Thursday, July 9, 2009

John Marshall: Thinking about the American Revolution

"It is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict with each other, the courts must decide on the operation of each...This is of the very essence of judicial duty."
— John Marshall, in Marbury v. Madison (1803)

While Chief Justice John Jay helped initiate the operation of the United States Supreme Court, it was left up to John Marshall to define the operating scope of that court. This included establishing the Judicial Branch of the Federal government as being co-equal with both the Legislative Branch and the Executive Branch. Marshall was named as Chief Justice just as President John Adams was completing his term in office in 1801. Prior to this appointment, Marshall had been a member of the Virginia House of Delegates and the House of Representatives; he also served as the Secretary of War (for a few days) and the Secretary of State under President John Adams. Once he was confirmed as the Chief Justice of the Supreme Court in 1801, he served in this capacity for thirty-four years!

"The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will."

— John Marshall, Cohens v. Virginia, (1821)

During his tenure on the highest court of the land, John Marshall established many judicial precidents. Let’s take a look at these contributions in both his diplomatic and judicial service…

John Marshall (1755 – 1835)

"Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
— John Marshall, in Wheaton (1819)

“No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass”

— John Marshall

Marshall was appointed by President Adams to a commission to represent the United States in France in 1795. The French, however, refused to negotiate unless the Americans paid them bribes; Marshall rejected such payments and the Directoire (Directorate) expelled Marshall. This precipitated ill-will and became known as the ‘XYZ Affair’ and generated strong anti-French outcries in this country. This drove the Americans towards the British and away from the French.

Note: It must be remembered that this event transpired shortly after the American Revolutionary War, which France helped to finance, as well as at the end of the French Revolution and the ‘Reign of Terror’ with all of its associated atrocities.
In 1799, Marshall was first nominated as Secretary of War in Adams’ cabinet; within a few days Adams changed his nomination to be Secretary of State instead. In this latter role, Marshall negotiated the ‘Convention of 1800’ which ended the ‘Quasi-War’ with France. Then, just before the end of John Adam’s administration, Marshall was nominated as the Chief Justice of the United States Supreme Court. It was in this position that he made his greatest contribution to our new nation.

"The law does not expect a man to be prepared to defend every act of his life which may be suddenly and without notice alleged against him."
— John Marshall, in the Trial of Aaron Burr (1807)

As the Chief Justice, changed many of the high court’s operating procedures. This included changing the way decisions of the court were announced. Prior to his term, each justice announced their finding in sequence, as was common in the courts in Britain and Australia. Instead, the decision of the majority were written as a single opinion, usually by Marshall, and announced to the public; any dissenting opinions were then announced. This procedure, which is still the procedure of the court, made it easier to understand the court’s finding more clearly.
Also, during his term as Chief Justice, Marshall made three major contributions to the judiciary. These changes facilitated the establishment of the court as an equal partner in the government along with the Legislative and Executive Branches. These changes included:
  1. Judicial Review… The court was entitled to review and, if necessary, strike down laws passed by the legislature that violated the U.S. Constitution;
  2. Independence of the Judiciary… The courts are co-equal with the other branches of the government; and,
  3. Federalism… The court could decide the balance between States’ Rights and Federal Rights on important issues, especially in terms of the supremacy of Federal law and the expansion of the enumerated powers of the Constitution.
All three of these principles have enabled our country to adapt to the changing times without the need for further revolutions or rewriting of the Constitution.

"This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

— John Marshall, in Wheaton (1819)

Some of the more important opinions handed down by the Marshall court to solidify the Federal government’s right to over-rule the states. In McCulloch v. Maryland (1819), the court held that states could not tax Federal institutions in their territories as well as upholding the constitutionality of the second Bank of the United States. In Cohens v. Virginia (1821), the court ruled that the Federal judiciary could hear appeals of state court rulings in both criminal and civil cases, thus expanding the appeals process. The Constitution was interpreted by the Marshall court as broadly as necessary to permit the Federal government to respond to emerging issues that would arise as this nation grew and prospered. These were significant rulings that set our nation on a course to become a major power in the modern world.

“The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements”

— John Marshall

“No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass”

— John Marshall

Without Chief Justice John Marshall at the helm of the highest court during this formative period of time, our country may have been fractured into highly-polarized ‘cliques’ to the detriment of our country. The Federal government was placed in the top position when it came to ensuring the rights of the populace, in accordance with the goals of the founding fathers. Yes, we did have a Civil War, but through this system of checks and balances, we survived even that schism and were able to recover from it to become the nation of laws that we have today. We are, in fact, a government ‘of the People, by the People, and for the People’ as the founding fathers would have wanted it…

So we thank you, Honorable John Marshall, for your wisdom, insights, and judicial judgments. Because of your efforts, our country survived and flourished and grew into the great nation we have become today. THANK YOU!

Next Time: We will start wrapping up our examination of our founding fathers by considering the contributions of two ‘honorary’ foreign military men, the Marquis de La Fayette and Friedrich Wilhelm von Steuben. Join us for that exploration…

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