The Man Who Made the Supreme Court

A review of John Marshall: The Man Who Made the Supreme Court (Basic Books, 2018) by Richard Brookhiser

John Marshall presents a curious problem for Southern history. How can a man, born and bred in the same State, who breathed the same air and shared the same blood with Thomas Jefferson, have been such an ardent nationalist? The same question could be asked of Washington, and to a lesser extent, Henry Clay and Abraham Lincoln. The answer in Marshall’s case is perhaps best explained by his opposition to Jefferson’s Republican faction. Marshall feared both a French-inspired revolution on American soil and the fragmentation of the Union, and to Marshall “nationalism” provided the only tangible remedy for Jacobin terrorism and Jeffersonian democracy. The center had to hold in order to maintain the legacy of the American War for Independence.

Yet, none of those men were original thinkers. That is to say, they were not Alexander Hamilton. Clay and his political acolyte Lincoln rarely had a novel thought and were little more than political opportunists intent on salvaging their own careers.  The “Union” meant whatever was best for Clay and Lincoln. Washington was the “indispensable man,” the glue that held the federal republic together through his persona and reputation, if not his impeccable cavalier rearing, but he was not interested in the finer points of government or in political and economic philosophy.

Marshall does not compare to any of them. He was a political partisan but more of a statesman than either Clay or Lincoln. He styled himself a Washington Federalist without Washington’s refinement and copied Hamilton nearly (if not literally) verbatim in his major decisions. But the Constitution and the American legal system–if not American history–would not be the same without him.

Richard Brookhiser argues in his newest tome that John Marshall “made the Supreme Court.” This might be an understatement. Marshall, more than any other man, is responsible for the way most Americans think about “checks and balances” and “separation of powers.” Marshall almost single-handily saved the independence of the Supreme Court and made it at times the superior branch of government. As Brookhiser tells it, Marshall “brought order” to the chaos of the early American experience. But at what cost? The Brett Kavanaugh circus would not have been possible without Marshall, nor would our “one size fits all” general government be the focal point for every political question in America. That is Marshall’s ultimate legacy.

Brookhiser’s account shows Marshall to be a fairly consistent defender of “popular government,” meaning Marshall placed the power of the general government at the feet of an amalgamous “American people,” what could more accurately be labeled the “one people theory” of the American founding.  Marshall, Brookhiser contends, was a “populist.” He points out that Marshall could be inconsistent, even contradictory, but Brookhiser believes that Marshall was ultimately right in his attempt to arrest the factionalization of the American polity. Marshall feared demagoguery and the petty, narrow political agendas of State actors. To Brookhiser, this was the correct conservative approach, and he is often laudatory of Marshall’s devotion to American nationalism. Unfortunately, Brookhiser highlights the wrong inconsistencies, namely the fabrication and codification of the “one people theory” and his duplicitous statements during the Virginia ratifying convention of 1788.

Historians, Brookhiser included, often label Jefferson’s reading of the Constitution as the “compact theory” of government. The term “compact theory” has become almost a pejorative in American political discourse. It is the burr under the saddle of good government and the antithesis of original intent, but this belies the historical record. The “one people theory” made famous by Marshall’s McCullough v. Maryland decision had very little support during the eighteenth century and was expressly rejected by the “friends of the Constitution” during the ratification process. Marshall himself insisted on the sovereignty of the States in the Virginia ratifying convention. “It is not rational to suppose that a sovereign power should be dragged before a court,” he said. He also suggested that the federal court system would not have the authority to invalidate a State law, even if to Marshall judicial review was the logical and proper purpose of that branch.

Marshall, of course, would do the opposite as chief justice. He knocked down State laws he found repugnant, narrowly interpreted the Eleventh Amendment, which was ratified after Georgia was “dragged before” the Supreme Court, and used the “supremacy clause” to centralize power in the way opponents of the Constitution feared in 1788. Marshall shredded, not buttressed, original intent. That is not how Brookhiser describes it.

Perhaps it is ironic that a Southerner was more responsible for codifying the principles that undermined the federal republic than anyone north of the Mason-Dixon. Hamilton wrote the blueprint, but without Marshall, Hamilton’s nationalist dream would have died in the early nineteenth century through congressional action. There is a reason Jefferson worried about the lasting influence of the federal bench.

That said, as Brookhiser illustrates, Marshall’s nationalism was not Daniel Webster’s. The two were allies, even conspirators, at pivotal points in the rush toward national supremacy, but in contrast to the Senator from Massachusetts, Marshall defended American nationalism as a disinterested political philosopher. Whereas Webster saw nationalism as a way to advance the political and economic interests of New England, Marshall was truly interested in the lasting benefits of the American union, as were all Southern nationalists in the early federal republic. Their design failed, not because of Southern sectionalism, but because of Yankee sectionalism disguised as nationalism. Brookhiser agrees with Joesph Story who eulogized Marshall as “a Federalist of the good old school of which Washington was the acknowledged head.” That brand of federalism and that federalist faction died with Washington in 1799. Marshall clung to a ghost. His rulings allowed a cancerous type of nationalism to metastasize in the American polity, one that would eventually kill the original federal republic and the Constitution as ratified in 1788.

Brookhiser has done an admirable job in condensing Marshall’s thirty years as chief justice into a readable, popular narrative. His portrait rightly places Marshall at the center of every major legal debate of the early nineteenth century, and without question proves that Marshall defined how modern Americans view the powers of the judicial branch. That is not a unique position, but Brookhiser summarizes it better than most.

About Brion McClanahan

Brion McClanahan is the author or co-author of six books, How Alexander Hamilton Screwed Up America (Regnery History, 2017), 9 Presidents Who Screwed Up America and Four Who Tried to Save Her (Regnery History, 2016), The Politically Incorrect Guide to the Founding Fathers, (Regnery, 2009), The Founding Fathers Guide to the Constitution (Regnery History, 2012), Forgotten Conservatives in American History (Pelican, 2012), and The Politically Incorrect Guide to Real American Heroes, (Regnery, 2012). He received a B.A. in History from Salisbury University in 1997 and an M.A. in History from the University of South Carolina in 1999. He finished his Ph.D. in History at the University of South Carolina in 2006, and had the privilege of being Clyde Wilson’s last doctoral student. He lives in Alabama with his wife and three daughters. More from Brion McClanahan

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