It
is said that this country has been governed since 1787 by three
constitutions: the limited one drawn up at Philadelphia; the one
formulated by the judicial decisions of John Marshall; and the
Constitution as modified by the radical Reconstruction Amendments. John
Marshall’s political and judicial activism lives on today as the Supreme
Court freely makes law as the legislative branch stands idly by.
Bernhard Thuersam
The Original Judicial Lawmaker
“As
a Supreme Court judge, Marshall was dominated by his Federalist
principles. He was never learned in the law, he knew little concerning
the principles of economics, and he was very indolent. His five-volume
biography of Washington was lifeless and full of plagiarisms.
Nevertheless, he was a man of powerful intelligence and reasoning
ability.
His
judicial decisions were based largely on his splendid common sense his
strong Federalist bias. Many of his opinions ranged far outside of the
strict limits of the case and would be regarded as obiter dicta from the
standpoint of a narrow definition of the judicial function.
His
Federalist prejudices, however, happened to correspond with . . .
strengthen[ing] the central government. These prejudices, or principles
if you will, were a decided leaning in favor of property rights and an
equally strong feeling of nationalism. During the long period when he
was Chief Justice, his decisions were usually at variance with the
prevailing views and the economic interests of his native section, the
South.
Indeed,
he bitterly disliked and distrusted his cousin, Thomas Jefferson, and
the latter’s political principles, which became the faith of the
Southern States. Marshall showed a deep distrust of the extension of
political democracy. In this prejudice, he represented the Hamilton
view of government.
[In
his famous] decisions, such as the Marbury versus Madison Case (1803) .
. . he established the power of the Supreme Court to declare a law of
Congress unconstitutional. [In] Fletcher versus Peck (1810), [Marshall]
greatly curtailed the powers of State governments [and] set a precedent
of the Supreme Court declaring a State law unconstitutional. In
McCulloch versus Maryland (1819), Marshall definitely rejected . . . the
strict interpretation of [the United States Constitution].
Rather,
he put the imprint of judicial powers upon the implied powers doctrine
of Hamilton and thus tremendously expanded the Federal power.
[In]
Cohens versus Virginia (1821) . . . Marshall ruled that the Supreme
Court could review and reverse decisions of the highest State courts and
that, despite the Eleventh Amendment, the Supreme Court could hear
cases on appeal from individuals against States if the latter had
originally instituted the suit. [Virginians criticized] Marshall’s
decision as overthrowing the rightful balance between the Federal and
the State governments.
Marshall
dominated the Supreme Court almost as an autocrat. When [President]
Madison appointed a Republican, Joseph Story, as associate justice,
Story was converted by Marshall to his nationalist views. Marshall was a
judicial lawmaker rather than a learned and objective judge.”
Outstanding excerpt. Thank you, Brock. It is mainly these historical snippets that bring me here daily.
ReplyDeleteRJM III
Certainly. I grew up in Marshall (Salem during the War) and always thought he was a hero being reminded that the liberty bell cracked when it toiled the death of John Marshall, now I realize it cracked because of his anti-freedom decisions.:)
Delete