739-acre tract from the Commonwealth of Virginia which had seized and was selling unsettled Tory lands. Although Virginia’s Court of Appeals ruled that Hunter had a right to keep the land, the Supreme Court overruled the Virginia court, saying the Jay Treaty with Britain had nullified Virginia’s confiscation laws and, in turn, its sale of land to Hunter. The Virginia Court defied the Supreme Court, saying it lacked jurisdiction in state affairs, that the Constitution was a compact between sovereign states. But Supreme Court Justice Joseph Story responded that “the Constitution of the United States was established not by the states, but, as the preamble declared, by ‘the people of the United States.’”

  What it did: Asserted primacy of treaties as “supreme law of the land” and Supreme Court power to review and void state court decisions.

  Dartmouth College v. Woodward (1819)

  The case: New Hampshire’s state legislature seized Dartmouth College and converted it from a private to a public institution. A state court upheld the takeover, but Marshall ruled that the state charter that created the college was a contract, protected by Article I of the Constitution, prohibiting states from passing “any law impairing the obligation of contracts.” Marshall termed both the law that changed the charter and the state court ruling “repugnant to the Constitution of the United States.”

  What it did: Reiterated constitutional inviolability of contracts, declaring arbitrary state takeovers of private and charitable property and enterprises unconstitutional. The decision protected the property of Americans from arbitrary seizure by state or federal governments.

  McCulloch v. Maryland (1819)

  The case: When Maryland imposed a tax on all banks in the state, James McCulloch, the manager of the Baltimore branch of the federally chartered Bank of the United States, refused to pay, and a county court convicted him of violating state law. After the state court of appeals upheld his conviction, he appealed to the US Supreme Court, which overturned the state court decision, denying a state’s right to tax a federal entity. The Court asserted a new doctrine of implied powers, saying that the Constitution gave the federal government the right to establish a bank or any other agency not specifically prohibited by the Constitution so long as it was consistent with the letter and spirit of the Constitution.

  What it did: Sharply limited state sovereignty, asserting precedence of federal over state laws and declaring the Constitution “the supreme law of the land.” It established principle of federal government’s “implied powers.”
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br />   Cohens v. Virginia (1821)

  The case: When a state court fined the Cohen brothers for violating Virginia’s ban on the sale of out-of-state lottery tickets in Virginia, the Cohens appealed to the Supreme Court. Virginia argued that the Eleventh Amendment* denied the US Supreme Court jurisdiction in local criminal courts, but the Court ruled that the involvement of Congress in establishing the District of Columbia lottery gave the Supreme Court jurisdiction. Moreover, it asserted power to review any and every court decision touching on constitutional issues, thus extending constitutional protection to citizens in even the lowest-level criminal court.

  What it did: Extended Supreme Court protection to all citizens in every court in the land.

  Gibbons v. Ogden (1824)

  What it did: Declared state-sponsored monopolies that interfered with interstate commerce unconstitutional and opened American interstate commerce to free competition.

  The case: When a steamboat firm with federal approval to carry goods and passengers in intracoastal waters threatened the state-granted monopoly of a steamboat company operating between New York City and New Jersey, New York state banned the intracoastal line from New York waters. Marshall ruled that the Constitution gave Congress exclusive rights “to regulate commerce,” which, he said, “describes the commercial intercourse between nations and parts of nations. . . . Commerce among the states does not stop at the boundary line of each state.” He called New York laws prohibiting vessels licensed by the United States from the waters of New York “repugnant to the Constitution and void.”3

  Worcester v. Georgia (1832)

  The case: After the discovery of gold on Cherokee lands in Georgia in the late 1820s, Georgia’s legislature unilaterally dissolved the Indian nation, voided Cherokee laws, seized 9 million acres of Cherokee lands, and forced 130,000 Indians into exile west of the Mississippi River. Without the status of citizens, the Cherokees could not sue. When Samuel Worcester, a Congregationalist minister from Vermont who settled among them, tried to help, Georgia authorities arrested him and sentenced him to four years in prison. Worcester sued, and Marshall’s Court declared Georgia’s Cherokee laws unconstitutional. Marshall ordered Georgia to release the missionaries—but had no means of enforcing his order. For the first time in history a President—Andrew Jackson—backed up a Supreme Court decision with troops.