Asked who the most influential Founding Father was, many younger Americans, still in the flush of "Hamilton"-mania, might nominate their new hero, rap lyrics and all. An older generation might stick with the steady stand-by, George Washington. A certain brainy subset – its standard-bearers being the unlikely duo of John F. Kennedy and Christopher Hitchens – would put forward Thomas Jefferson.
And yet for two centuries, American historians and constitutional scholars have championed Jefferson's cousin, John Marshall, whose term as the country's fourth Chief Justice lasted from 1801 to 1835 and revolutionized the role and status of the nation's highest court. This was the prominence Jean Edward Smith sought to bestow on Marshall in his magnificent 1996 biography "John Marshall: Definer of a Nation," and it's certainly the narrative through-line in Joel Richard Paul's new book, Without Precedent: Chief Justice John Marshall and His Times.
Paul is professor of constitutional and international law at the University of California Hastings Law School, and time and again, this is the standout strength of his book. He brings to Marshall's career exactly the kind of perspective that a legal scholar can best provide – and that's often needed, especially considering the sheer amount of legend that's grown up around Marshall the legal titan.
Some of that legend is entirely factual, of course. Marshall served as Chief Justice for 34 years and so thoroughly dominated its business that most of its rulings were unanimous, and many of those rulings have been quoted and referenced so many times since their original publication that they seem as much a part of American jurisprudence as the Constitution itself. Paul can be skeptical about those rulings, including the most famous ruling of them all, Marbury v. Madison; Paul rightly comments that “Marshall wove together his decision so artfully that few people noticed the flaws in its stitching” – noting that the Court actually had no jurisdiction to rule on the case, Paul calls the ruling “merely gratuitous and arguably improper.”
This kind of skepticism is refreshing because it's so rare; Marshall tends to prompt the same kind of hagiography that's lavished on most of the Founding Fathers. And even as tough a biographer as Paul yields to the temptation – unfortunately, on the subject that least deserves it: slavery.
Paul writes that “Marshall owned between seven and sixteen household slaves” and declares that these slaves were well-treated. He makes no mention of the profitable plantations – and their many dozens of slaves – Marshall owned from the 1790s onward; when he writes that Marshall profited from slavery “indirectly,” he's simply wrong. And the error is severely compounded when he writes that as a Supreme Court justice Marshall “forcefully condemned the slave trade as a crime against natural law.” While on the Court, Marshall never wrote an opinion in opposition to slavery, and for his entire adult life, he was an active, profiteering slave owner and trader. Obscuring these facts makes for tidy hero-worship but misleading biography.
Paul takes readers through the first half of Marshall's life with brisk authority: his birth in a log cabin on the Virginia frontier, his schooling, his military service in the American Revolution under George Washington, his budding political career in Virginia and in the administration of John Adams, who appointed him Chief Justice in 1801 after Adams' first pick turned down the job.
The narrative of "Without Precedent" picks up momentum when relating the turbulent legal and political infighting of the Chief Justice years, during which Marshall fought steadily to separate the judiciary from the legislative and executive branches of government and indeed establish it as superior to either, beholden neither to fads nor to constituencies, loyal only to the Constitution. In many of these struggling years, the foil of the story is Thomas Jefferson: “Jefferson, as the heir to wealth and privilege, romanticized the common man,” Paul writes. “Marshall, as the common man, defended the rights of landholders and creditors….”
When the story winds its way to Marshall's death in 1835, Paul looks ahead to the coming years of national division and writes, “[Marshall] had the courage of his imagination, the wisdom to find common ground, and the grace to hold together a fragile union. With his passing, who would save the Union now?”
The question sounds rhetorical, but the answer is: Abraham Lincoln.